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, March 12, 2010

Kaveny on the Montana assisted-suicide decision

My colleague, Cathy Kaveny, has a thoughtful and illuminating essay in Commonweal about the Montana Supreme Court's recent (and under-remarked) assisted-suicide decision.  A bit:

. . . [T]he majority recognized that in Montana (as elsewhere) public policy does not allow the victim to give legally valid consent to crimes destructive of the person, such as assault. The majority attempted to distinguish this situation from PAS by saying that the public-policy exception applied centrally to “violent, public altercations [that] breach public peace and endanger others in the vicinity.” In contrast, it argued, death by PAS is “peaceful and private.”

 This line of reasoning fundamentally misconstrues what counts as “private.” Our legal tradition has always recognized that when one member of the community seriously injures or takes the life of another, it is always an issue of public concern—no matter where it might take place or how serene the action itself might appear. The opinion’s requirement that the consensual attack be  “private” and  “peaceful” doesn’t hold up under examination. An assault consisting of a consensual strangling in a hotel room won’t spark a riot, nor will the consensual smothering of one sleeping spouse by the other. But these are still matters of public concern. . . .

Thursday, March 11, 2010

Review of Perry's not-quite-latest book

It appears to be the time for MOJ bloggers to review MOJ bloggers' books in Commonweal.  And, it tells you something about how prolific our colleague Michael Perry is that his latest book is out before I manage to finish my review of his next-to-latest book.  Oh well.  Commonweal has my review of Michael's "Constitutional Rights, Moral Controversy, and the Supreme Court" here.  As MOJ readers might recall, I believe that Michael's (commendably) Thayerian approach to judicial review yields the Supreme Court's decision in Citizens United; he disagrees.  And, I'm not convinced that his proposed method yields the result that he thinks it should yield in the context of the same-sex-unions controversy.  In any event, read the book (and the review!).

Pope Benedict XVI on religious communities' freedom and "equality legislation"

Here are some interesting and timely remarks, shared by the Pope with the Bishops of England and Wales:

Your country is well known for its firm commitment to equality of opportunity for all members of society. Yet as you have rightly pointed out, the effect of some of the legislation designed to achieve this goal has been to impose unjust limitations on the freedom of religious communities to act in accordance with their beliefs. In some respects it actually violates the natural law upon which the equality of all human beings is grounded and by which it is guaranteed. I urge you as pastors to ensure that the church's moral teaching be always presented in its entirety and convincingly defended. Fidelity to the Gospel in no way restricts the freedom of others – on the contrary, it serves their freedom by offering them the truth. Continue to insist upon your right to participate in national debate through respectful dialogue with other elements in society. In doing so, you are not only maintaining long-standing British traditions of freedom of expression and honest exchange of opinion, but you are actually giving voice to the convictions of many people who lack the means to express them: when so many of the population claim to be Christian, how could anyone dispute the Gospel's right to be heard? . . .

Read the whole thing.  Comments are open.

An interesting new institutional-First-Amendment case

Here is the Ninth Circuit's decision in McDermott v. Ampersand Publishing.  The district court had ruled that "a significant risk of First Amendment violation" would arise if a newspaper was forced by the NLRB to reinstate employees that the newspaper had fired for certain union-related activities.  The Ninth Circuit agreed.  The court observed:

It is clear that the First Amendment erects a barrier against government interference with a newspaper’s exercise of editorial control over its content. . . .

The union organizing campaign arose in the wake of an xtended dispute between the News-Press management and newsroom employees regarding allegedly biased reporting and newspaper content. . . .

No matter how laudable the goals of the fired reporters in promoting the Union to, as the ALJ put it, “restore journalistic integrity,” the risk that granting an injunction will infringe the News-Press’s right to publish what it pleases is inescapable. . . .

This decision would seem to have interesting implications for the debate about the applicability of non-discrimination law and other general employment regulations to religious institutions. 

More on the Church's teaching authority, Arbp. Chaput, and Catholic schools

I have been hunting fresh snow beneath the ridges and among the trees in Jackson Hole, and so am late in coming to the ongoing discussion about Arbp. Chaput, same-sex unions, and Catholic schools’ admissions policies. 

It seems to me, for what it’s worth, that there are (at least) two separate, but related questions being debated and discussed.  The first is whether or not the Church has the authority -- given by Christ to Peter, the Apostles, and their successors -- to teach regarding faith and morals.  This is the question that Michael P. engaged, I think, when he asked:

The teachings of the magisterium, yes.  But the teachings of Jesus Christ?  I didn't realize that Jesus had anything to say about same-sex unions.  What Gospel passages am I overlooking?

