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, October 18, 2006

The NYT series on religious exemptions

This article, from the Business & Media Institute's web site, contains what I think are some powerful critiques of the Times' recent four-part series, "In God's Name," on religious exemptions.

And here is John DiIulio, in a piece called "The New York Times v. Religion:  So Much Nonsense in a Four-Part Series":

Times readers might be interested to know that most state constitutions single out "faith groups" for special legal burdens and restrictions. About two-thirds of state constitutions have a generic no public funding clause. And most have a specific no funding for religious education clause. As University of Chicago law scholar Philip Hamburger summarized in his book Separation of Church and State, many such antireligion state constitutional provisions have their political roots in rabidly anti-Catholic 19th-century nativist movements.  . . .

Times readers might be invited to imagine an America in which all of those ostensibly favored faith groups disappeared tomorrow. Who would suffer the most, and who would have to pay to replace the social services that they now provide? For instance, pick ten big cities, and ask how many low-income non-Catholics (Title I students, Medicaid-eligible patients, etc.) are served by Catholic elementary schools, high schools, colleges or universities, and hospitals? Next, try to figure out who is subsidizing or "accommodating" whom: How much would it cost to provide the same services without religiously mobilized volunteers and institutions in the mix? Studies being conducted by me and others at the University of Pennsylvania and Harvard University aim to estimate the "replacement value" of such Catholic "civic assets." Stay tuned. . . .

And here is Eugene Volokh (UCLA):

But note how unhelpful the appeal to separation of church and state is here. The exemptions discussed in the story generally involve the government's decision not to apply various regulations and restrictions (various child care center regulations, employment discrimination laws, financial disclosure laws for charities, and the like) to religious institutions. A few involve exemptions for religious individuals, but most involve religious institutions.

Such decisions to leave church free from state regulation, it seems to me, are separation of church and state, at least under one plausible definition of "separation." It is abolishing the affirmative action for religion, by applying laws to religious institutions the same way it's applied to other institutions, that would bring church and state closer, here in the sense of having the state have more authority over the church. In fact, one form of "separation of church and state" that many "separationist" judges and legal scholars have urged is (1) discriminatory exclusion of religious institutions from many generally available government-run benefits (such as school choice funds), but (2) preferential exemption of religious institutions from many generally available government-imposed restrictions (such as many aspects of employment laws, historic preservation laws, and the like).

Of course, one can define "separation of church and state" to mean "the state ignoring people's and institutions' religion and religiosity, and treating everyone equally regardless of their church affiliation or lack thereof." This would mean (1a) evenhanded inclusion of religious institutions in generally available government-run benefits, (1b) prohibition on preference for religious institutions in such benefits, (2a) evenhanded application of generally applicable laws to religious institutions and people (though perhaps with some exemptions to some laws for all conscientious objectors to that law, whether the objection is religious or secular philosophical), and (2b) prohibition on laws that single out religious institutions and people for special burdens. Some judges and legal scholars have endorsed this view, though generally without calling it "separation." (My view comes close to this one, though with a few exceptions that I don't want to dwell on here, since this post is about the phrase "separation of church and state" rather than about any particular legal proposal.)

One can also, I imagine, define "separation of church and state" as "discriminatory exclusion of religious institutions from generally available funding programs, but evenhanded coverage of religious institutions and people in regulatory programs." That seems an odd definition to me, but who can say for sure?

My point here is that "separation of church and state" is more a slogan than a well-defined term.

"Torture Warrants," again

Alan Dershowitz has this op-ed in the Los Angeles Times, in which he remembers that he had "provoked a storm of controversy [several years ago] by advocating 'torture warrants' as a way of creating accountability for the use of torture in terrorism cases.  [He] argued that if we were ever to encounter a 'ticking bomb' situation in which the authorities believed that an impending terror attack could be prevented only by torturing a captured terrorist into revealing the location of the bomb, the authorities would, in fact, employ such a tactic."

He is probably right that the authorities "would, in fact, employ such a tactic."  However, I disagreed then, and disagree now, that this predictive judgment calls for legal mechanisms that would authorize, before the fact, their doing so.  It seems important to me that the law set its face against torture, even in such extreme cases.

