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.

Monday, September 29, 2008

USCCB on the "Freedom of Choice Act"

This letter, from Cardinal Rigali, on behalf of the USCCB, to members of Congress, regarding the "Freedom of Choice Act", is a must-read.  (The letter is not, to be clear, a brief for any particular presidential candidate.)  As he puts it, "we can't reduce abortions by promoting abortion."

The Act would, as I've mentioned many times, do much more than "codify Roe" (though that would be bad enough); according to some estimates, the Act's passage could increase the number of abortions by 125,000 per year.

Sen. Obama, of course, strongly supports the FOCA.  That said, I assume that "Democrats for Life" has publicly criticized the FOCA, but I have not been able to find a link.  If someone else has one, I will add it.

Saturday, September 27, 2008

Benedict on Catholic schools

Here's the Pope, on my favorite topic:

Catholic schools are a concrete manifestation of the right to freedom of education, says Benedict XVI.

The Pope expressed this conviction today during an address in the apostolic palace at Castel Gandolfo to representatives of Italian Catholic educational centers, who are taking part in a meeting organized by the Italian episcopal conference's Center of Studies for Catholic Schools.

"The Catholic school is an expression of the right of all citizens to freedom of education, and the corresponding duty of solidarity in the building of civil society," said the Pope, quoting a document of the Italian episcopate.

"To be chosen and appreciated, it is necessary that the Catholic school be recognized for its pedagogical purpose; it is necessary to have a full awareness not only of its ecclesial identity and cultural endeavor, but also of its civil significance," he explained. This "must not be considered as the defense of a particular interest, but as a precious contribution to the building of the common good of the whole society."

In this connection, the Pontiff called for equality between state and Catholic schools, "which will give parents the freedom to choose the school they desire."

"It has become evident that recourse to Catholic schools in some regions of Italy is growing, compared to the preceding decade, despite the fact that difficult and even critical situations persist," he noted.

The Catholic school has an important role, Benedict XVI concluded, as it is the instrument of the "Church's salvific mission" in which "the close union is achieved between the proclamation of the faith and the promotion of man."

Right on.  There's so much here:  Catholic schools are civil-society institutions and crucial vehicles for the Church's mission.  A nice reminder, as we're thinking about the "issues" that really matter, that knee-jerk opposition to school-choice programs is not very, well, Catholic.

"Turning the First Amendment on its head"

An excellent primer / post, by Fr. Richard Neuhaus, on religious freedom and the First Amendment:

Fr. John Courtney Murray, author of We Hold These Truths and a champion of religious freedom at the Second Vatican Council, observed that, while in theory politics should be unified by revealed truth, “it seems that pluralism is written into the script of history.” I would go further and suggest that it is God who has done the writing.

Pluralism is our continuing condition and our moral imperative until the End Time, when, as Christians believe, our disagreements will be resolved in the coming of the kingdom. The protection against raw majoritarianism depends upon this constitutional order. But this constitutional order depends, in turn, upon the continuing ratification of the majority who are “we the people.” Among the truths these people hold is the truth that it is necessary to protect those who do not hold those truths.

It is a remarkable circumstance, this American circumstance. It is also fragile. We may wish that Lincoln was wrong when he observed that “In this age, and this country, public sentiment is everything.” But he was right, and in the conflict over slavery he was to see public sentiment, both among the abolitionists and the slave owners, turn against the constitutional order and nearly bring it to irretrievable ruin. We are dangerously deceived if we think that Lincoln’s observation about our radical dependence upon public sentiment is less true today.

The question of religious freedom, then, is not—at least not the first instance—about church-state relations. As a matter of historical fact, very few of the controverted questions coming before the courts that are described in terms of church-state relations have to do with the relationship between government and churches. The question is the access, indeed the full and unencumbered participation, of men and women, of citizens, who bring their opinions, sentiments, convictions, prejudices, visions, and communal traditions of moral discernment to bear on our public deliberation of how we ought to order our life together in this experiment that aspires toward representative democracy. It is, of course, an aspiration always imperfectly realized. . . .

Read the whole thing . . . .

Friday, September 26, 2008

Abortion rates lowest in 34 years

According to the Guttmacher Institute, "the overall U.S. abortion rate is at its lowest level since 1974."  (Of course, this report cannot be right, because we know that, during the last eight years, the poor have been neglected by an administration that is hostile to the social-welfare programs that reduce the need for abortions and that has instead tried to distract and deceive pro-life voters with symbolic anti-abortion legislation and hype about Roe v. Wade.  Still, if it were true, it would be good news.)

