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.

Saturday, March 6, 2010

Bart Stupak is not wrong

In response to Rob's recent post, I would echo what one of the commenters observed, namely, that the health-insurance-funding measure(s) currently under consideration fund abortion not only through the subsidization of insurance policies that "happen to cover abortion", but also through direct funding of "community health centers" (e.g., Planned Parenthood clinics) that provide abortions.  This funding comes with no anti-abortion restrictions.  In addition, the last I heard the current proposals include direct funding for abortions in Indian Country.  (If this is no longer on the table, I'd welcome correction).

Charmaine Yoest writes, in a recent WSJ op-ed, that:

The president's latest proposal mirrors legislation that has passed the Senate, which doesn't include a Hyde Amendment, and would inevitably establish abortion as a fundamental health-care service for the following reasons:

• It would change existing law by allowing federally subsidized health-care plans to pay for abortions and could require private health-insurance plans to cover abortion.

• It would impose a first-ever abortion tax—a separate premium payment that will be used to pay for elective abortions—on enrollees in insurance plans that covers abortions through newly created government health-care exchanges.

• And it would fail to protect the rights of health-care providers to refuse to participate in abortions.

The president's plan goes further than the Senate bill on abortion by calling for spending $11 billion over five years on "community health centers," which include Planned Parenthood clinics that provide abortions.

It seems to me that the President's pro-life supporters -- who also support some kind of overall of the health-insurance-funding system -- should be asking themselves, and him:  "Why is he so insistent on abortion-funding when, if he were willing to just go along with Stupak and the Bishops, he could -- his party enjoys a huge majority, after all -- sweeping health-insurance reform?"  Is it so important to deny those pesky pro-lifers a "victory"?

Oman on Reynolds, polygamy, and imperialism

Check out Nate Oman's very interesting post (and paper), at Concurring Opinions, on the Court's landmark Reynolds opinion.  Here's the paper abstract:

In 1879, the U.S. Supreme Court construed the Free Exercise Clause for the first time, holding in Reynolds v. United States that Congress could punish Mormon polygamy. Historians have interpreted Reynolds and the massive wave of anti-polygamy legislation and litigation that it midwifed as an extension of Reconstruction into the American West. This Article offers a new historical interpretation, one that places the birth of Free Exercise jurisprudence in Reynolds within an international context of Great Power imperialism and American international expansion at the end of the nineteenth century. It does this by recovering the lost theory of religious freedom that the Mormons offered in Reynolds, a theory grounded in the natural law tradition. It then shows how the Court rejected this theory by using British imperial law to interpret the scope of the first amendment. Unraveling the work done by these international analogies reveals how the legal debates in Reynolds reached back to natural law theorists of the seventeenth-century such as Hugo Grotius and forward to fin de siècle imperialists such as Theodore Roosevelt. By analogizing the federal government to the British Raj, Reynolds provided a framework for national politicians in the 1880s to employ the supposedly discredited tactics of Reconstruction against the Mormons. Embedded in imperialist analogies, Reynolds and its progeny thus formed a prelude to the constitutional battles over American imperialism in the wake of the Spanish-American War. These constitutional debates reached their dénouement in The Insular Cases, where Reynolds and its progeny appeared not as Free Exercise cases but as precedents on the scope of American imperial power. This Article thus remaps key events in late nineteenth-century constitutional history, showing how the birth of Free Exercise jurisprudence in Reynolds must be understood as part of America’s engagement with Great Power imperialism and the ideologies that sustained it.

Wednesday, March 3, 2010

Happy Anniversary, Front Porch Republic

If you are not reading the "Front Porch Republic" blog (here), you should be.

