I have not yet read this paper, but I plan to:
Alice Ristroph
Seton Hall University - School of Law
Melissa E. Murray
University of California, Berkeley - School of Law
Tuesday, April 20, 2010
I have not yet read this paper, but I plan to:
A few days ago, Paul Moses blogged about the recently announced decision by the Archdiocese of Indianapolis to convert some Catholic schools into (public) charter schools . . . and to run those schools through "a corporation that it controls."
I realize that many well meaning people have a different view, but -- in my opinion -- this is a bad development. Catholic education is a treasure, and it is (to put it mildly) in crisis. This move by the Archdiocese of Indianapolis is not an effective response. There are exciting things happening -- glimmers of hope -- in Catholic education; moves like this are set-backs, I think.
Now, I do not think that the Constitution, well understood, prevents the Archdiocese prevents it from doing what it is doing. If it is willing to run no-religion schools, then the Constitution does not forbid them from doing so. But . . . why would the Archdiocese, given all the givens, what to run no-religion schools?
Here, from the Ignatius Press blog, is a collection of reflections on the Pope's fifth anniversary. Fr. James Schall's, on the Pope as "scholar", caught my eye:
The three functions traditionally attributed to a pope are to teach, to sanctify, and to rule. The first function means keeping the revelation that was handed to Peter and the apostles intact and known to men. The second concerns the sacramental and prayer side of human life, primarily with the integrity of the Eucharist. The third function is the daunting task of appointing and guiding bishops and other leaders in the Church. The Lord told Peter to strengthen the brethren. Most people recognize that they need it. Many think this latter function is the most crucial and difficult of all.
Popes need to exercise courage in all three areas. The most difficult thing consists in telling the truth in a world, as Pope Ratzinger often says, that is relativist and is no longer willing to hear the truth of things, particularly divine things and increasingly of human things, lest it might affect the way they live. . . .
The present Pope is easily the most learned man in public life in the world today. I have the impression that academia and the media know this as a fact but dance gingerly around it, fascinated yet leery. They “feel” in their bones, however, that he cannot really know anything important. . . .
Saturday, April 17, 2010
I have an op-ed in today's "weekend" edition of the Wall Street Journal called "The Minority Court" (I didn't pick the title). Here's a bit . . .
Those who founded our nation would certainly have been surprised by much of what goes on now at the Supreme Court—free-speech cases about online child pornography, search-and-seizure disputes involving thermal-imaging devices, and so on. Even more surprising to them than the Court's work, though, would have been the Court's current makeup. Its nine members include two Jews and six Roman Catholics. And Justice John Paul Stevens, the Court's lone Protestant member, recently announced his plans to step down. . . .
Certainly, the Court's current lineup confirms the long distance traveled since crude and bizarre anti-Catholic polemics and conspiracy theories helped to sink the 1928 presidential campaign of Al Smith, or the days when the unabashedly anti-Semitic Justice James McReynolds refused to speak to his Jewish colleague, Justice Brandeis. More curious than the increasing numbers of Catholics and Jews on the Court is the possible disappearance of Protestants. Diminishing prejudice helps to account for why a country that is 2% Jewish has a Supreme Court with two Jewish justices, but it would not seem to explain why the Court of a nation that is half-Protestant might soon have no Protestants. . . .
Whatever the explanation for the Court's current religious makeup, and for the possible (though certainly temporary) absence of Protestant justices, it should be remembered and emphasized that all judges—Protestants, Catholics, Jews and all the rest—have views, commitments and experiences that shape their thinking and understanding. We should not ask or expect judges to put all this aside when they put on their judicial robes. Instead, we should ask and expect them to work conscientiously in every case to identify not their own preferred outcome but, to the extent possible, the answer that is given by the best reading of relevant legal texts, rules and precedents.
Wednesday, April 14, 2010
The Connecticut Catholic Conference is urging Catholics to oppose the enactment of H.B. 5473, which would "completely eliminate the existing 30 year statute of limitations relating to sexual abuse of a minor." To its credit, the Hartford Courant (not exactly an apologist for sexual abuse by clergy) highlighted, in this editorial, the un-wisdom of this proposal. As the Conference states:
Tuesday, April 13, 2010
A fascinating op-ed, in The New York Times, by the often-fascinating Stanley Fish, "Does Reason Know what it is missing?" Here's a bit (presenting Habermas):
What secular reason is missing is self-awareness. It is “unenlightened about itself” in the sense that it has within itself no mechanism for questioning the products and conclusions of its formal, procedural entailments and experiments. “Postmetaphysical thinking,” Habermas contends, “cannot cope on its own with the defeatism concerning reason which we encounter today both in the postmodern radicalization of the ‘dialectic of the Enlightenment’ and in the naturalism founded on a naïve faith in science.”
