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.

Thursday, September 25, 2014

Levin, "Taking the Long Way"

By Rick Garnett

I highly recommend Yuval Levin's essay in the most recent issue of First Things, "Taking the Long Way."  Especially this:

Not everyone has the good fortune of a flourishing family, or the opportunity for rewarding work, or a liberal education, or a humbling faith, let alone all of these at once. But some combination of these soul-forming institutions is within the reach of most, and the work of reinforcing them, sustaining the space for them, and putting them within the reach of as many of our fellow citizens as possible is among our highest and most pressing civic callings. That calling, rather than a hyper-individualist liberationism, should be the organizing principle of our political life, helping us see what to conserve and how to advance.

The NYT and Christianity

By Rick Garnett

According to the New York Times, "the vast Church of the Holy Sepulcher mark[s] the site where many Christians believe Jesus is buried."  Rod Dreher is right:

I can understand someone living in Pakistan, or Sichuan province, not getting that all of Christianity, in its many versions throughout the ages, rests on the resurrection of Jesus. I don’t understand how an educated American, whatever his beliefs, can not know that. Yet that story got through several layers of editing at the Times before making it into print. It’s staggering.

Tuesday, September 23, 2014

"Institutions in Context": John Inazu reviews Paul Horwitz's "First Amendment Institutions"

By Rick Garnett

Here's the abstract:

This review of Paul Horwitz’s First Amendment Institutions applauds Horwitz’s call for us to take institutions and their contexts seriously. Horwitz shows why “acontextual” First Amendment thinking and doctrine lead to rigid formalism and missed opportunities. He enhances his argument with four nuanced chapters on specific institutions: universities, presses, churches, and libraries. These chapters bring to life our diverse institutions and their differences. It is less clear whether the descriptive differences that Horwitz highlights warrant the doctrinal differences that he advocates. In other words, even if Horwitz is right to call our attention to institutions, do his observations translate to First Amendment doctrine that can meaningfully distinguish between them? I turn first to pressures internal to Horwitz’s institutional categories by focusing on two of his core examples: universities and churches. I then examine Horwitz’s chapter of associations and suggest broader implications than he acknowledges. I conclude by offering a different way to parse Horwitz’s argument: embracing his institutional distinctiveness within the time-honored public-private distinction that he rejects.

Tuesday, September 16, 2014

Steve Smith: "Die and Let Live: The Asymmetry of Accommodation"

By Rick Garnett

An important, even if not uplifting, essay by Prof. Steven Smith:

In culture war battles over same-sex marriage, one group of scholars (“the moderators”) offers what is held out as a “live and let live” truce: same-sex marriage would be legalized, qualified by exemptions to protect groups and individuals who oppose same-sex marriage on religious grounds against liability or legal sanctions. The appeal of this proposal lies in part in its implicit claim to symmetry. The compromise– namely, same-sex marriage with religious exemptions-- is said to respect the legitimate interests of each side. Consequently, the moderators view both religious conservatives and secular egalitarians who decline to embrace the compromise as intransigent, and as unreasonably attempting to “impose their values” on others.

This essay criticizes the moderators’ implicit claim of symmetry. In fact, neither rejection of same-sex marriage nor legalization qualified by exemptions is equally respectful of each side’s interests. Both sides understand this fact, and they understand that it is better to be in a position of granting accommodation than to be in need of accommodation. In addition, the parties face different risks if they find themselves in a politically subordinate position and hence in need of accommodation. The final section of the essay considers the likelihood that either party, if politically dominant, will be inclined to accommodate the other party. While emphasizing that the question is inherently speculative, the essay argues (contrary to much academic opinion) that Christian conservatives have both the intellectual resources and the historical experience to support an attitude of tolerance. Whether secular egalitarianism has these toleration-supportive ingredients is more uncertain

Call for Papers: "The Scope of Religious Exemptions"

By Rick Garnett

The Bowling Green Workshop in Applied Ethics and Public Policy will take place in Bowling Green, Ohio, April 17th-18th, 2015. The keynote speakers are Robert Audi (University of Notre Dame) and Andrew Koppelman (Northwestern University).

Those interested in presenting a paper are invited to submit a 2-3 page abstract (double-spaced) by November 15th, 2014. We welcome submissions in all areas in applied ethics and philosophical issues relevant to this year’s conference theme: the scope of religious exemptions. We are especially focused on papers that address normative questions about religious exemptions, including the moral-philosophical justifications for religious exemptions and how often and to whom religious exemptions should be granted. We will consider multiple approaches to the topic, not merely in political philosophy and political theory, but normative ethics, metaethics and applied ethics.

More information is here.

"Telling the Truth about Aleksandr Solzhenitsyn"

By Rick Garnett

Over at Law & Liberty, there's a podcast with Daniel Mahoney about Aleksandr Solzhenitsyn, his work, his reception, his legacy, etc.  Here's part of the intro:

Comes now the great Daniel J. Mahoney, author of penetrating intellectual biographies of Bertrand de Jouvenel, Raymond Aron, and Charles de Gaulle, among other books, to discuss his latest work, The Other Solzhenitsyn. Mahoney, co-editor of The Solzhenitsyn Reader, provides us in this discussion a tremendous introduction to the Russian dissident writer’s corpus of writings and a rebuttal to his many critics.

We might say that most western writers who, from their position of faux outrage, frequently critique their governments, societies, and cultures have Solzhenitsyn envy, earnestly desiring that their work could perform something even close to the role of the Russian anti-communist writer par excellence. Not that they admire Solzhenitsyn’s political and moral philosophy, and his belief that freedom is ultimately born of spiritual commitment, but that no one will ever say of their work that it put a “sliver in the throat of power.”  Such was the praise given Solzhenitsyn after the publication of One Day in the Live of Ivan Denisovich in 1962. . . .