The bishops, abortion, and the Democrats: a response to Steve

Steve asks, "is it the Bishops’ position that the Constitution should be . . . amended . . . to embrace a constitutional right of the unborn not to be killed?"  It is, in fact, the position of the American bishops (and not merely the position of a few renegade conservatives) that a pro-life strategy should include "passage of a constitutional amendment that will protect unborn children's right to life to the maximum degree possible".  More here.  (This is, in my view, the correct position, as opposed to the position that the Faith dictates what the Constitution's content in fact now is.) 

He also asks, "[t]o what extent is the question of whether laws should be passed against abortion a prudential question?"  My understanding is that it is the bishops' (and the recent Popes') position that the basic question whether unborn children should be protected by law is not a "prudential" one.  See, e.g., EV par. 57 ("Nothing and no one can in any way permit the killing of an innocent human being, whether a fetus or an embryo"; par. 71 ("While public authority can sometimes choose not to put a stop to something which -- were it prohibited -- would cause more serious harm, it can never presume to legitimize as a right of individuals . . . an offence against other persons caused by the disregard of so fundamental a right as the right to life.")

Steve then suggests that there is a "pattern of specific criticism against Catholic Democratic politicians." In fact, Archbishop Egan (Rudy Giuliani's bishop) criticized the latter's pro-abortion-rights position.  With respect to the abortion issue, I would think the reason that Democratic politicians are coming in for more criticism than Republican ones is that there are relatively few prominent Catholic Republicans who support abortion rights, while (pretty much) every prominent Catholic Democratic politician supports abortion rights.

Monday, September 22, 2008

Welcome (back) to John Breen

I'm delighted to announce that John Breen is (re)joining our merry band here at MOJ.  To celebrate, here's a little blast-from-the-past, John's article "Justice and the Jesuit Legal Education:  A Critique":

Jesuits need to engage in an honest assessment of the law schools that operate in their name. The heart of this assessment must include an honest conversation about how justice is and is not being taught. If such a conversation were to take place, it would result in something other than the self-laudatory statements of Jesuit law schools now generated for the consumption of alumni and prospective students; statements that celebrate a distinctiveness which does not exist.

There is, however, a distinctiveness that could be realized and worth celebrating. This distinctiveness consists of a law school culture and curriculum informed by serious engagement with the Catholic intellectual tradition, especially pertaining to law and justice. The Jesuit law school could introduce students to varieties of justice, all of which are grounded in human dignity and the common good of society. Without demanding adherence, whether intellectual, religious or otherwise, and without precluding other points of view, the Jesuit law school can offer a rich patrimony of thought in a non-coercive fashion.

If Jesuit law schools continue to fail to engage the tradition which inspired their creation, then they should cease to go by the name "Jesuit" or "Catholic." If, however, Jesuit law schools take up this tradition in earnest, then what are now mere slogans might accurately describe the kind of education they convey and the kind of graduates they hope to produce. If Jesuit law schools see an obligation to introduce students to the Catholic intellectual tradition, then they will offer law students something which secular schools do not. Then they can realistically hope to form "men and women for others." Then the life of these institutions, including Loyola, can again be Ad Majorum Dei Gloriam.

Sunday, September 21, 2008

"Institutional Pluralism"

It would be fair, and not uncharitable, to say that the plenary and presidential sessions at the AALS annual meeting are not always particularly interesting.  This year, though -- thanks, no doubt, in part to the work of Dean John Garvey -- things look to be much better.  The theme for the meeting is "Institutional Pluralism."  These three panels look quite good:

2:15 – 4:00 p.m.
Association of American Law Schools Presidential Programs
(5360) Presidential Program I - Institutional Pluralism

Speakers: Heather K. Gerken, Yale Law School
R. Kent Greenawalt, Columbia University
Alice Gresham, Howard University School of Law
Sanford Levinson, The University of Texas
Daniel D. Polsby, George Mason University School of Law
Kenneth W. Starr, Pepperdine University School of Law, Moderator

This program is designed to explore the virtues of institutional pluralism, the costs of pursuing that ideal, and the impediments to realizing it. The AALS is an association of self-governing communities whose members pursue a variety of intellectual and social commitments. There are state law schools, religiously affiliated law schools, law schools at historically black colleges and universities, and schools that focus on particular subject matters or points of view. The panelists, who come from a range of such schools, will begin a conversation about how institutional differences affect faculty and students, how they contribute to our intellectual life, and what effects they have on the other values our schools cultivate.