Postmodernism announces (loudly and often) that a supposedly neutral, objective rationality is always a construct informed by interests it neither acknowledges nor knows nor can know. Meanwhile science goes its merry way endlessly inventing and proliferating technological marvels without having the slightest idea of why. The “naive faith” Habermas criticizes is not a faith in what science can do — it can do anything — but a faith in science’s ability to provide reasons, aside from the reason of its own keeping on going, for doing it and for declining to do it in a particular direction because to do so would be wrong.. . .
As Norbert Brieskorn, one of Habermas’s interlocutors, points out, in Habermas’s bargain “reason addresses demands to the religious communities” but “there is no mention of demands from the opposite direction.” Religion must give up the spheres of law, government, morality and knowledge; reason is asked only to be nice and not dismiss religion as irrational, retrograde and irrelevant. The “truths of faith” can be heard but only those portions of them that have secular counterparts can be admitted into the realm of public discourse. (It seems like a case of “separate but not equal.”) Religion gets to be respected; reason gets to borrow the motivational resources it lacks on its own, resources it can then use to put a brake on its out-of-control spinning.
The result, as Michael Reder, another of Habermas’s interlocutors, observes, is a religion that has been “instrumentalized,” made into something useful for a secular reason that still has no use for its teleological and eschatological underpinnings. Religions, explains Reder, are brought in only “to help to prevent or overcome social disruptions.” Once they have performed this service they go back in their box and don’t trouble us with uncomfortable cosmic demands. At best (and at most), according to Habermas, “the encounter with theology,” like an encounter at a cocktail party, “can remind a self-forgetful secular reason of its origins” in the same “revolutions in worldviews” that gave us monotheism. (One God and one reason stem from the same historical source.)
But Habermas gives us no reason (if you will pardon the word) to believe that such a reminder would be heeded and lead to reason’s being furnished with the motivation-for-solidarity it lacks. Why would secular reason, asked only to acknowledge a genealogical kinship with a form of thought it still compartmentalizes and condescends to, pay serious attention to what that form of thought has to offer? By Habermas’s own account the two great worldviews still remain far apart. Religions resist becoming happy participants in a companionable pluralism and insist on the rightness, for everyone, of their doctrines. Liberal rationality is committed to pluralism and cannot affirm the absolute rightness of anything except its own (empty) proceduralism.
The borrowings and one-way concessions Habermas urges seem insufficient to effect a true and fruitful rapprochment. Nothing he proposes would remove the deficiency he acknowledges when he says that the “humanist self-confidence of a philosophical reason which thinks that it is capable of determining what is true and false” has been “shaken” by “the catastrophes of the twentieth century.” The edifice is not going to be propped up and made strong by something so weak as a reminder, and it is not clear at the end of a volume chock-full of rigorous and impassioned deliberations that secular reason can be saved. There is still something missing.
Go here for Scot Powe's review of Donald Drakeman's Church, State, and Original Intent (Cambridge). The book is first-rate, in my view. (Full disclosure: I blurbed the book for the press.)
After a generally helpful review, Powe concludes, oddly, with a clunky pivot to the observation that "[t]hree years ago, the Supreme Court ignored its own recent decision and ruled by a 5-4 margin that Congress could ban the procedure known as partial birth abortion" (I don't think it did, but never mind) and a reminder that Geof Stone had suggested, controversially, that the Court's decision might have something to do with the fact that the five justices in the majority are Catholic. (I responded to Geof here.) Powe then concludes:
A number of conservative Catholic legal scholars have shown support for Drakeman’s conclusion. It is conceivable that a Supreme Court Justice might rely on Drakeman (with or without citation) for a Catholic interpretation of the Establishment Clause; and while decades ago Cardinal Francis Spellman had to lobby President Eisenhower to add a single Catholic to the Court (Ike picked William Brennan, who voted as a separationist and favored Roe v. Wade), six of the nine Justices are now Catholic. Church, State, and Original Intent is not priced for a wide readership, but if it gets the right five readers, it could have a major impact.