Dershowitz wonders, though, if a similar storm of controversy will follow this recent statement by President Clinton:

"Look, if the president needed an option, there's all sorts of things they can do. Let's take the best case, OK. You picked up someone you know is the No. 2 aide to Osama bin Laden. And you know they have an operation planned for the United States or some European capital in the next … three days. And you know this guy knows it. Right, that's the clearest example. And you think you can only get it out of this guy by shooting him full of some drugs or water-boarding him or otherwise working him over. If they really believed that that scenario is likely to occur, let them come forward with an alternate proposal.

"We have a system of laws here where nobody should be above the law, and you don't need blanket advance approval for blanket torture. They can draw a statute much more narrowly, which would permit the president to make a finding in a case like I just outlined, and then that finding could be submitted even if after the fact to the Foreign Intelligence Surveillance Court."

Clinton was then asked whether he was saying there "would be more responsibility afterward for what was done." He replied: "Yeah, well, the president could take personal responsibility for it. But you do it on a case-by-case basis, and there'd be some review of it." Clinton quickly added that he doesn't know whether this ticking bomb scenario "is likely or not," but he did know that "we have erred in who was a real suspect or not."

Clinton summarized his views in the following terms: "If they really believe the time comes when the only way they can get a reliable piece of information is to beat it out of someone or put a drug in their body to talk it out of 'em, then they can present it to the Foreign Intelligence Court, or some other court, just under the same circumstances we do with wiretaps. Post facto….

Church autonomy at Pepperdine

I'm blogging from a cafe in Malibu, having given a talk at Pepperdine's law school on the ministerial exception and the church-autonomy principle.  After a great deal of soul-searching, I've reached a decision:  Malibu is prettier than South Bend, Indiana.

"Used"

Michael P. links here to Martin Marty's column about David Kuo's new book, "Tempting Faith."  I know David, and have no doubt -- having heard him on the radio today -- that he sincerely intended his book to be a very personal meditation on the importance of remembering that the name of the game is the Lord, and not a political majority.  I share his disappointment that the more interesting and promising aspects of the "faith based initiative" / "compassionate conservative" program (e.g., meaningful school choice) never materialized.  (Of course, that agenda was blocked, in important ways, by the President's political opponents in Congress.)  Certainly, it is not his fault that his book was released right before an election in which evangelical Christian turnout is important to the Republicans.  (Who is being "used"?)  A few quick thoughts:

Professor Marty writes "David Kuo is as well positioned as anyone to give behind-the-scenes views of how the 'elites' in the administration in Washington regard their most faithful and core supporters."  Maybe.  Other pretty "well positioned" folks -- Michael Gerson and Jim Towey, for example -- disagree quite forcefully with David's thesis.

As Professor Marty notes, the commentators on and promoters on the book have seized on David's claim that (unnamed) officials referred to some Christian leaders as "goofy" and "nuts."  It is, I suppose, not relevant that many of those (e.g., Keith Olbermann) who are currently touting Kuo's book *also* think that evangelical leaders are "goofy" "nuts."  The point is -- who are we kidding? -- some of them are.  I certainly hope that, when White House officials learned that some prominent, self-styled Christian leaders blamed Katrina on sexual decadence in New Orleans, or 9/11 on abortion, they called those Christians "nuts."

Finally, the claim that evangelical Christians have been "used" ignores the fact -- and, it is a fact -- that the current Administration has been receptive to evangelicals' concerns -- consider, for example, the efforts of the Department of Justice to defend equal-access and equal-expression rights for religious believers in public forums, or the Administration's support for vouchers in DC, or the partial-birth abortion ban.

My point is not to question Kuo's sincerity or his motives.  (I am happy to question the motives of "60 Minutes" or of the book-promotion campaign.)  Clearly, evangelical Christians (like some constituencies in the Democrats' base) are regarded by some GOP operatives as useful, but (at best) quirkly.  Nor is it to disagree with him that following Christ is something Christians should care more about than winning elections.  But, his "used" argument, in my view, is not particularly powerful.  And, I suspect that most evangelical Christians will react skeptically to a media-blitzed suggestion, three weeks before an election, that they "fast" from politics.