(5370) Presidential Program II - Religiously Affiliated Law Schools
Speakers: Michael Herz, Yeshiva University
Patricia A. O’Hara, Notre Dame Law School, Moderator
Mark A. Sargent, Villanova University School of Law
Bradley J.B. Toben, Baylor University School of Law
Kevin J. Worthen, Brigham Young University

Among the AALS’s 199 member and fee-paid schools there are 49 religiously affiliated law schools. They represent a spectrum of denominations and shades of belief: Catholics, Baptists, Jews, Methodists, Disciples of Christ, Latter Day Saints, and others. How, if at all, are these schools different from their secular counterparts? What effect might the religious commitments and beliefs of the sponsoring faiths have on subject matter, perspective, student life, academic freedom, admissions, hiring, and other issues? What do religiously affiliated law schools contribute to the legal academy and broader legal community?

(5380) Presidential Program III - Associational Pluralism
Speakers: Margaret Martin Barry, The Catholic University of America Columbus School of Law and Society of American Law Teachers
Michael Brintnall, Executive Director, American Political Science Association, Washington D.C.
Gail Heriot, University of San Diego School of Law and National Association of Scholars, Moderator
Goodwin Liu, University of California, Berkeley and American Constitution Society
John O. Mc Ginnis, Northwestern University, School of Law and The Federalist Society

At AALS Annual Meetings the intellectual life of the legal academy is lived in sections, defined by subject matter and interests. In recent years we have seen a flourishing culture of parallel organizations, often though not always characterized by particular points of view: the Federalist Society, the Society of American Law Teachers, the National Association of Scholars, the Law Professors Christian Fellowship, and the American Constitution Society are just a few examples. Does this phenomenon signal that the AALS is not representing these points of view? Should the AALS try to assimilate these groups, or make more of an effort to accommodate them (without digesting them) in its own framework, or live with the status quo?

Perhaps our own Mark Sargent will give us a sneak preview of his remarks?

"Speaking of Law and Religion"

Go here for all the info about the upcoming conference to celebrate the 25th anniversary of the Journal of Law and Religion.  Looks great.

The Pope and Politics

An interesting piece, by Sandro Magister:

After three years in the pontificate, and defying the expectations of most, the refined theologian has left his mark on international politics as well. In the West, with Islam, with China. . . .

Unlike his predecessor, Benedict XVI is believed to be an apolitical pope. But it's not true. Joseph Ratzinger simply engages in politics in original ways. These are sometimes imprudent, according to the canons of diplomatic realism, including those of the Vatican. And yet, after his three years in the pontificate, they have been shown to be much more productive than many foresaw, as proven in part by the unexpected "success" of the pope's recent trip to highly secularized France. . . .

. . . [T]he real motivation for Pope Ratzinger's fondness for the United States is that it is a country born and founded "on the self-evident truth that the Creator has endowed each human being with certain inalienable rights," foremost among which is liberty. To United States ambassador Mary Ann Glendon, who came to present her credentials to him, Benedict XVI said that he admires "the American people's historical appreciation of the role of religion in shaping public discourse," a role that elsewhere – read, Europe – "is contested in the name of a straitened understanding of political life." With the consequences that derive from this on the issues closest to the Church's heart, like "legal protection for God's gift of life from conception to natural death," marriage, the family. . . .

There's a lot more.

China frees (sort of) "underground" bishop

News from the Becket Fund:

The bishop of an unregistered Roman Catholic church in northern China has returned home, after being taken away by authorities on the last day of the Beijing Olympics, a U.S.-based monitoring group said Friday.

However, Bishop Jia Zhiguo remained under 24-hour police surveillance at his home at the Christ the King Cathedral in Wuqiu village of Hebei province, the Cardinal Kung Foundation said in a statement.

Jia, who is in his 70s, was barred from receiving visitors after police escorted him home Thursday and it was not known how he was treated during his detention, said the foundation, which has close contacts with China's unregistered church members.

Jia has been repeatedly detained by security forces in China, which broke ties with the Vatican in 1951 and demands that Catholics worship only in government-controlled churches. Such churches recognize the pope as a spiritual leader but appoint their own priests and bishops.

Millions remain loyal to the pope and worship in unregistered churches, but priests and members of their congregations are frequently detained and harassed. . . .