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.

Tuesday, August 10, 2010

Ex Corde, Catholic identity, universities, etc.

At his new-ish "Distinctly Catholic" blog, Michael Sean Winters is collecting and posting a series of interviews and posts on Ex Corde Ecclesiae.  In this one, Michael writes, with respect to the debate about the University of Notre Dame's decision to confer an honorary degree on President Obama:

 First of all, Obama is not a Catholic, and different rules can and should apply to how we consider the honoring of Catholics and non-Catholics. I do not hold him accountable for understanding Catholic Social Teaching. Secondly, there are many politicians who may or may not be morally opposed to abortion but think that the coercive power of law is not the appropriate tool for preventing the incidence of abortion. This position can easily go too far as well, falling into the lame “I am personally opposed, but…” position held by many pro-choice Democrats. Nonetheless, as Bishop Tobin demonstrated so convincingly on “Hardball,” deciding how to determine what civil penalties to attach to abortion is not such an easy task. . . .

My own views on the Obama-degree dust-up are familiar (if not yet tiresome) to regular MOJ readers.  And, to be clear, there are other things in Winters's post with which I agree entirely.  But, with respect to this paragraph, two quick thoughts:  First, and in response to his "secondly", he is right that there are such politicians, but I do not think that President Obama is one of them.  He really believes, I think, that the right to abortion is fundamental, legally and morally.  But, let's put this point aside, for the moment.  With respect to the "first" point:  I don't see why it should matter, when thinking about the decision by Notre Dame to give President Obama an honorary degree, whether or not the President is Catholic.  The question, as I see it, is whether the conferring of an honorary degree on X by a Catholic university "says" something about what that university deems honorable that a Catholic university ought not to say.  As I put it elsewhere:

The question on the table is not whether Notre Dame should hear from the president but whether Notre Dame should honor the president. A Catholic university can and should engage all comers, but in order to be true to itself — to have integrity — it should hesitate before honoring those who use their talents or power to bring about grave injustice. The university is, and must remain, a bustling marketplace of ideas; at the same time, it also has a voice of its own. We say a lot about who we are and what we stand for through what we love and what we choose to honor. The controversy at Notre Dame is not about what should be said at Catholic universities, but about what should be said by a Catholic university. . . .

Anyway, check in tomorrow at "Distinctly Catholic" for the thoughts of Fr. Robert Imbelli, whose posts at Commonweal's blog are familiar to and appreciated by all of us.

Friday, August 6, 2010

More on "activism"

Patrick makes a good point, of course, that the "activism" charge -- lobbed against conservatives in the early 20th century, then against liberals in the 1960s and 70s, and now (again) against the Rehnquist and Roberts Courts -- can be frustratingly contentless.  For some thoughts of mine about what could be the content of the charge, see this exchange between Kim Roosevelt and me, about his then-new book, "The Myth of Judicial Activism."   Roosevelt wrote (among other things) that:

. . . “judicial activism,” as the phrase is typically used, is essentially empty of content; it is simply an inflammatory way of registering disapproval of a decision. It is supposed to indicate that a judge has decided a case based on personal policy preferences rather than law. . .

And I wrote (among other things) that:

[I]n his recent Walter F. Murphy Lecture, “Constitutional Virtues” (published in the Green Bag), Professor H. Jefferson Powell took up the question, why does the Constitution bind? Does it have, and how does it have, “legitimate authority?” Along the way to answering that question, he identifies “humility” as a constitutional virtue, and defines it as:

the habit of doubting that the Constitution resolves divisive political or social issues as opposed to requiring them to be thrashed out through the processes of ordinary, revisable politics. . . . [t]his virtue manifests itself in the continuing recognition that the Constitution is primarily a framework for political argument and decision and not a tool for the elimination of debate.

It seems to me that “judicial activism” might be salvaged, and used as a way of identifying and criticizing decisions—such as, in my view, Casey—that fail to demonstrate this virtue. . . .

Monday, July 26, 2010

Kagan, the Court, and Religious Liberty

Here is an op-ed of mine, which appeared in today's edition of USA Today, about the Court's recent (and upcoming) religious-liberty decisions, and about the way that a Justice Kagan should approach such cases.  A bit:

 . . . What does Kagan's embrace of both judicial responsibility and restraint tell us about how she would have approached, or will approach, such cases? We know that she will, in general, be a reliably "liberal" or "progressive" voice on the court, but will she follow in Justice Stevens' footsteps when it comes to religious liberty?

