This weekend marked the second anniversary of the death of our friend and colleague, Fr. Robert Araujo. R.I.P.
Monday, October 23, 2017
Remembering Fr. Araujo
Thursday, October 19, 2017
Gov. Jerry Brown vetoes misguided attempt by California legislators to narrow Hosanna-Tabor
Here's a good report by my Notre Dame colleague, Margot Cleveland, on the welcome rejection by Gov. Brown of AB-569, or "The Reproductive Health Non-Discrimination Act." The Act would have "made it illegal for a California employer to discipline or fire employees for 'their reproductive health decisions, including, but not limited to, the timing thereof, or the use of any drug, device, or medical service'" -- and, troublingly, it would have recognized only a very narrow (i.e., more narrow than the scope of the ministerial exception) religious exemption.
Tuesday, October 17, 2017
Chapman and Hortwitz review Tebbe's "Religious Freedom in an Egalitarian Age"
My friend and longtime collaborator, Prof. Nelson Tebbe, has written a much-noticed book, Religious Freedom in an Egalitarian Age. (Congrats!) I read today two respectful, admiring, but critical reviews -- one by Paul Horwitz and the other by Nathan Chapman - both are recommended. (To be clear: There are other reviews out there too -- read them as well!) Here's a bit from Paul:
. . . Despite its focus on reasoned elaboration, a certain magical thinking drives this book, with its relentless mixture of is and ought. “We should insist both that current conflicts between religious freedom and equality law are intricate and that they are not intractable,” Tebbe writes. “Justified solutions can and must be found.” Readers may rightly worry about words like “should” and “must.” That we face urgent problems is no guarantee that we can find a way to “diminish or dissolve the apparent tension between peace and justice” in this area. But Tebbe wants lasting solutions; and though he insists that his book “is not a recipe for the end of disagreement,” he advocates a method, and a set of outcomes, that will “shape civil rights law and religious freedom guarantees into the future.” Like the warring camps at our law and religion roundtable, he wants to set the terms of engagement and treat certain “settlements” as final. The losers should not only “understand why their arguments have been rejected,” but accept defeat with good cheer.
That seems unlikely . . .
And, from Nathan:
. . . Receiving and giving reasons for moral judgment calls for openness, hard work, smarts, and, above all, good faith. It entails living within a moral community, or overlapping moral communities, that give life to moral habits and render moral reasoning coherent. Tebbe rightly resists reducing moral reasoning to nothing more than an act of individual will. Unfortunately, as discussed more fully below, the way he applies social coherence to mediate the conflict between religious liberty and equality seems to verify, rather than to challenge, the skeptics’ view that religious liberty jurisprudence is inevitably personal value preferences all the way down.
The book is best understood as an application of one version of Rawlsianism to an array of legal questions arising from a clash between Progressivism and the view that Progressive norms should not always override religious liberty. The reader will encounter a helpful tour through a variety of challenging legal cases and a number of novel proposals for solving vexing doctrinal puzzles. . . .
Waldron on the Dignity of Old Age
Prof. Jeremy Waldron has posted a paper, "The Dignity of Old Age," at SSRN. Get it here. Here's the abstract:
It is important to complement our general account of human dignity with accounts of the specific dignity of particular phases of human life. In this paper I address the dignity of old age--the aspects of elderly life that command our respect. An account of this kind is particularly important for a balanced view of the assisted suicide debate. For even if we favor a right to die, we need also to be able to make sense of the dignity of a life lived to the end without a chosen procedure to bring it to an end. The account given in this paper addresses the approach of death and, for the purposes of dignitarians analysis, ranges around it other aspects of old age, such as wisdom, authority, debilitation, suffering, and issues about self-presentation and personal autonomy.
Reminder: Follow Mirror of Justice on Twitter
A great way to spread the word about MOJ is to follow us on Twitter (and promiscuously re-Tweet our posts)!
Georgetown Conference on the 50th Anniversary of Murray's Death
This event should be interesting to MOJ readers, given the extent of Murray's influence on many of us:
On August 16, 1967, John Courtney Murray—Jesuit priest, theologian, and public intellectual—passed away less than a month before he would have turned 63. For the final three decades of his life, he taught at Woodstock College and edited the Jesuit journal Theological Studies. Celebrated on Time magazine’s cover (December 12, 1960) for contributions to American domestic and foreign policy debates and for sympathetic, if critical, understanding of religion in American public life, he later helped compose Vatican II’s “Declaration on Religious Liberty” (Dignitatis Humanae).
