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, December 18, 2006

Dennett, again

By Rick Garnett

Professor Daniel Dennett is, of course, a much smarter person and much more prominent scholar than I am or ever will be.  That said, I regard it as a pretty reliable indicator of moral unseriousness for a person to believe, as Dennett apparently does, that:

In the United States, the problem [i.e., theocracy] is no less real for being less dramatic: There are many deeply religious people who believe that they may democratically impose more and more of their creed on the nation, by simply exercising their First Amendment rights to free expression and creating thereby a climate of opinion that renders opposition by secularists politically ineffective.  This is a grave danger to democracy, more subversive, in fact, than anything Al Qaeda threatens.

Come again?  It is a "grave danger to democracy" for religious believers to "exercis[e] their First Amendment rights to free expression"?  It strikes me that the more "grave danger to democracy" would be if brilliant philosophers came to believe that, in order to make "secularists" more "politically []effective," the state ought to -- in the interest of protecting democracy, of course -- curtail the "rights to free expression" of religious believers.

There's a lot of other strange stuff in this essay.  Check it out.

Also, this is Rosie O'Donnell, on "The View", reminding us that "radical Christianity is just as threatening as radical Islam."  Goodness.

Friday, December 15, 2006

Sisk on Judicial Decisionmaking

By Rick Garnett

Over at the Empirical Legal Studies blog, our own Greg Sisk is posting about "neglected variables in empirical research on judicial decisionmaking."  (See also here and here.)  Of particular interest will be Greg's discussion of "religion":

At this point, I turn more directly to shameless self-promotion, as religion as a variable has been and continues to be the focus of my current empirical interest in judicial decisionmaking. . . .

In my collaborative work with Michael Heise and Andrew Morriss, we focused upon various religion-oriented variables in studying religious liberty decisions.  Gregory C. Sisk, Michael Heise & Andrew P. Morriss, Searching for the Soul of Judicial Decisionmaking:  An Empirical Study of Religious Freedom Decisions, 65 Ohio St. L.J. 491 (2004).  During the past half century, constitutional theories of religious freedom have been in a state of great controversy, perpetual transformation, and consequent uncertainty.  Given the vitality of religious faith for most Americans and the vigor of the enduring debate on the proper role of religious belief and practice in public society, a searching exploration of the influences upon judges in making decisions that uphold or reject claims implicating religious freedom is long overdue.  Many thoughtful contributions have been to the debate about whether judges should allow their religious beliefs to surface in the exercise of their judicial role.  Yet much less has been written about whether judges’ religious convictions do affect judicial decrees, that is, whether religious beliefs influence court decisions, consciously or unconsciously.

In our comprehensive empirical study of federal circuit and district judges deciding religious freedom cases, the vitality of religious variables to a more complete understanding of judicial decisionmaking became abundantly clear.  Indeed, the single most prominent, salient, and consistent influence on judicial decisionmaking was religion—religion in terms of affiliation of the claimant, the background of the judge, and the demographics of the community, independent of other background and political variables commonly used in empirical tests of judicial behavior.  Thus, in light of the findings of this study, when searching for the soul of judicial decisionmaking in the legal or political sense, we concluded that researchers should not neglect the presence and influence upon the judicial process of matters that affect the soul in the theological sense.

Of course, if religious variables were to have an influence, one would expect it to emerge in cases that involve religious liberty.  Is there justification for studying religious variables in the context of other research questions?  Only time – and experimentation – will tell.

Wednesday, December 13, 2006

Judge bars naming adulterer

By Rick Garnett

This story, from the Telegraph, seems quite revealing: 

A cuckolded husband was banned by the High Court yesterday from naming a married public figure who conducted an affair with his wife.

In what is believed to be the first case of its kind, Mr Justice Eady granted the adulterer — who may be identified only as CC — an injunction against the betrayed husband, referred to as AB.

The judge suggested that even an adulterer might have a legitimate expectation of privacy. AB had wanted to expose CC in the media. . . .

In his ruling, the judge said: "There is a powerful argument that the conduct of an intimate or sexual relationship is a matter in respect of which there is 'a reasonable expectation of privacy'."

Is the "expectation of privacy" that an adulterer has -- let's assume that, subjectively, he has one -- really one that the law should regard as "legitimate" or reasonable?  Is it an expectation that the law should -- as law does -- help to create and protect?