As she told the Judiciary Committee, the First Amendment ensures that religion "never functions as a way to put people, because of their religious belief or because of their religious practice, at some disadvantage with respect to any of the rights of American citizenship." "You are a part of this country," she insisted, "no matter what your religion is." She was right. Our Constitution protects religious liberty and welcomes religion in public life, but the criteria for membership in our political community are secular. Clearly, courts have a role to play in policing these criteria and making sure that "rights of American citizenship" are never made to depend on religious professions or practices.

But what is that role, and how should it be exercised? The ability of unelected judges to identify those government actions that actually "establish" religion is limited, and so is their authority to second-guess others' policy decisions. It is not just the responsibility of judges, but also of legislators, public officials and voters, to be good stewards of our "blessings of liberty" and to guard against political exclusions on religious grounds. . .. 

Comments are open.

Friday, July 2, 2010

A thought about the Declaration, the Quebec Act, the Church, and Religious Freedom

This weekend, we in the United States of America celebrate our Declaration -- and, in time, our achievement -- of Independence.  We should hope that more than a few of our fellow citizens will mark Independence Day by actually reading the Declaration.  Stirring stuff.  (Peggy Noonan has an interesting reflection on some words of Jefferson's that were cut out, here.)

Most people, if they are familiar with Declaration at all, know about the "course of human events" and "truths to be self evident" parts.  I encourage my first-year law students, though, to read through the bill of particulars against the King, the facts about his "injuries and usurpations" that the Declaration "submit[s] to a candid world."  Among these, interestingly, is a complaint about the Quebec Act of 1774, which (among other things) admitted Roman Catholics to full citizenship in Quebec.  This Act outraged the American colonists, as Steve Waldman reports:

Alexander Hamilton decried the Quebec Act as a diabolical threat. "Does not your blood run cold to think that an English Parliament should pass an Act for the establishment of arbitrary power and Popery in such an extensive country?…Your loves, your property, your religion are all at stake." He warned that the Canadian tolerance in Quebec would draw, like a magnet, Catholics from throughout Europe who would eventually destroy America.

Sam Adams told a group of Mohawk Indians that the law "to establish the religion of the Pope in Canada" would mean that "some of your children may be induced instead of worshipping the only true God, to pay his dues to images made with their own hands." The silversmith and engraver Paul Revere created a cartoon for the Royal American Magazine called "The Mitred Minuet." It depicted four contented-looking mitred Anglican Bishops, dancing a minuet around a copy of the Quebec Act to show their "approbation and countenance of the Roman religion." Standing nearby are the authors of the Quebec Act, while a Devil with bat ears and spiky wings hovers behind them, whispering instructions. . . .

So, anti-Catholicism fanned flames of a rebellion that would, in time, yield an approach to religious-freedom-under-law that, some say, inspired the content and foundations of the Catholic Church's Declaration on Religious Freedom.  And so it goes . . . 

Inazu, Smith, and Cochran on the CLS case

John Inazu (Duke) has a worth-reading blog post on the CLS case here (at "The Faculty Lounge") and an op-ed on the case ("Siding with Sameness"), in the Raleigh News & Observer, here.  He says, among other things:

Martinez at its core involved a clash between equality and diversity, and in this case, diversity should have prevailed.  As I note in my op-ed, Justice Alito’s warning that Monday’s decision “is a serious setback for freedom of expression in this country” doesn’t go far enough.  Expression presupposes existence.  And Martinez doesn’t silence the Christian Legal Society at Hastings—it destroys it.

That being said, this is a hard case. . . .

Also (as always) worth reading and thinking about is what Steve Smith (San Diego) has to say about the case, at "Law, Religion & Ethics":

To be sure, a law school should not be required to admit every type of speaker to its forum. I would think that the school might permissibly deny the benefits of its forum to, say, advocates of genocide, to give just one example. But it is deeply troubling that among the ample spectrum of views and voices that Hastings welcomes, a traditional Christian voice is the one that the school in fact singled out for exclusion.  And the fact that the school attempted to defend its exclusion by concocting a policy that could in principle exclude other “voices” as well does not negate the conclusion that the school is excluding voices from the community of its forum.  It is even more troubling that a majority of Supreme Court Justices see no problem with that exclusion.