From Georgetown’s introductory Theology course, “The Problem of God”—named after Murray’s 1962 Yale Lectures—to the mission of the Berkley Center for Religion, Peace, and World Affairs, Murray’s influence can be seen throughout the university’s programming. This year, Georgetown celebrates John Courtney Murray’s legacy in the fiftieth anniversary year of his passing with a day-long event examining Ignatian practice and Catholic and Jesuit identity.
This event is co-sponsored by the Berkley Center for Religion, Peace, and World Affairs and the Office of the President.
Friday, October 6, 2017
Guidance and Memoranda from the Attorney General on Religious Freedom
Several months after the President's religious-freedom executive order (which, many observed, didn't appear to actually do very much), we see today some important and meaningful action from the Administration on the religious-freedom front. The wheels are now turning to expand the religious exemption from the HHS contraception-coverage mandate and the Attorney General has issued memoranda and guidance on how the Department of Justice will deal with religious-freedom matters that are quite striking in their full-throated endorsement of a robust understanding of our "first freedom." The Attorney General stated clearly, in keeping with longstanding American tradition, that religious freedom is a fundamental human right and not merely a policy preference.
In some respects, the documents simply summarize, re-state, and endorse existing and established Supreme Court doctrine. In some other respects, however, the guidance and memoranda take strong religious-freedom stands on questions that are contested. For example, the Department rejects the claim, advanced by some scholars and activists, that religious exemptions are unconstitutional if they "deprive a third party of a benefit." In addition, the fact that the guidance states that federal contracts and grants should not be conditioned on religious institutions giving up their religious-hiring rights or on abandoning aspects of their religious character will be welcome to the many religious agencies, schools, universities, hospitals, etc., that cooperate with government in pursuing the common good.
Third, the Department appears to understand the recent Trinity Lutheran decision broadly, as -- for example -- not permitting governments to exclude otherwise eligible K-12 schools from a voucher, scholarship, or tax-credit program. Presumably, the Administration will take this position in court when the issue arises, as it inevitably will.
A welcome set of developments.
Tuesday, October 3, 2017
A new piece in Notre Dame Magazine: "Life Affirming"
I was pleased to be asked to write a piece for Notre Dame Magazine on my sense of the "life issues" in our current moment. It wanders around a bit, and covers a lot of ground, but here it is. A bit:
The proposal, the claim, and the truth that grounds the comprehensive and integrated pro-life position is that every person matters and no one matters more than anyone else. This was the message of Pope Francis’ Installation Mass homily, and it is at the heart of the Catholic Church’s social and moral teaching. A human being is a human person, and to be a human person is to have great, inestimable worth. This is true when we are very small and vulnerable, when we are old and sick, when our life seems all potential and when it seems at its very end, when we are strong, beautiful and creative, and when we are weak, ugly and venal. Our ultimate, transcendent worth does not depend on what we accomplish, on what we are capable of doing, on what we can produce or contribute, on how much we are wanted, or on how much we cost. No one is worth less and no one is worthless.
Politico’s Timothy Alberta has called economist and think-tanker Arthur Brooks “the most interesting man in Washington.” At a recent forum at Harvard’s Kennedy School, Brooks was reflecting on the unedifying state of public culture and conversation in America, and he proposed that the problem with our politics is not disagreement, division, polarization or even anger. In a free society, strong disagreements about at least some things that matter are, this side of Heaven, inevitable. For Brooks, what is striking is not simply the “Big Sort” into red and blue enclaves or our increasingly tribal divisions that infect everything down to debates about the regulation of large sugary sodas. Our real problem, he suggested, is “contempt,” which he defined as the “conviction of the worthlessness of another human being.” Who can deny that “contempt” is pervasive and ubiquitous? Indeed, in many contexts it seems to be the currency of our discourse. Anger can be resolved, but contempt, Brooks warned, leads to permanent estrangement.