There are, it is true, a number of "conservative Catholic legal scholars" (and many others) who agree (as I do) with Prof. Drakeman that the Establishment Clause was misinterpreted, in the parochial-school cases of the 1970s and 1980s, as requiring strict "no aid" separationism. But, this agreement does not make Drakeman's interpretation a "Catholic" interpretation, and a Catholic justice who voted in accord with Drakeman's interpretation would not be adopting (or imposing) a "Catholic" interpretation. Nor would the fact that a Catholic justice (or legal scholar) embraced it make the interpretation "Catholic."
To be sure, there are "Catholic" ways of thinking about religious freedom and church-state relations. For a good start, go here. Or here. Or, if you want to help my SSRN count, here.
Michael linked, the other day, to my friend Andy Koppelman's provocatively titled post, "How the Religious Right Promotes Abortion." (Obviously, Andy does not use the word "promote" to suggest that abortion-increases are intended by the "religious right." He claims, instead, that "its most stalwart proponents have succeeded in implementing and maintaining policies that keep the abortion rate high.")
Like the claim that was swirling around in the blog-ether in the run-up to the health-care vote -- i.e., that the experiences of other countries show that universal health-care coverage reduces abortions -- Andy's claims did not ring true to me and, it turns out, are incomplete, as Michael New explains at Public Discourse. That they are inaccurate, no doubt, as a disappointment to those who -- whether or not they care about abortion rates -- enjoy the frisson that accompanies epater-ing les "religious right"-ers, (I would not include Andy in this category, since he has always struck me as a fair-minded and charitable scholar-citizen.) Or, maybe not, since -- in my experience, anyway -- there are some "just so" claims (e.g., publicly funded contraception, not legal regulation of abortion, most effectively reduces abortion) that travel through our conversations and for which evidence is convenient but hardly necessary.
Here is New's conclusion:
Andrew Koppelman is the latest in a long line of pro-choice commentators to try to make the case that the best strategy for lowering the abortion rate is not, greater legal protection for unborn children, but rather, more funding for contraception and comprehensive sex education. Unfortunately, the available research and data do not support his arguments. There is no solid evidence that greater federal funding for contraceptives lowers abortion rates. Furthermore, contrary to the claims of Koppelman there exists evidence that well designed abstinence education programs are able to reduce teen sexual activity.
However, the best way to empirically test Koppelman’s claims are to simply analyze abortion data from the state level. If Koppelman’s claims are correct, then sexually permissive, contraceptive friendly blue states should have the lowest abortion rates. However, that is not the case. Data from both the Centers for Disease Control and the Alan Guttmacher clearly indicate that abortion rates are significantly lower in red states than in blue states. Furthermore, the states where Republican Presidential nominees receive the most support have far lower abortion rates than those states where Democratic Presidential nominees perform the best. Simply put, state level data offer no support for Koppelman’s argument.
Overall, it should come as no surprise to pro-lifers that sexual restraint and greater legal protection for the unborn has been and will continue to be the best strategy for lowering abortion rates. The pro-life movement would do well to stay the course. . . .
Sunday, April 11, 2010
Yesterday, in the Basilica of the Sacred Heart, on the campus of the University of Notre Dame, I witnessed the ordination of two friends, Gerry Olinger (my former student) and Kevin Grove. It was an amazing, beautiful day. More than 100 priests -- many of whom are very close to my family -- concelebrated, and Peoria's (wonderful) bishop, Dan Jenky, presided. My 8-year-old son, who has probably played football with a dozen of these priests, and who has said that, "after he retires from the NFL," he wants to be one, too, was mesmerized. (He had the best seat in the house.) As they were processing out, probably twenty gave him "high fives."
These men have so blessed my life. I am grateful to God for calling now-Frs. Grove and Olinger to the priesthood, and to them for answering. What courage it shows, saying "yes" in these days, knowing that the joys of one's vocation will almost certainly be accompanied by unwarranted suspicion, snide jokes, and malicious attacks! It was tempting for me, during the mass, to dwell resentfully on the fact that, despite the best efforts of some, I would certainly trust any one of them with the lives and well being of my children far more than I would a drawn-at-random plaintiff's lawyer, religion-beat journalist, or public-school administrator. But, the occasion was just too happy, too joyful to stew for long about that. Instead, I just thanked God for raising up these "men with hope to bring."