Tony Blair on integration and religion

By Rick Garnett

This is interesting:

Tony Blair formally declared Britain's multiculturalist experiment over today as he told immigrants they had "a duty" to integrate with the mainstream of society.

In a speech that overturned more than three decades of Labour support for the idea, he set out a series of requirements that were now expected from ethnic minority groups if they wished to call themselves British.

These included "equality of respect" - especially better treatment of women by Muslim men - allegiance to the rule of law and a command of English. If outsiders wishing to settle in Britain were not prepared to conform to the virtues of tolerance then they should stay away.

He added: "Conform to it; or don't come here. We don't want the hate-mongers, whatever their race, religion or creed.

"If you come here lawfully, we welcome you. If you are permitted to stay here permanently, you become an equal member of our community and become one of us.

"The right to be different. The duty to integrate. That is what being British means."

Does "being American" mean this, too?  What else, besides being "tolerant" and speaking English, is the Prime Minister demanding of those who would be British.  Or, more precisely, what does he think it means to be "tolerant"?

The Court's new Religion Clauses case

By Rick Garnett

Melissa Rogers (Wake Forest) has some thoughts about the Court's grant in the case Hein v. Freedom from Religion Foundation, which could be the Roberts Court's first foray into the Religion Clauses fever swamp.  In her view, a decision by the Court to limit "taxpayer standing" in Establishment Clause cases would reflect a decision not to enforce the Clause, and "[i]f we fail to enforce the Establishment Clause adequately, these values will suffer and the quality of religious liberty will be diminished."  I am inclined to disagree.  That is, while I agree entirely that the Establishment Clause, properly understood, serves religious freedom in important ways, it is not obvious to me why enforcement the Establishment Clause -- unlike, say, the Free Speech Clause, or the Commerce Clause -- requires the Court to confer standing on claimants who have not suffered the injury-in-fact that we require in every other federal context.

Tuesday, December 12, 2006

Colbert on the Ecu-Menace

By Rick Garnett

Shifting gears slightly from "Evangelicals and Catholics Together":  Check out Steve Colbert riffing on the Nicene Creed (at least, I *think* it's the Nicene Creed) in this bit about the Pope's recent visit to Turkey. 

The Human Person, the Heart of Peace

By Rick Garnett

Here (thanks to Amy Welborn) is the text of the Pope's message for the celebration of the World Day of Peace.  This is from the conclusion, and connects nicely with some MOJ-explored themes:

16. Finally, I wish to make an urgent appeal to the People of God: let every Christian be committed to tireless peace-making and strenuous defence of the dignity of the human person and his inalienable rights.

With gratitude to the Lord for having called him to belong to his Church, which is “the sign and safeguard of the transcendental dimension of the human person”(9) in the world, the Christian will tirelessly implore from God the fundamental good of peace, which is of such primary importance in the life of each person. Moreover, he will be proud to serve the cause of peace with generous devotion, offering help to his brothers and sisters, especially those who, in addition to suffering poverty and need, are also deprived of this precious good. Jesus has revealed to us that “God is love” (1 Jn 4:8) and that the highest vocation of every person is love. In Christ we can find the ultimate reason for becoming staunch champions of human dignity and courageous builders of peace.

17. Let every believer, then, unfailingly contribute to the advancement of a true integral humanism in accordance with the teachings of the Encyclical Letters Populorum Progressio and Sollicitudo Rei Socialis, whose respective fortieth and twentieth anniversaries we prepare to celebrate this year. To the Queen of Peace, the Mother of Jesus Christ “our peace” (Eph 2:14), I entrust my urgent prayer for all humanity at the beginning of the year 2007, to which we look with hearts full of hope, notwithstanding the dangers and difficulties that surround us. May Mary show us, in her Son, the Way of peace, and enlighten our vision, so that we can recognize Christ's face in the face of every human person, the heart of peace!

Monday, December 11, 2006

Iowa and Separation: Response to Eduardo

By Rick Garnett

I agree completely with Eduardo (posting at the Commonweal blog) that "the dubious origins of the discourse of 'separation' do[] not mean that, as a substantive matter, the consequences of separation of Church and State" -- properly understood -- "are not as good for Church as they are for the State."  And, I agree entirely with him that we would do well to think long and hard before endorsing a program that involved "straight-up state funding for a program in which Catholic inmates can be browbeaten by evangelicals in order to receive more comfortable cells."  As I suggested in my earlier post, though, I remain skeptical that this statement fairly describes the operation and aims of the program.