Saturday, February 27, 2010

The Battle of Hastings

Here is Joe Carter, at First Things, writing about the upcoming Martinez case (in which Tom Berg and I filed an amicus brief), "The Battle of Hastings" for religious-liberty.  He quotes a passage from the lead brief in the case:

A “variety of viewpoints” is far more likely to be achieved when students are allowed to sort themselves out by interest and viewpoint—Republicans in one club, Democrats in another; Muslims in one organization, Lutherans in another. Without such sorting, all viewpoints are blurred. The Democratic Caucus becomes the Bipartisan Caucus; the Christian, Jewish, and Muslim clubs become the Ecumenical Society; and every other group organized around a belief becomes a Debate Club. Each group becomes no more than its own diverse forum—writ small. The all-comers rule thus defeats the very purpose of recognizing any group as a group in the first place. Preventing students from organizing around shared beliefs does not foster a robust or diverse exchange of views.

Exactly.  Genuine "diversity" in a conversation is promoted if the participants in that conversation do, and are permitted to, be distinctive. 

Friday, February 26, 2010

Tollefsen on double-effect and "enhanced interrogation"

Christopher Tollefsen discusses here the recent effort by Marc Thiessen to evaluate, in Catholic terms, the "enhanced interrogation" of those suspected of having knowledge of planned terrorist attacks.  Here is the concluding paragraph:

[T]he upshot of my discussion is this: if, as the double effect defense presupposes, waterboarding or some other interrogation technique is done in a way that is expected to cause harm to the suspect, then that harm is most likely intended as a means by the interrogator and double effect will not justify it. And if such techniques are performed with the intention to cause pain, but not either direct physical harm, or psychological disintegration, then they are likely to be ineffective. Either way, it is, in my view, a good thing that United State’s policy has moved (as it did in the second Bush term) beyond the grim, if understandable, policies of the first few years after 9/11.

Read the whole thing.  And, since Public Discourse does not have comments-boxes, this might be an appropriate post for which to open them here.  I am particularly interested not only in Tollefsen's conclusion regarding "enhanced interrogation", but also the "structure" of the double-effect reasoning that he employs.

Tuesday, February 23, 2010

Rep. Stupak to oppose Pres. Obama's recent health-insurance proposal

More here:

Stupak explained his decision as follows:

”I was pleased to see that President Obama’s health care proposal did not include several of the sweetheart deals provided to select states in the Senate bill. Unfortunately, the president's proposal encompasses the Senate language allowing public funding of abortion.

"The Senate language is a significant departure from current law and is unacceptable. While the president has laid out a health care proposal that brings us closer to resolving our differences, there is still work to be done before Congress can pass comprehensive health care reform.‬“

The public-funding-of-abortion issue is not, I gather, limited to the matter of whether or not people can purchase federally subsidized plans that cover abortion.  (For more on that issue, read this position paper, put out by the USCCB.)  The President's new proposal, I gather, also authorizes (a) direct funding of Community Health Centers (including ones operated by Planned Parenthood that perform abortions) and (b) direct federal funding of abortions on Indian Country.  This latter aspect of the proposal, it seems to me, is particularly regrettable, given the extent to which Native Americans in Indian Country have been so badly neglected, and in so many ways.

"Are There Harms of Home Schooling?"

Many of us have posted, over the years, on the issue of "home schooling."  (For example, here, here, and here).  In my view, Chris Tollefsen's essay at Public Discourse, "Are There Harms of Home Schooling?", is a must-read (I say this, for what it's worth, as someone who is both too lazy and too impatient to even consider home-schooling my own children.)

Here is a taste:

Children’s education is primarily about their fulfillment, but that fulfillment is and can only be rooted in an orientation towards a life of service to genuine human goods, including the goods of others and service to God. The particular form of life within which each child is called to perform these services is the child’s vocation; the task of education—its primary end—is to enable children to recognize, accept, and pursue that vocation.

Monday, February 22, 2010

Proselytism and Religious Freedom

This conference, at Georgetown's Berkley Center, should be excellent:

In the context of a globalizing world marked by the freer flow of people and ideas, proselytism has become increasingly controversial. On March 3, 2010, the Berkley Center will sponsor a day-long symposium on proselytism and religious freedom in the 21st century. Experts from a variety of scholarly and policy fields will investigate the theological, legal, and political implications of the missionary impulse.

