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.

Wednesday, November 1, 2006

Trick or Treat

By Rick Garnett

Here's an interesting Beliefnet piece about the Catholic origins of Halloween.  I was particularly intrigued to learn about the origins of "Trick or Treat":

"Treat or treat" is perhaps the oddest and most American addition to Halloween and is the unwilling contribution of English Catholics.

During the penal period of the 1500s to the 1700s in England, Catholics had no legal rights. They could not hold office and were subject to fines, jail and heavy taxes. It was a capital offense to say Mass, and hundreds of priests were martyred.

Occasionally, English Catholics resisted, sometimes foolishly. One of the most foolish acts of resistance was a plot to blow up the Protestant King James I and his Parliament with gunpowder. This was supposed to trigger a Catholic uprising against the oppressors. The ill-conceived Gunpowder Plot was foiled on November 5, 1605, when the man guarding the gunpowder, a reckless convert named Guy Fawkes, was captured and arrested. He was hanged; the plot fizzled.

November 5, Guy Fawkes Day, became a great celebration in England, and so it remains. During the penal periods, bands of revelers would put on masks and visit local Catholics in the dead of night, demanding beer and cakes for their celebration: trick or treat!

Guy Fawkes Day arrived in the American colonies with the first English settlers. But by the time of the American Revolution, old King James and Guy Fawkes had pretty much been forgotten. Trick or treat, though, was too much fun to give up, so eventually it moved to October 31, the day of the Irish-French masquerade. And in America, trick or treat wasn’t limited to Catholics.

I'm a bit of a Guy Fawkes Day junkie, probably because of this guy.

All Saints Day

By Rick Garnett

Happy All Saints Day!  Here's the Pope:

The indissoluble link between the Church and sainthood was remembered today by Benedict XVI in a quotation by Alessandro Manzoni. "Today," said the pope in the words of the author of the novel 'The Betrothed', "the Church is celebrating its dignity as mother of saints, the image of the supernal city," and added: "it manifests its beauty as the immaculate spouse of Christ, source and model of every saintliness." To explain the meaning underlying All Saints Day, celebrated this morning in the Vatican with a solemn mass, the pope chose to quote St Bernard. "Our saints," he said, using the words of the saint, "do not need our honours and nothing is granted them by our worship. I must confess that, when I think of the saints, I burn with grand desires." For the pope, this means looking "at the luminous example of the saints," to "reawaken in ourselves the grand desire for sainthood." "We are all called upon to follow a life as saints," said Pope Ratzinger, stressing that "to be a saint does not necessarily mean carrying out extraordinary actions and deeds, nor having some type of special charisma." But, he went on, "it is only necessary to serve Jesus, to listen to him and follow him without losing hear when faced with difficulties." .

Monday, October 30, 2006

Wills on Bush and religion

By Rick Garnett

In the New York Review of Book, Garry Wills has a long essay criticizing the Bush Administration for what Wills regards as its excessive injection of religion into policymaking.  It's overheated and unfair, in my view (e.g., "[t]he labyrinthine infiltration of the agencies was invisible to Americans outside the culture of the religious right").  In the end, I do not think it is a stretch to say that, in Wills's view, any argument or position that is (a) held by the Bush Administration and some Christians (b) with which Wills disagrees is a "faith based" position.

The piece is basically a bill of particulars.  One charge, in the section called "faith-based justice," struck me as particularly unfounded:

Ashcroft's use of the Civil Rights Division for religious purposes was broader than his putting partial-birth abortion under its jurisdiction. Tom Hamburger and Peter Wallsten, two critics of Republican policies, write in One Party Country:

In 2002, the department established within its Civil Rights Division a separate "religious rights" unit that added a significant new constituency to a division that had long focused on racial injustice. When the Salvation Army— which had been receiving millions of dollars in federal funds—was accused in a private lawsuit of violating federal antidiscrimination laws by requiring employees to embrace Jesus Christ to keep their jobs, the Civil Rights Division for the first time took the side of the alleged discriminators.

Surely, in a government constrained by our First Amendment, and dedicated to honoring our longstanding commitment to religious freedom, it is entirely appropriate for the "Department of Justice" to include in the "constituency" of the Civil Rights Division those who care not only about racial injustice but also discrimination against religion?

Sunday, October 29, 2006

DOJ gives up on prison program

By Rick Garnett

Over at Balkinization, Marty Lederman writes:

DOJ Comes to Its Senses on Faith-Based Prison Program

Marty Lederman

Several months ago, I argued here that the Department of Justice's proposed "residential multi-faith restorative justice program" entitled Life Connections was "manifestly unconstitutional in several respects." I wondered how the Office of Legal Counsel could possibly have signed off on this program.