Also writing at LRE, Bob Cochran asks:

The Court framed its decision narrowly, but the decision’s principle seems to me to be huge.  The opinion creates risks for any religious group (maybe any group) that takes a position on anything and receives government funding.  The government can water down the position of any group by requiring an “all comers” policy.  Would this allow, for example, a state to require that religious colleges take all comers on its faculty, permitting discrimination based only on “neutral and generally applicable membership requirements unrelated to ‘status or beliefs’”

S.G. Kagan discusses religious freedom

More here.  Any reactions?  Comments open.

Congrats to John O'Callaghan

My colleague (and MOJ-friend) John O'Callaghan has been appointed to the Pontifical Academy of St. Thomas.  (He is, I gather, one of only 4 American members.) 

Established in 1879 by Pope Leo XIII to promote the study of the thought of St. Thomas and to bring it into engagement with contemporary culture, the Pontifical Academy of St. Thomas has 50 members. O’Callaghan, an associate professor of philosophy at Notre Dame whose scholarship concerns medieval philosophy and Thomistic metaphysics, is one of four academy members from the United States.

“We Thomists don’t study Aquinas merely because we find his thought historically interesting, although it is,” O’Callaghan said. “We study it because we think lasting truth is to be found there. Notre Dame is nearly unique for the resources it devotes to continuing the study of, and promoting the relevance of St. Thomas and medieval philosophy to contemporary philosophy in the English speaking world. So I think this honor acknowledges the importance of philosophy in the Catholic tradition at Notre Dame as much as it honors me.”

Congratulations, John!

Wednesday, June 23, 2010

St. Thomas Garnet

On this day, in 1608, St. Thomas Garnet was martyred at Tyburn.  Here's more about him:

Protomartyr of St. Omer and therefore of Stonyhurst College; b. at Southwark, c. 1575; executed at Tyburn, 23 June, 1608. Richard Garnet, Thomas's father, was at Balliol College, Oxford, at the time when greater severity began to be used against Catholics, in 1569, and by his constancy gave great edification to the generation of Oxford men which was to produce Campion, Persons and so many other champions of Catholicism. Thomas attended the Horsham grammar school and was afterwards a page to one of the half-brothers of Philip Howard, Earl of Arundel, who were, however, conformists. At the opening of St. Omer's College in 1592, Thomas was sent there. By 1595 he was considered fit for the new English theological seminary at Valladolid, and started in January, with five others, John Copley, William Worthington, John Ivreson, James Thomson, and Henry Mompesson, from Calais. They were lucky in finding, as a travelling companion, a Jesuit Father, William Baldwin, who was going to Spain in disguise under the alias Ottavio Fuscinelli, but misfortunes soon began. After severe weather in the Channel, they found themselves obliged to run for shelter to the Downs, where their vessel was searched by some of Queen Elizabeth's ships, and they were discovered hiding in the hold. They were immediately made prisoners and treated very roughly. They were sent round the Nore up to London, and were examined by Charles, second Lord Howard of Effingham, the lord admiral. After this Father Baldwin was sent to Bridewell prison, where he helped the confessor James Atkinson to obtain his crown. Meantime his young companions had been handed over to Whitgift, the Archbishop of Canterbury, who, having found that they encouraged one another, sent them one by one to different Protestant bishops or doctors. Only the youngest, Mompesson, conformed; the rest eventually escaped and returned to their colleges beyond seas after many adventures. We are not told specifically what befell young Garnet, but it seems likely that he was the youth confined to the house of Dr. Richard Edes (Dict. Nat. Biog., XVI, 364). He fell ill and was sent home under bond to return to custody atOxford by a certain day. But his jailer not appearing in time, the boy escaped, and to avoid trouble had then to keep away even from his own father. At last he reached St-Omer again, and thence went to Valladolid, 7 March, 1596, having started on that journey no less than ten times.

After ordination in 1599, "returning to England I wandered", he says, "from place to place, to reduce souls which went astray and were in error as to the knowledge of the true Catholic Church". During the excitement caused by the Gunpowder Plot in 1605 he was arrested near Warwick, going under the name Thomas Rokewood, which he had no doubt assumed from Ambrose Rokewood of Coldham Hall, whose chaplain he then was, and who had unfortunately been implicated in the plot. Father Garnet was now imprisoned first in the Gatehouse, then in the Tower, where he was very severely handled in order to make him give evidence against Henry Garnet, his uncle, superior of the English Jesuits, who had lately admitted him into the Society. Though no connection with the conspiracy could be proved, he was kept in the Tower for seven months, at the end of which time he was suddenly put on board ship with forty-six other priests, and a royal proclamation, dated 10 July, 1606, was read to them, threatening death if they returned. They were then carried across the Channel and set ashore in Flanders.