UPDATE:  Here is E.J. Dionne, in the Post, commenting on the Kuo book.  He says, among other things, "I hope Kuo's book promotes serious discussions in religious study groups around the country about whether the evangelicals' alliance with political conservatism has actually made the world, well, more Godly from their own point of view."  Fair enough.  I cannot help thinking, though, that a book which urged the millions of devoutly religious, church-going African-Americans to "fast" from politics, given that many prominent Democratic leaders value their votes but regard their religious values and commitments with disdain, would enjoy significantly less promotional energy in the press.

Saturday, October 14, 2006

Rod Dreher's decision

It's not "legal theory," but it seems relevant . . .

Rod Dreher -- author of "Crunchy Cons" who blogs here -- has posted a long account of his decision to leave the Roman Catholic Church and become Orthodox.  As many readers know, Dreher wrote a great deal about the clergy-sex-abuse scandal.

Here is a post, over at Commonweal, about Dreher's decision.  Here (scroll down) is something from First Things.

Dreher's account makes for hard, sobering reading, I think.  Fr. Neuhaus writes:

Having said that, however, Dreher’s essay is important. Yes, his decision is in large part reactive. But he is reacting to very real corruptions in the Catholic Church. I hope every Catholic bishop and priest will read his essay, and especially those bishops and priests who are inclined to heave a sigh of relief that we have weathered the sex-abuse scandal. And every Catholic engaged in the standard intra-church quarrels, whether on the left or the right, should take to heart what he says about Catholics being more preoccupied with church battles than with following Jesus.

Dreher concludes his reflection with this: “Still, those of you more charitably inclined, please just pray for me and my family, that we always live in truth, and do the right thing, and be found pleasing to God, the Father of us all.” No Catholic should hesitate to join in that prayer.

Italics added.

We're got juice!

Paul Caron (TaxProfBlog) has a post, "Which Law Prof blogs have the juice," in which he discusses the "blog juice rating" (click here for the juice-o-meter) of a number of law blogs.  Although he forgot to run the numbers for MOJ, here are the ratings for a few law-related blogs:

Juice_ranking_3

I ran the numbers for MOJ, and got a score of 4.6, which puts us in pretty good company!

Wednesday, October 11, 2006

Conscience, majority views, and the natural law

Eduardo notes that, in fact, most people in the United States do not believe in the "equal dignity and worth of every human being from conception to natural death" and do not believe that a "blastocyst" is a "full human being."  I am sure that he is right.  That said, it still seems to me that Michael S. is right to suggest that federally funded embyro-destroying research is, in fact, "inconsistent with America's deeper and core commitment to the equal dignity and worth of every human being from conception to natural death."  After all, that most Americans do not see the inconsistency does not eliminate it, does it?  I take it Michael was not suggesting that those Americans who support federally funded embryo-destroying research are hypocrites, but only that, because an embryo is, in fact, a human being, most Americans' support -- however well meaning -- for such research is not consistent with their commitment to the equal dignity and worth of every human being.

With respect to the natural law, Steve S. observes that most Americans do not accept the Church's teaching that it is immoral to destroy human embryos for research purposes, and states that "if natural law is written on our hearts, the Catholic position should be capable of defense without resort to authority."  I'm not a natural-law theorist, but I agree with Steve that we should be able to establish the immorality of destroying human embryos for research purposes without resort to authority.  But it is not clear to me why the fact that Americans do not believe that it is immoral to destroy embryos for research purposes establishes that the immorality of destroying embryos for research purposes can only be established by "resort to authority."

Steve continues, "[t]he law written on the hearts of Vatican Catholics does not appear to be the same as the law written on the hearts of millions of other Catholics and non-Catholics in American society and elsewhere.  Ironically the Vatican takes a countercultural position at the same time it asserts that the truth is written on our hearts."  Putting aside reservations I might have about the term "Vatican Catholics" -- and, again, admitting that I am not an expert in these matters -- I am not sure that natural-law theorists' claim is that the natural law is that which surveys establish is written on the hearts of most people.  Maybe Patrick Brennan or someone else can help me out here?