8:30 am - 8:55 am: Light breakfast available

9:00 am: Welcome: Thomas Banchoff, Director, Berkley Center

9:05 am - 10:20 am: Proselytism as Religious Duty
Richard Land, Southern Baptist Convention
Imam Mohamed Magid, All Dulles Area Muslim Society Center
Randi Rashkover, George Mason University
Moderator: Timothy Samuel Shah, Boston University

10:20 - 10:30: Break

10:30 am - 12:00 pm: The Political Implications of Proselytism
Salam Al Marayati, Muslim Political Action Committee
Leah Daughtry , House of Lord Church, Washington, DC
Matthew Richards, Brigham Young University
Moderator: Eric Patterson, Berkley Center

12:00 pm - 12:30 pm: Buffet Lunch

12:45 pm - 1:45 pm: Keynote Debate: Proselytism Pros and Cons
Jose Casanova, Georgetown and the Berkley Center
Gerard V. Bradley, Notre Dame Law School
Moderator: Thomas Farr, Berkley Center

1:45 - 2:00: Break

2:00 pm - 3:15 pm: The Legal and Social Dimensions of Proselytism
Robert Woodberry, University of Texas
Roger Finke, Penn State
Angela Wu, The Becket Fund for Religious Liberty
Moderator: Allen Hertzke, University of Oklahoma

For some of my own thoughts on proselytism and religious freedom, please read this paper, "Changing Minds:  Proseyltism, Religious Freedom, and the First Amendment":

Proselytism is, as Paul Griffiths has observed, a topic enjoying renewed attention in recent years. What's more, the practice, aims, and effects of proselytism are increasingly framed not merely in terms of piety and zeal; they are seen as matters of geopolitical, cultural, and national-security significance as well. Indeed, it is fair to say that one of today's more pressing challenges is the conceptual and practical tangle of religious liberty, free expression, cultural integrity, and political stability. This essay is an effort to unravel that tangle by drawing on the religious-freedom-related work and teaching of the late Pope John Paul II and on a salient theme in the law interpreting the Free Speech Clause of the First Amendment.

Running through and shaping our First Amendment doctrines, precedents, and values is a solicitude for changing minds - our own, as well as others'. Put differently, the Amendment is understood as protecting and celebrating not just expression but persuasion - or, if you like, proselytism. There are, therefore, reasons grounded in our Constitution and traditions for regarding proselytism and its legal protection not as threats to the common good and the freedom of conscience, but instead as integral to the flourishing and good exercise of that freedom. This same solicitude for persuasion and freedom pervades the writing of Pope John Paul II, who regularly insisted that the Church's evangelical mission does not restrict freedom but rather promotes it. The Church proposes - thereby inviting the exercise of human freedom - she imposes nothing. The claim here, then, is that proposing, persuading, proselytizing, and evangelizing are at the heart of, and need not undermine, not only the freedoms protected by the Constitution, but also those that are inherent in our dignity as human persons.

Friday, February 19, 2010

Andrew Bessette, C.S.C., to be canonized

This is nice news for all of my friends in Holy Cross, the religious community honored with the care of the mission of the University of Notre Dame:

Known popularly as the "miracle man of Montreal," Brother André Bessette, C.S.C.-an unassuming porter who became legendary for his ministry to the sick and needy of Montreal-was formally recognized today by the Vatican as one of six candidates who will be canonized a saint later this year.

Notre Dame's Frs. Hesburgh, Jenkins, and Scully urge Democrats not to kill school choice

This letter is available at education-researcher Jay Greene's blog:

Dear Senator Durbin and Secretary Duncan,

Warmest greetings from the University of Notre Dame.  We hope this letter finds both of you well, and that the new year has been filled with grace and blessings for you and your families.