Father Garnet now went to his old school at St-Omer, thence to Brussels to see the superior of the Jesuits, Father Baldwin, his companion in the adventures of 1595, who sent him to the English Jesuitnovitiate, St. John's, Louvain, in which he was the first novice received. In September, 1607, he was sent back to England, but was arrested six weeks later by an apostate priest called Rouse. This was the timeJames's controversy with Bellarmine about the Oath of Allegiance. Garnet was offered his life if he would take it, but steadfastly refused, and was executed at Tyburn, protesting that he was "the happiestman this day alive". His relics, which were preserved at St-Omer, were lost during the French Revolution.

Today is also, FWIW, the birthday of my son, Thomas Garnett.  Pretty cool.

Monday, June 21, 2010

Riley-Smith on the Crusades

It seems to me -- and has seemed to me for a while -- that a distressing large number of educated and engaged people have embraced -- either uncritically or insufficiently critically -- inaccurate and often tendentious narratives about historical events, developments, and personalities involving the Church.  Whether the question involves the causes and characteristics of the so-called "Dark Ages" or the rise of America's common-school system, it too often seems that an I-would-have-thought-by-now-discredited-or-at-least-problematized "whiggish" bias shapes the telling of the relevant stories and that even Catholics (perhaps in an effort to over-compensate for some other Catholics' "triumphalism") buy and repeat them.

So, I'm reading this summer (among other things) Jonathan Riley-Smith's The Crusades:  A History (buy it here), and encourage other Catholics who aspire to an accurate (and therefore instructive) understanding of the past to read it, too.  At the very least, the book helps with the task of ministering to the poor souls who sat through Ridley Scott's Kingdom of Heaven (link).

Here, by the way, is a review by the great scholar of late antiquity, Robert Louis Wilken, of two other Crusades-related books:

. . . The recorded past and the remembered past are seldom the same. Nowhere is this more evident than with the Crusades. . . .

[T]he "remembered" history of the Crusades might better be called an imagined or invented history. Mr. Asbridge, a senior lecturer at Queen Mary University of London, puts it this way: The Crusades "have come to have a profound bearing upon our modern world, but almost entirely through the agency of illusion." Mr. Phillips, a professor of history at Royal Holloway University of London, says that we have seen only "shadows of the crusades, not true shapes." . . .

Sunday, June 6, 2010

O'Neill on "Religion and the Judiciary"

This post, "Religion and the Judiciary" -- about the relevance of judges' religious faith -- from the "U.K. Supreme Court blog"("SCOTUK?"), by MOJ-friend Aidan O'Neill, is worthy reading and thinking about.  (Among other things, the post is a reminder that even someone as gifted as Ronald Dworkin will sometimes say shockingly unhinged things.  Aidan's post quotes an example.)  Aidan's interesting post closes with this:

What the religiously motivated find difficult to understand or accept is that the freedom from discrimination on grounds of religion or belief which has been afforded them by the law does not extend to giving the religious a general right to discriminate (on otherwise unlawful grounds such as sex, age, race, disability, or sexual orientation) on the basis of religion or belief.    There will undoubtedly be more litigation – if not further legislation – on this whole vexed issue.   The UK tradition of being blind to our Justices’ religion will come to be further strained as a result.

If the term "does not extend" is meant to be used descriptively -- that is, to report that, in fact, the laws in the U.K. are not understood to protect religiously motivated "discrimination" -- then, of course, I have to defer to Aidan, who knows far more about the laws in the U.K. than I do.  If, though, the suggestion is that the laws should not distinguish between (irrational, invidious, etc.) "discrimination," on the one hand, and "religiously motivated decisions about employment and related matters by religious institutions and authorities," on the other, then I'd have to disagree.

UPDATE:  Aidan wrote to me, and said -- in response to the above -- that "[t]he phrase 'does not extend'  from the passage you quote, was indeed being used being used be me purely descriptively rather than implying any prescriptive judgment on my part."  He added, "[t]he law is still very recent on all this and the case law has yet fully to develop.  At the moment however the relevant government quango intervening on matters of discrimination , the Equality and Human Rights Commission, seems very much to be running the line that religion cannot and should not be recognised as providing any kind of lawful basis for making choices in employment or service provision on the basis of the employee/service recipient’s sexual orientation.  But as you know in the UK we have a quite different history and perception of the right role of religion in society, favouring establishment and presuming state regulation of religious bodies, rather than assuming any strict separation between the two sphere which so marks out US jurisprudence on the issue."