TNR debate, pt. 3

Over at the New Republic, which is hosting an online debate about religion, democracy, liberalism, and the "Theocons," Ross Douthat's reply to Damon Linker's reponse is up.  Douthat writes:

I agree that modern liberalism is founded on (among other compromises) religious believers giving up their right to impose their faith on others "in exchange for the freedom to worship God however they wish, without state interference," as you put it. I just think you take an extremely pinched and ahistorical view of what this bargain should mean in practice.

The Constitution of the United States has very little to say about religion. This omission offers an implicit rebuke to those Americans who would like to have the government endorse their personal beliefs about the nature of the Almighty, and rightly so--but it offers a rebuke, as well, to secularists like yourself who are eager to tell their fellow citizens which of their personal beliefs ought to be relevant to their political activity. You can inform me as many times as you like that, in order to participate in liberal society, I must pretend that my views about God--and, by extension, about public morality, a just society, and so forth--are as irrelevant to politics as my views about Shakespeare. But your saying it doesn't make it so (or even possible), and I think you'll have an awfully hard time pointing to any passage in the Constitution that buttresses your case. Yes, Congress may make no law establishing a religion, but, unless you take the most maximalist interpretation of what the word "establish" is supposed to mean, the establishment clause tells us next to nothing about whether and how religious convictions can inform public policy on (to list just a few of the issues in our history where religious faith has had a profound impact, for better or worse or both) war and peace, slavery and integration, poverty and the social safety net, the environmental movement and the temperance crusade, abortion and marriage law, et cetera. . . .

Now, of course, there are limits to what kinds of legislation American majorities can pass, because the Constitution--and specifically the Bill of Rights--sets limits on how far a majority can go in imposing its convictions (whether religious, civic-republican, or something else entirely) on a minority. . . .  But these limits exist to protect the individual from the tyranny of any majority, whether religiously inspired or not. . . .  The Constitution discriminates against government actions--banning guns, searching homes without a warrant, restricting the freedom of worship. It doesn't discriminate against government motives.

Yet that's precisely what you seem to think the "liberal bargain" is intended to do--to discriminate against religious motivations in politics in a way that it doesn't discriminate against, say, the motivations of a secular social engineer seeking an earthly utopia. Sure, you do offer a way out for religious believers who want to put their faith-based ideas into action: As long as they're willing to make nonreligious arguments for their ideas, you generously allow, they're welcome in the public square. . . .

But the fact remains that the advocates of racial equality didn't defend their ideals in secular-civic terms--or at least not nearly as often as they defended them in terms of the Christian morality that most of their fellow American shared. . . .

The same principle holds true if we move from specific political issues to the broader question of public philosophy. This is what you see as the crucial danger of the "theocon" project--that it doesn't just offer a laundry list of causes, but actively proposes a larger political philosophy for America, one grounded in the Catholic-Christian tradition. Again, while I understand that you disagree with and dislike Neuhaus's public philosophy, I'm baffled by the suggestion that religiously-grounded political worldviews are required by the liberal bargain to cede the field to their secular competitors. . . .

I know I'm harping on history a bit here, but I really thought that The Theocons's greatest weakness was its refusal to grapple with the complexities of the American past in any detail--as if Neuhaus and his compatriots had emerged from nowhere, rolling the apple of religious discord into a secular Olympus. If you had simply made the argument--which you did make, and make again in your response to my first post--that Neuhaus's Catholicism is ill-suited to serve as our national public philosophy, because not enough people are likely to accept it, then you might have persuaded me. . . .

But you couldn't just say that the "theocons" are out of step with America and leave it at that, because your alarmist thesis required you to have it both ways: Thus "theoconservatism" is somehow both wildly unpopular and primed to regulate every aspect of our daily life--out of touch with the public and somehow capable of keeping secular America "under siege." And, worse, you don't want to just argue with your political opponents; you want to remove them from public life entirely by accusing them of violating the bargain that supposedly holds our country together.