We write today because we are all deeply disappointed by the turn of events that has led to the imminent demise of the Washington DC Opportunity Scholarship Program (OSP), and we are gravely concerned about the effects that the unprecedented gestures that have jeopardized this program will have on some of the most at-risk children in our nation’s capital.   

For the past decade, the University of Notre Dame, through its Alliance for Catholic Education (ACE), has served as the nation’s largest provider of teachers and principals for inner-city Catholic schools.  Since 1993, we have prepared more than 1,000 teachers and hundreds of principals to work in some of the poorest Catholic schools in the nation.  That experience, along with the research that we have sponsored through our Center for Research on Educational Opportunity, leads us to an unqualified conclusion: the DC Opportunity Scholarship Program provides an educational lifeline to at-risk children, standing unequivocally as one of the greatest signs of hope for K-12 educational reform.  To allow its demise, to effectively force more than 1,700 poor children from what is probably the only good school they’ve ever attended, strikes us as an unconscionable affront to the ideal of equal opportunity for all.

Three decades of research tell us that Catholic schools are often the best providers of educational opportunity to poor and minority children.  Students who attend Catholic schools are 42 percent more likely to graduate from high school and are two and a half times more likely to graduate from college than their peers in public schools.  Recent scholarship on high school graduation rates in Milwaukee confirms that programs like the OSP can, over time, create remarkable opportunities for at-risk children.  And after only three years, the research commissioned by the Department of Education is clear and strong with regard to the success of the OSP, as you both well know.  This program empowers parents to become more involved in their children’s education.  Parents of OSP students argue that their children are doing better in school, and they report that these scholarships have given their families an opportunity to break the cycle of poverty.  If this program ends, these parents will be forced to send their children back to a school system that is ranked among the worst in the nation, into schools they fought desperately to leave just a few years ago. 

At Notre Dame, we have recently witnessed the painful but logical outcomes of your failure to save the OSP.  For the past three years, the University of Notre Dame has worked in close partnership with Holy Redeemer School, a preK-8 Catholic school community located just a few blocks from Senator Durbin’s office on the Hill.  In fact, Senator Durbin visited the school and expressed his deeply favorable impression.  We too have witnessed the transformative capacity of Holy Redeemer, a place where parents report feeling a sincere sense of ownership in their children’s education for the first time in their lives.  Indeed, over the past three years strong leadership, excellent academics, low teacher turnover, and committed parents have all contributed to truly outstanding gains in student achievement.  The children at Holy Redeemer were, unlike so many of their peers, on the path to college. 

So we were deeply saddened to learn that the impending termination of the OSP has put the school in an untenable situation, leading the pastor to conclude that the school must be closed.  Families are presently being notified that their children will have to find a new school next year.  The end of the OSP represents more than the demise of a relatively small federal program; it spells the end of more than a half-century of quality Catholic education for some of the most at-risk African American children in the District.  That this program is being allowed to end is both unnecessary and unjust.  

We—and many others in the Notre Dame community—are wholeheartedly committed to protecting the educational opportunity of these children.  We encourage you to reconsider protecting the OSP and the children it serves from this grave and historic injustice.  You are joined by Notre Dame’s Alliance for Catholic Education, by the faculty and students on Notre Dame’s campus, by tens of thousands of Notre Dame alumni nationwide, and by millions of Catholic school families across the country in a steadfast commitment to ensure that these children continue to receive the educational opportunity that is their birthright.

Please know of our deepest appreciation for your consideration of this request.  We hope and pray that we can work together with you to save this program. 

 

Yours, in Notre Dame,

Rev. John I. Jenkins, CSC 

President, University of Notre Dame   

Rev. Theodore M. Hesburgh, CSC

President Emeritus, University of Notre Dame

Rev. Timothy R. Scully, CSC

Director, Institute for Educational Initiatives

University of Notre Dame