Brooks is on to something. During the campaign — recall the Access Hollywood tape or his imitation of Serge Kovaleski — and since his election, President Trump has not hesitated to mock, insult and degrade — to express “contempt.” On “the other side,” one of the turning points in the election was Clinton’s expression of dismissive disdain for those in the “basket of deplorables” to which she consigned so many of those who resisted the appeal of her candidacy. No one could spend much time at the rallies or following the Twitter feeds of either of the two candidates and their surrogates, fans and followers and not be struck by the vicious, deep contempt with which the two camps regarded each other. It was contempt, not “heritage” or “history,” that inspired and informed the marchers’ chants in Charlottesville.
Now, Brooks was not speaking directly to abortion or to the “life issues.” Still, his assessment is helpful. The pro-life position is not merely a package of negative prohibitions but is a thoroughgoing response to the call and challenge to solidarity and mercy. To stand in solidarity — in community — with other persons is to embrace these other persons’ dignity, value, worth and destiny, and to truly — despite differences in ability, strength, beauty, talent, advantages and prospects — regard and treat them as equally bearing the image of God. What could be more contrary to solidarity than, as Brooks says, the estrangement that contempt produces? “Life” isn’t really “winning” — it cannot, really — if the political community and conversation are saturated with contempt.
Pope Francis has forcefully condemned abortion as a symptom of and contributor to what he calls our “throwaway culture.” It is an arresting and illuminating image, and it resonates with Brooks’ diagnosis and definition of contempt. What is it, after all, that we throw away? We throw away what we think is worthless, that which we can no longer bother fixing, saving, nurturing, protecting, repairing, treasuring or loving. It is, the pope has said, “precisely the weakest and most fragile human beings — the unborn, the poorest, the sick and elderly, the seriously handicapped, et al. — who are in danger of being thrown away.” But not only are there no “worthless” people, there are, as C.S. Lewis remarked in his sermon The Weight of Glory, “no ordinary people.” Those “we joke with, work with, marry, snub, and exploit” — those we mock on Twitter, those at whom we direct contempt, those we “throw away” — are “immortals” and “everlasting splendours.”
(Yet) another take on the Trinity Lutheran case
From me. Here. A bit:
Americans have, for better or worse, grown used to overconfident pronouncements from the members of the Supreme Court about matters – the true nature of golf, for example, or the long-term cultural implications of social media – that might seem outside their training and expertise. That said, Chief Justice Roberts was on pretty solid ground when he observed, in his opinion for the Court in the recent Trinity Lutheran case, that “[y]oungsters . . . often fall on the playground or tumble from the equipment. And when they do, the gravel can be unforgiving.” And, the foundation is no less firm for the Court’s conclusion that the First Amendment does not permit governments to discriminate against religious believers and organizations when distributing public benefits.
The Trinity Lutheran litigation was about replacing the pea-gravel on a church-run preschool’s playground with shredded scrap tires. The question presented to the justices was whether the Constitution allows the state of Missouri to refuse an otherwise-available reimbursement grant for this project simply because the applicant is a church. By a vote of 7-2, they concluded – correctly, I believe – that it does not. It is, as the Chief Justice wrote, a “basic principle” that the First Amendment “protect[s] religious observers against unequal treatment[.]” However, while the Court answered this question clearly, the ruling invited, and ignored, others. As a result, the case’s implications and impact are, for now, uncertain. . . .
Thursday, September 28, 2017
Activist group (and NYT) continue to misrepresent nominee's work
In this (uncharacteristically) pretty low piece about Prof. Amy Barrett's personal religious activities, Laurie Goodstein of the NYT relies on the partisan distortions of Prof. Barrett's academic work that are still being pushed by an activist group called "Alliance for Justice." MOJ readers will recall that, at Barrett's hearing, some of the senators were fixated on a article she co-authored 20 years ago, as a student, regarding the obligations of Catholic judges in capital cases. Here's what Goodstein writes:
Ms. Barrett was questioned in particular about a 1998 scholarly article in which she and her co-author argued that sometimes Catholic trial judges should recuse themselves from the sentencing phase of death penalty cases. At the hearing, Ms. Barrett backed away from that position, saying she could not think of any class of cases in which she would recuse herself because of her faith.
It's not "back[ing] off", at all, to say (a) sometimes Catholic trial judges should recuse themselves frmo the sentencing phase of death penalty cases and (b) that the role of an appellate judge is not likely to present any situations that might similarly require recusal. Indeed, the article itself discussed the distinction between the two roles. Unfortunately, the Times piece simply serves as a vehicle for pushing the activist group's distortion.
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