If you're the arbiter of what the liberal bargain means, then I want no part of it. The American experiment has succeeded for so long precisely because it doesn't force its citizens channel their "theological passions and certainties ... out of public life and into the private sphere." It forces them to play by a certain set of political rules, yes, which prevent those passions and certainties from creating a religious tyranny. But it doesn't make the mistake of telling people that their deepest beliefs should be irrelevant to how they vote, or what causes they support. The kind of secularism that you're promoting--and that Neuhaus and the rest of the "theocons" were originally reacting against--is an attempt to change those rules and impose greater restrictions on religious Americans than have heretofore existed. This isn't just blinkered, unfair, and contrary to the actual American tradition of how religion and politics interact; it's also dangerous to liberalism, because it vindicates those people--Christians and secularists alike--who have always said that faith and liberalism aren't compatible and that everyone need to choose between Christ and the republic, between God and Caesar. And, if you force Americans to make that choice, I'm not sure you'll be happy with the results.

Does Queens need more abortions?

Dawn Eden passes on a story about the proposed sale of two Catholic hospitals in Queens and about how a "provision in the deal requiring Catholic medical restrictions to remain in place at both facilities is causing consternation among reproductive health advocates."  Here is an excerpt:

[R]eproductive health advocates are lobbying the Department of Health to nix a part of the deal that would require Wyckoff to operate both facilities under Catholic medical restrictions currently prohibiting contraceptive counseling, abortions, sterilizations and other reproductive services.

"It's very clear to me that there is an unmet need for these reproductive services," said Lois Uttley, the director of The Merger Watch Project, a group supported by Planned Parenthood and The New York Civil Liberties Union, which monitors health care mergers involving Catholic hospitals.

Uttley acknowledged that is important for both hospitals to stay open, but said she would like to see "more services."

Uttley recently told the State Hospital Review and Planning Commission's Project Review Committee that the two Queens hospitals should relinquish their Catholic identity when and if they are taken over by Wyckoff, which is a public hospital.

"The two hospitals in question will no longer be Catholic hospitals," she said, adding that if the current plan is approved, it will represent "a most unfortunate missed opportunity to improve the health care of thousands of women and families who rely on these two hospitals for their health care needs."

Alice Berger, the vice president of Health Care Planning at Planned Parenthood, cited the diversity of Queens in reiterating Uttley's argument.

"The ethnic and racial diversity of these Queens neighborhoods, coupled with the need for comprehensive reproductive health services, indicates that these community hospitals should be made to broaden rather than restrict vital preventive services," Berger said.

What, exactly, is Ms. Berger saying?  "The ethnic and racial diversity" of Queens indicates a need for more abortion providers?

Pope Benedict loves MOJ

When I was a kid, I read many times "The Great Brain" series, by John D. Fitzgerald.  Basically, the books were about the lives and times of the Fitzgerald brothers -- including Tom, "the Great Brain" -- in late 19th century Utah.  Some of their adventures were colored by the fact that they were part of the very small Catholic community in an overwhelmingly LDS territory. 

In one of the books, Tom goes off to a Jesuit boarding school, where he chafes under the discipline.  When the headmaster-priest refuses to allow Tom to start a basketball team, that is the last straw.  Tom writes to the Pope.  Eventually, he receives a letter back from the Holy See.  (!!!)  The headmaster is overwhelmed and delighted -- so much so, that he does not ask questions when Tom suggests that, in the letter, the Pope endorsed the basketball-team idea.  Next thing you know, the school is awash in hoops fever.

Well.  Pope Benedict didn't exactly say anything about Mirror of Justice in his recent message to the World Congress for Catholic TV.  (He's still focusing on "old media").  Still, this (from ZENIT) seems pretty close:

The Church must not be afraid to use technology to spread the good news, said Benedict XVI to the World Congress for Catholic TV in Madrid. . . .

The note added that "the multiplicity of initiatives, in many cases evidence of the promptings of the Holy Spirit, today requires greater mutual collaboration in a true effort to enhance professional quality, so as to facilitate a more spirited dialogue between the Church and the world."

It further stated: "The new forms of communication offer a highly favorable framework for more active participation of the public together with the media, promoting the inclusion of less fortunate sectors of the public and adapting themselves in a particular way to the experience of communion that is at the very heart of the Church."

To accomplish this, added the message, "it is necessary, without fear of technology, with intrepid hope and faith, to promote a joyful, creative and professional presence in television," being "coworkers of the truth so as to offer the good news of our Lord in the multiple formats of audiovisual media, while also witnessing to the beauty of creation."

So, I say to my fellow MOJ-ers:  God and the Pope want you to blog!