Well, it appears that someone -- probably in OLC -- has thankfully had some sober second thoughts. On Thursday, DOJ cancelled the program "in its entirety."

[NOTE: This blatantly unconstitutional federal program did have the virtue of raising one very interesting and important constitutional question: Whether the state may ever attempt to promote religious faith or transformation, even (or especially) as a means of advancing secular ends (e.g., rehabilitation, cessation of alcohol dependence, etc.) that the state suspects to be correlated with faith.

I discussed that question with Rick Garnett and Doug Laycock here -- with links to additional thoughts from Steve Shiffrin and Rob Vischer.]

Church Autonomy takes a bit hit

By Rick Garnett

In the U.K., anyway.  Professor Friedman reports:

Clergy Get Employment Protection In Britain

Britain's Employment Appeal Tribunal yesterday handed down a landmark case holding that clergy will be treated as employees of the church for purposes of bringing unfair dismissal cases. Reporting on the case, Personnel Today said that previously ministers were regarded British courts as appointed to a holy office, and not as employees. The decision in New Testament Church of God v. Stewart, (EAT, Oct. 27, 2006), relies on last year's House of Lords decision in Percy v Church of Scotland Board of National Mission, [2006] IRLR 195, in reaching its conclusion. (See prior posting.)

Brooks on Santorum

By Rick Garnett

It seems quite likely that Robert Casey -- a Catholic Democrat -- will defeat Rick Santorum -- a Catholic Republican -- in next week's Pennsylvania Senate election.  I realize that many of my friends and colleagues regard this as a good thing, particularly for the Democrats-for-Life cause.  But, as David Brooks's recent New York Times column suggests (no link available, due to the Times' silly "Times Select" feature), we should hope that, if he is defeated, Sen. Santorum and his service are remembered accurately, and not in the cartoonish way they is often portrayed:

Every poll suggests that Rick Santorum will lose his race to return to the U.S. Senate.  That's probably good news in Pennsylvania's bobo suburbs, where folks regard Santorum as an ideological misfit and a social blight. But it's certainly bad for poor people around the world.

For there has been at least one constant in Washington over the past 12 years: almost every time a serious piece of antipoverty legislation surfaces in Congress, Rick Santorum is there playing a leadership role.

In the mid-1990s, he was a floor manager for welfare reform, the most successful piece of domestic legislation of the past 10 years. He then helped found the Renewal Alliance to help charitable groups with funding and parents with flextime legislation.

More recently, he has pushed through a stream of legislation to help the underprivileged, often with Democratic partners. With Dick Durbin and Joe Biden, Santorum has sponsored a series of laws to fight global AIDS and offer third world debt relief. With Chuck Schumer and Harold Ford, he's pushed to offer savings accounts to children from low-income families. With John Kerry, he's
proposed homeownership tax credits. With Chris Dodd, he backed legislation authorizing $860 million for autism research. With Joe Lieberman he pushed legislation to reward savings by low-income families.

In addition, he's issued a torrent of proposals, many of which have become law: efforts to fight tuberculosis; to provide assistance to orphans and vulnerable children in developing countries; to provide housing for people with AIDS; to increase funding for Social Services Block Grants and organizations like Healthy Start and the Children's Aid Society; to finance community health
centers; to combat genocide in Sudan.

. . .  Like many people who admire his output, I disagree with Santorum on key matters like immigration, abortion, gay marriage. I'm often put off by his unnecessarily slashing style and his culture war rhetoric.

But government is ultimately not about the theater or the light shows of public controversy, it's about legislation and results. And the substance of Santorum's work is impressive. Bono, who has worked closely with him over the years, got it right: ''I would suggest that Rick Santorum has a kind of Tourette's disease; he will always say the most unpopular thing. But on our issues, he has been a defender of the most vulnerable.''

"The Truth About Conservative Christians"

By Rick Garnett

E.J. Dionne has this interesting review of a new book by Fr. Andrew Greeley and Michael Hout, "The Truth About Conservative Christians:  What They Think and What They Believe."  Here's the heart of the piece:

Of conservative Christians, they write: “Insiders and outsiders alike misrepresent, misperceive, and stereotype this large and diverse segment of American culture.” They conclude on the same note. In their final paragraphs, they write: “In our experience most of those who stereotype the conservative Christians do not know any of them.”

One of the reasons this book does not match most analyses of conservative Christians is that Greeley and Hout recognize what many other students of the subject don’t: a large number of theologically conservative Christians are African Americans, the nation’s most loyally Democratic group. Arguing that conservative Christianity is allied with conservative politics makes sense, they write, “only if you want to exclude Afro-American Christians from the ranks of the religiously conservative.” They continue: “But that is a groundless exclusion. Their ‘Evangelical’ credentials are as good as anyone else’s, in some cases marginally better.” Indeed.

