Sunday, November 29, 2009
Don't forget advent!
I confess: The day after Thanksgiving, I traditionally eat a lot, and go get a Christmas tree with the kids. MOJ-friend Jody Bottum reminds us, though . . . there's Advent.
Monday, November 23, 2009
Groan
In a piece reporting on Rep. Patrick Kennedy's claims regarding his bishop, the AFP states:
Communion is a church ritual that involves the sharing of bread and wine meant to represent the body and blood of Jesus Christ.
Argh. C'mon, folks. Is it that hard to "get religion"? (More here.)
Thursday, November 19, 2009
Geoffrey Stone on Church, State, Kennedy, and Stupak
Prof. Geoffrey Stone contends, here, that the role of the Catholic Church, and Catholics in securing passage of the Stupak Amendment, and in rejecting a same-sex-marriage law without adequate religious-liberty exemptions, is in worrisome tension with church-state separation and religious liberty. I disagree (and only in part because I do not agree that JFK's vision of the role of religion in America is the best one). Here is the main point:
Freedom of religion in our nation means, first and foremost, the right of individuals to live their lives in accord with their most cherished religious beliefs, and free of government interference. It is not for our government to tell Muslims they must drink alcohol or eat pork, it is not for our government to tell Jews they must consume shrimp or work on Saturday, and it is not for our government to tell Catholics they must have abortions or marry persons of the same-sex.
At the same time, though, the reciprocal of that freedom is an equally fundamental responsibility. This is the responsibility not to use the authority of the government to compel individuals to live their lives in accord with our "religious dictates" that they do not share. Muslims have the right not to consume pork, but they should not use the power of the government to forbid others to eat pork. Jews have the right not to work on Saturday, but they should not use the power of the government to prohibit others from working on Saturday. And Catholics have the right not to marry people of the same sex, but they should not use the power of the government to forbid others from marrying the person they love.
Most of this is not controversial: People should not be compelled to live their lives in accord with others' "religious dictates". (Indeed, they should not be compelled by government to live in accord with their own "religious dictates".) Prof. Stone's mistake, I think, is in suggesting that securing a legislative provision that prevents financial subsidization of abortion "use(s) the authority of government to compel individuals to live their lives in accord with" "religious dictates." First, it is an accessible, reasonable moral position -- not a "religious dictate" -- to hold that abortion violates basic commitments to human equality. Second, and in any event, the government's refusal to fund abortion does not compel people to do anything. (Now, if Prof. Stone wants to argue that the government's refusal to fund school vouchers for parents who object, on religious grounds, to the ideology conveyed in public schools . . . ).
The Washington Post on SSM and religious liberty in DC
A reasonable editorial, I thought:
YOU MIGHT not realize, given the fury between Catholic Charities and the D.C. Council, that the Catholic Church is not trying to prevent the legalization of same-sex marriage in the District. Rather, the battle is over the impact that the legislation could have on the vital services it provides.
Catholic Charities is concerned that the current draft would force it to choose between upholding its religious beliefs and complying with the District's human rights law in order to maintain city contracts. The clash raises tough questions. But they strike us as solvable, if council members shelve the self-righteousness and look for solutions. . . .
Wednesday, November 18, 2009
Catholic Legal Theory and "The Death of Big Law School"
Over at Prawfsblawg, I weighed in on an ongoing discussion about the implications for law schools and legal education of the crisis / meltdown / downturn / setback in the legal-services business. I wrote:
"Above the Law" has collected some posts dealing with the blog-circulating suggestion that "problems with the Biglaw business model will have major effects on the law school business model." I'm confident that this suggestion is correct. And, what was said at the "WSJ Law Blog" might also be correct, as a predictive matter : "Perhaps the focus will be more on teaching students on how to draft interrogatories than on reading John Rawls. If we’re reading Gerding correctly, law school may become less fun, but perhaps more useful." Again -- maybe so.
A friend passed this prediction along to me, noting that this change "has been a long time coming," and here's what I wrote back:
In my own view, for what it’s worth, it would be very sad if the lesson that law schools took away from all this is that they should become more narrowly technical and practitioner-preparatory in their approach. In my view, law school needs to be *more* interdisciplinary, and the study of law needs to be approached *more* like a humane discipline, than they currently are. The world does not need, really, blinkered-but-efficient-and-proficient technicians; it does need, though, lawyer-citizen-leaders who are well read, ethically sensitive, public minded, and theoretically sophisticated. There are huge problems with the profession, I think, but the answer to those problems is not, it seems to me, for law schools to resign themselves to the relatively unambitious task of providing fodder for the current (or post-crash) law-firm machine; instead, we need to produce people who have the ability and intellectual resources to transform the profession and help the profession to be what it should be.
This sounds, I admit, abstract and Ivory-Tower-ish (almost a caricature of out-of-touch tenured academics' self-important musings), even elitist. I am uncomfortable with that. To be clear, I think *practicing* law is (or, at least, should be) both "fun" and "useful" (it has certainly be fun for me!). The disdain for everyday law practice that one sometimes encounters in the more rarified precincts of the academy is, at best, off-putting. My sense, though -- what I was trying to express in my note to my friend -- is that the *practice* of law, properly and richly understood, is . . . more (deeper, bigger, harder) than I think people give it credit for. It is absolutely the role of good law schools to produce good lawyers; I'm just suggesting that the problems with the structure of the profession have not shown that the way to produce good lawyers is to shrink our understanding of what it means to be a good lawyer. The big-firm model of legal-services delivery seems messed up and dysfunctional, no doubt. I'm pretty sure, though, it's not because students have been reading too much Rawls. (Well, maybe it is. But it's not because they have been reading too much Jacques Maritain or Thomas Aquinas. =-) ).