Reading the comments to Eduardo's post over at Commonweal, I am struck by the antipathy that many smart, progressive Catholics seem to have toward the "Evangelicals and Catholics Together" movement.  My own experiences with thoughtful Evangelicals -- and, to be clear, I have had lots of experience with hard-core anti-Catholic Protestants -- makes it hard for me to join some of those commenters in dismissing the movement as merely involving a convenient political alliance relating to abortion and culture-wars issues. Of course it is true that Catholics and Evangelicals differ, on important things and in important ways -- even those of us born after the Council know this.  Still, I think it is a mistake to turn too quickly, perhaps because one just doesn't like Fr. Neuhaus's politics, against a movement that, perhaps, holds real ecumenical and evangelical promise.

Faith in Iowa Prisons

By Rick Garnett

Michael P. asks "how should we think about" the program discussed in this recent New York Times article.  For what it's worth, I think we should approach the article's account with some care, even skepticism. 

For starters, the title -- "Religion for a Captive Audience" -- seems a bit misleading, since no inmates are required to participate in the "Inner Change" program or others like it.  Second, it strikes me as relevant that the author, Diana B. Henriques, was also a lead contributor to the Times' recent four-part series on religious exemptions.  That series, I think, was seriously flawed, and missed the boat in a number of respects.

Finally, it is true -- as the story mentions -- that the federal-court decision invalidating the Iowa program cited some allegedly anti-Catholic incidents in support of the conclusion that the program violates the First Amendment.  As I argued in this amicus brief, though, the district-court judge went well beyond the facts, and his own expertise, in characterizing the theological content of the program and pronouncing on the views of Evangelicals and Catholics.  For more detail, check out the brief.

This is not to say that, under current constitutional doctrine, all things considered, the court erred in invalidating the program.  But, in my view -- and I'm certainly not one to downplay the reality of anti-Catholicism -- the anti-Catholicism theme in the opinion, and in the news story, is a red herring.

Friday, December 8, 2006

"Making God Known, Loved, and Served"

By Rick Garnett

For the past year or so, I've been working with the Notre Dame Task Force on Catholic Education, studying and thinking of ways to respond to the challenges facing Catholic schools.  Today, Fr. John Jenkins, C.S.C., released the Task Force's final report, "Making God Known, Loved, and Served:  The Future of Catholic Primary and Secondary Schools in the United States."   I'm biased, of course, but I think the report is excellent:  inspiring, challenging, and -- potentially -- valuable. 

I was especially excited about the section entitled "School Choice:  A Matter of Justice":

The Catholic Bishops in the

United States

have, time and again, demonstrated courage and leadership by challenging Catholics and all people of good will to engage and embrace the Church’s rich social-justice teachings.  On a variety of issues and in many different contexts – the sanctity of unborn life, the death penalty, war and peace, economic justice, and so on – the Bishops have exercised, prudently but forcefully, the teaching authority of their offices. In this way, they have served as faithful shepherds and pastors.

We believe it is crucial that the Bishops in the United States teach clearly and with one voice that parents have a right to send their children to Catholic schools, that these schools contribute to a healthy civil society and provide special benefits to the poor and disadvantaged, and that it is unjust not to include students who choose to attend Catholic schools in the allocation of public benefits. School choice is not just a policy option or a political question; it is an issue of religious freedom and social justice.

In recent years, the arguments in the public square for school choice and equal treatment of religious schools have moved from libertarian arguments about competition to moral arguments about equality, opportunity, and religious liberty. At the same time, support for school choice has expanded beyond a politically conservative base and now enjoys increasing bipartisan support, particularly among the poor and ethnic minorities. School choice and Catholic schools treat the poor as citizens of equal dignity. They promote the independence upon which constitutional government depends. And, they empower parents to pass on their values to their children.

These developments resonate strongly with principles of social justice, with principles of subsidiarity and solidarity, and with the preferential option for the poor. Public funds should be disbursed in such a way that parents are truly free to exercise their right to educate their children in Catholic schools, without incurring hardships or double-taxation.  Accordingly, in the Second Vatican Council’s Declaration on Religious Freedom, the Church proclaims that “Government . . . must acknowledge the right of parents to make a genuinely free choice of schools and of other means of education, and the use of this freedom of choice is not to be made a reason for imposing unjust burdens on parents, whether directly or indirectly.”

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