And, here is Dionne's conclusion:

All this suggests that a significant share of the white Christian community, including Evangelicals, is willing to hear alternative arguments to those offered by the Right. Greeley and Hout believe the best arguments for Democrats are about economics. “Get economic justice right,” they argue, “and the conservative Christians held back by economic injustice will back you.”

For those who find themselves somewhere on the left side of politics, this is a hopeful view. And it’s certainly true that Democrats cannot win if they are not persuasive on the issues of social justice, economic insecurity, and the shift of risk away from corporations and government onto individuals.

But the very complexity of the human beings Greeley and Hout describe suggests that this economic appeal will not be successful unless it is part of a larger moral message. Conservative Christians-and Americans generally-worry about their paychecks but also about whether they can spend enough time with their families. They care about the economic opportunities their children will have and also about the values their children will inherit. They care about their own economic interests but also seek nurturing communities that are about more than money.

Creating a practical moral politics is not the explicit goal of the authors. Rather, by reminding us that conservative Christians are more interesting and more complicated than many think, Greeley and Hout have once again turned conventional wisdom on its head. In doing so, this book gives liberals a scolding and offers them some hope.

I suspect that Dionne is right when he says that an "economic appeal [to conservative Christians] will not be successful unless it is part of a larger moral message."  It seems to me, though, that this "larger moral message" might have to be a bit more "conservative" on the hot-button issues than Dionne's paragraph suggests.

Friday, October 27, 2006

Bainbridge on the Latin mass

By Rick Garnett

It might not be "legal theory," but it is Bainbridge, and that's close enough.  Here is Steve B.'s TCS column on the Latin-mass rumors. . . .

"Is There a Culture War?"

By Rick Garnett

That's the title of a new book edited by E.J. Dionne and Michael Cromartie and written by James Davison Hunter and Alan Wolfe.  Here's a description of the book:

In the wake of a bitter 2004 presidential campaign and in the face of numerous divisive policy questions, many Americans wonder if their country has split in two. People are passionately choosing sides on contentious issues such as the invasion of Iraq, gay marriage, stem-cell research, and the right to die, and the battle over abortion continues unabated. Social and political splits fascinate the media: we hear of Red States against Blue States and the "Religious Right" against "Secular America"; Fox News and Air America; NASCAR dads and soccer moms. Is America, in fact, divided so clearly? Does a moderate middle still exist? Is the national fabric fraying? To the extent that these divisions exist, are they simply the healthy and unavoidable products of a diverse, democratic nation? In Is There a Culture War? two of America's leading authorities on political culture lead a provocative and thoughtful investigation of this question and its ramifications.

James Davison Hunter and Alan Wolfe debate these questions with verve, insight, and a deep knowledge rooted in years of study and reflection. Long before most scholars and pundits addressed the issue, Hunter and Wolfe were identifying the fault lines in the debate. Hunter's 1992 book Culture Wars put the term in popular circulation, arguing that America was in the midst of a "culture war" over "our most fundamental and cherished assumptions about how to order our lives." Six years later, in One Nation After All, Wolfe challenged the idea of a culture war and argued that a majority of Americans were seeking a middle way, a blend of the traditional and the modern. For the first time, these two distinguished scholars join in dialogue to clarify their differences, update their arguments, and search for the truth about America's cultural condition.

James Davison Hunter is the William R. Kenan Jr. Professor of Sociology and Religious Studies at the University of Virginia, where he is also executive director of the Institute for Advanced Studies in Culture. Among his several books is The Death of Character: On Moral Education of America's Children (Basic Books, 2000).

Alan Wolfe is a professor of political science at Boston College, where he directs the Boisi Center for Religion and American Public Life. He is the author of numerous books, most recently Return to Greatness: How America Lost Its Sense of Purpose and What It Needs to Do to Recover It (Princeton, 2005).

My own take on the "America divided" thing is set out here.

(Thanks to Melissa Rogers for the post.)

A blog of interest

By Rick Garnett

You know what they say about television re-runs:  "If you haven't seen it, it's new to you."  On that note, here is a new blog that will be of interest to many MOJ readers, run by Melissa Rogers, who is visiting professor of religion and public policy at Wake Forest University Divinity School.  I've met Melissa several times at conferences, and we testified on the same panel a few years ago before a Senate subcommittee.  She is engaging, thoughtful, smart, and pleasant.  The blog looks to be a good law-and-religion-and-public-life resource.

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