My understanding is that, for Catholics, the content of the “teachings of Jesus Christ” – that is, the content of the revealed Word of God – is not exhausted by the reported sayings of Jesus that appear in the Gospels.  We have just as much reason, it seems to me, to believe that Jesus gave the Church teaching authority with respect to faith and morals as we do to believe that he in fact said what the Gospels report that he said.  (Michael’s view, I understand, is different.)

The second question is whether, all things considered, Arbp. Chaput’s decision is wise, prudent, just, and faithful.  For me, this question is not answered by asking whether the Archbishop would also exclude from Catholic schools the children of parents who practice contraception, who lie-cheat-and-steal, or do anything else immoral in their private lives.  No one thinks that Catholic schools should be open only to children whose parents lead sinless lives (thank God!).  But, would a Catholic school act wrongly if it were to exclude the children of parents who were publicly and notoriously involved in gravely wrong activities or campaigns?  Not necessarily (in my view).  So, this particular question about Arbp. Chaput's decision is, it seems to me, one of those “all things considered” kinds of questions.  I would think that a pastor and bishop may (and should) consider, among other things, the extent to which the enrollment and involvement of people (children and parents) in Catholic schools could undermine the schools' moral-formation efforts.  Is this such a case?  I'm not sure. 

Now, for Michael, the Archbishop’s decision is misguided because, at the end of the day, the Archbishop is wrong about the morality of same-sex unions and sexual activity -- the Church's teaching on these matters is false and contributes to injustice, in his view.  I agree with Michael that it would be strange to exclude the children of parents for doing or supporting X if X were morally unobjectionable.  But if what the parents are doing were morally objectionable, and it would create, in the Archbishop’s best judgment, a scandal – it would send the wrong message -- to enroll the children in Catholic schools, then I see no principled reason why the Archbishop could not, as part of his vocation and obligation, take these facts into account when deciding whether or not to admit those parents’ children to a Catholic school.

I would welcome others' reactions to this last sentence.  Comments (civil, germane, and charitable ones, that is) are welcome.

Monday, March 8, 2010

Asylum for Home-Schoolers

Here's a more recent news story about a matter that came up before here at MOJ:

On a quiet street in this little town in the foothills of the Smoky Mountains lives a family of refugees who were granted asylum in the United States because they feared persecution in their home country.

The reason for that fear has rarely, if ever, been the basis of an asylum case. The parents, Uwe and Hannelore Romeike, want to home-school their five children, ranging in age from 2 to 12, a practice illegal in their native land, Germany. . . .

“We’re all surprised [by the judge's decision granting asylum] because we consider the German educational system as very excellent,” said Lutz Hermann Görgens, the German consul general in Atlanta. He defended Germany’s policy on the grounds of fostering the ability “to peacefully interact with different values and different religions.” . . .

"Gay Catholic Ex-Stripper Awaits Birth of Twins Carried By Husband's Sister"

Wow.  What a headline.

Saturday, March 6, 2010

How Many Chess Players Does the Pope Have?

Story here:

To the tune of "Eddie the Eagle" and the Jamaican bobsled team comes this story of Don Valerio Piro, representing the Vatican in the upcoming European chess championship.

Thanks to Mark Kende for the link!

Well done, Aidan O'Neill!

MOJ-friend Aidan O'Neill manages deftly to use a comment on a case involving traffic laws in Scotland as an occasion to reflect interestingly on More, Aquinas, Plato, and Aristotle.  Nice!

Church-State Separation in Mexico

A fascinating piece by the Becket Fund's Luke Goodrich in the Wall Street Journal:

. . . Last week, Mexico's lower house of Congress began the process of amending the Mexican Constitution to formally declare the country to be "laica"—meaning "lay" or "secular." Supporters say the amendment merely codifies Mexico's commitment to the separation of church and state. But the term "laica," like the term "separation of church and state," means different things to different people. In fact, Mexico has been fighting over the meaning of church–state separation for over a century, with pro-church factions seeking greater political control for the Catholic Church, anti-clerical factions seeking to suppress the church, and few factions willing to agree on government neutrality towards religion. The key question is: What version of the separation of church and state will this amendment embody?

Unfortunately, the context surrounding the amendment suggests that it might be a step backwards for religious liberty and true separation of church and state. . . .

(P.S.:  If you care about dignity-grounded religious liberty for all -- and you should -- then you should be giving money to the Becket Fund.  Here's the link.)