What should we, who are engaged in the Catholic-law schools project think about all this?
Sunday, November 15, 2009
Vischer-fest at the Center for Ethics & Culture
Yesterday, I moderated a panel discussion on our colleague Rob's forthcoming book, "Conscience and the Common Good." (Pre-order it here!) The participants included MOJ's Patrick Brennan, as well as Michael Moreland and Nora O'Callaghan. It was a really nice event, featuring tough questions and thoughtful answers. I hope Rob and Patrick will share, here on MOJ, some of what went on during the discussion.
Here, just to refresh your recollection, is the book's animating idea:
Our society's longstanding commitment to the liberty of conscience has become strained by our increasingly muddled understanding of what conscience is and why we value it. Too often we equate conscience with individual autonomy, and so we reflexively favor the individual in any contest against group authority, losing sight of the fact that a vibrant liberty of conscience requires a vibrant marketplace of morally distinct groups. Defending individual autonomy is not the same as defending the liberty of conscience because, although conscience is inescapably personal, it is also inescapably relational. Conscience is formed, articulated, and lived out through relationships, and its viability depends on the law's willingness to protect the associations and venues through which individual consciences can flourish: these are the myriad institutions that make up the space between the person and the state. Conscience and the Common Good reframes the debate about conscience by bringing its relational dimension into focus.
A great Notre Dame moment
Certainly, there have been few such moments on the football field this season. But, on Friday morning, at the Center for Ethics & Culture's (wonderful) Fall Conference, "The Summons of Freedom," I attended a very interesting panel on Maritain, Murray, Pope Pius XII, and religious freedom. The papers presented were all very enlightening. During the Q & A, while we were talking and thinking about Murray, my esteemed colleague Bob Rodes shared an intervention. (Here is a paper I did, a few years ago, on Bob's church-state work.) Then, it hit me: "We are talking about Murray, with a legal scholar whom Murray cited in 'We Hold These Truths'!"
Very cool.
Thursday, November 12, 2009
Catholic Bishops + Stupak Amendment = Iran?
Ah, the legal academy (HT: America):
[Michael Sean Winters writes:] Timothy Stoltzfust Jost, a professor of law at Washington and Lee University, thinks issues of Church and State are involved. He writes: "For Congress to have to look to a particular church for permission to move legislation is frightening. Religious persecution is a very real issue for many throughout the world today. We have been very fortunate in the United States to have been largely spared its ravages. But the only guarantee that we will continue to enjoy religious freedom is the jealous protection of the separation principle. If any religion dominates politics, it has the power to dominate other religions as well. Let us not become another Iran." This is pure baloney. No one looked to the Church for "permission" and America is scarcely in danger of becoming another Iran.
This kind of thing has been rampant throughout the blogosphere -- and even, as Rob reported, in some quarters of Congress.. It would be silly were it not so frightening and dangerous. A great many educated, respectable, influential, engaged, and riled-up people appear to believe that there was something illegitimate, even "theocratic", about the leaders and members of the world's oldest non-state institution making their case for (i) health-insurance legislation that (ii) does not fund the destruction of unborn human life. (There is nothing similarly illegitimate, though, about, say, the AARP's -- or, for that matter, Planned Parenthood's -- lobbying.) Religious liberty is vulnerable in such a climate, I fear.
An update: The Washington Post characterizes as an "ultimatum" the Church's expressed concern that the lack of a meaningful religious-liberty exemption to the same-sex marriage law working it's way to passage in DC will require the Church to get out of much of its social-service work. According to some DC legislators, it is "childish" for the Church to think that it should not have to surrender her right to hire-for-mission in order to help the City help the poor.
Wednesday, November 11, 2009
A new paper of possible interest
My friend and former student, Stephen Wallace, has posted on SSRN his paper, "Why Third Party Standing in Abortion Cases Deserves a Closer Look." Here is the abstract:
Third-party standing, the out of the ordinary ability for a litigant to bring not only his own claims to court but those of an absent party as well, is a powerful legal device that demands close attention by judges applying difficult, fact-based tests. Too often since the split decision in Singleton v. Wulff (1976), federal courts have not engaged in a thorough analysis when abortion providers have sought third-party status to present the interests of current or prospective clients. In those cases, the third-party claims were often decisive to the final outcome, making the initial third-party standing determination one of great importance.
This Note argues that the United States Supreme Court decision in Kowalski v. Tesmer in 2004 is not only the new governing law on this question, but is also better in tune with the purposes of standing law than the Singleton plurality opinion. It further argues that most abortion providers’ third-party standing claims will not pass the much more rigorous Kowalski test, and includes some practical suggestions for litigants on using the new standard.
All you Article III jocks out there . . . dig in!
Response to Michael on Catholicism and capital punishment
Just a quick note in response to Michael's mention of the Brugger book: My own view is that the position at which the late Pope John Paul II seemed to have arrived (at least in print) was not quite satisfactory. (How's that for chutzpah?). A "Catholic" position on capital punishment, it seems to me, needs to candidly engage the fact that killing by the public authority, as justified retributive punishment, was long thought justified, and not merely in cases where it was / is analogous to self-defense or killing-in-just-wars. Of course, this disagreement is hardly one that matters, since (i) I oppose capital punishment and (ii) I am not as smart as John Finnis, Christian Brugger, and Michael Perry.
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