Whenever those polls and quizzes asking for "lists of 10 books that changed your life" or "that stayed with you" circulate on Facebook, Ivan Denisovich is always one of my ten.  (I wrote on of my college-application essays on his Cancer Ward and remember clearly buying "Warning to the West" at a bookstore in Cambridge, MA during a Spring Break visit to a friend there.  Yes, I am a geek.)  

Solzhenitsyn was, of course, a hero to the anti-communists in the United States during the Cold War, but his popularity waned as he turned his critical idea to western materialism, consumerism, etc.  Also, many critics today see him as "anti-democratic, theocratic, and pro-Putin, to name a few[.]"  In the podcast, Mahoney discusses and responds to these critics' claims.

Viability, dependency, and abortion

By Rick Garnett

James Mumford has a thoughtful piece in The Telegraph ("It's time to rethink our attitude to abortion") that engages the widespread but (he thinks, and I agree) misplaced emphasis placed on the "viability" of unborn children in abortion law and in the abortion debate.  Here's a bit:

But why should being capable of being born alive – being able to survive the onset of breathing and oral feeding – be the make-or-break threshold? Viability may have solidified as a legal concept, but the science shows that in reality it’s a moving target. . . .

More fundamentally, what feminist thinkers have shown is the fact that viability constitutes a profound category mistake. Human beings arrive in the world in a state of radical dependency. To insist they reach a stage of independence before we confer rights upon them is to assume, in the words of feminist political philosopher Seyla Benhabib, a "strange world" in which "individuals are grown up before they are born". . . .

Mumford's piece resonates strongly, I think, with what many of us here at MOJ (and many others, too) have said about the content of the Church's "moral anthropology," i.e., that it provides an account of the human person, of human dignity, and of human destiny that is not built on autonomy and self-sufficiency so much as on dependence and relationships.  (For an essay of mine that touches on this account, go here.)  

Monday, September 15, 2014

Freedom of Religion and the Freedom of the Church: My Response

By Rick Garnett

Over at Law & Liberty, I have a reply posted to the three very thoughtful responses authored by Donald Drakeman, Paul Horwitz, and John Inazu.  Here's the reply (and you can access the original piece and the responses there).  A bit:

. . . Drakeman’s [response] serves to underscore the importance of insisting that there is more to religious freedom than an accommodations-and-exemptions regime. After all, such a regime always and inevitably (and understandably) involves the balancing, by the state, of the costs and benefits, to and for the state, of accommodations and exemptions. A political community that loses sight of the many ways that religious institutions’ and actors’ religious and religiously motivated activities serve the common good is going to be less likely to accommodate and exempt. It is important, then, to emphasize that a moral and legal commitment to religious freedom also involves an appreciation and (enforced) respect for the limited but still real “autonomy” of religious institutions and actors as well as for the limits on the state’s regulatory authority. . . .

Paul Horwitz – whose important book, First Amendment Institutions, has both shaped and challenged my thinking about the subject under discussion – is right to remind readers that “religious institutionalism” is “not necessarily a libertarian position”; it does not require or even invite “disdain for the state”; it is does not reflect or imply “complete skepticism about or outright hostility to government.” It does, I think, necessarily involve (as Horwitz says) the ungrudging acceptance – indeed, the welcoming – of non-state authorities and of occasional “incongruence” (to borrow Nancy Rosenblum’s term) between, on the one hand, the rules that govern and the goals that move the liberal state and, on the other, the practices and values of non-state groups, communities, associations, and institutions. As my colleague, Robert Rodes, has put it, there is a “nexus” between religious and political authorities that involves both cooperation and contestation, mutual support and resistance. . . .

. . . Inazu . . . expresses some doubt – friendly doubt, I think, but doubt nonetheless – about the “constitutional” and especially the “theological” limits on what I called the “translation, not transplantation” of the “freedom of the church” into present day law and practice. He writes, “The freedom of the church is first and foremost a theological argument. Some theological arguments are at least partially translatable; indeed, we have seen examples of this kind of translation unfold within American law through concepts like conscience and forgiveness. But other theological concepts are less susceptible to translation from the theological perspectives out of which they emerge.” I take the point, but would respectfully maintain that Inazu is underestimating the political, legal, and social dimensions of the idea and therefore overestimating the theological limits to translation. To be sure, Christians and Christianity have an account of what “the Church” really is that is not political and that is about the “reality of Jesus Christ”, not “the special nature of ‘religion.’” They – we – are called to bear witness to that reality and not to – in Inazu’s words – “domesticat[e]” it or make it more suitable to moderns or comfortable to liberals. Nevertheless, I continue to think that there is plenty of content in the “freedom of the church” idea, argument, proposal, and struggle that is not only translatable to, but urgently needed for, the this-side-of-Heaven project of ordering our lives together.

More on the Herx case and the ministerial exception

By Rick Garnett

A few days ago, I put up a short post on the Herx case -- having to do with a discrimination lawsuit against a Catholic school by a teacher -- and characterized the trial court's ruling -- rejecting the school's ministerial-exception argument -- as misguided.  (I didn't post the link to the opinion, but it is here.  Reading it again, I continue to think it is off-the-mark.)

A reader wrote in with some questions and -- with permission -- I'm posting some of them, and saying a bit in response, here . . .

I’d be interested in reading in the future your response to the judge’s distinction between the Herx and Perich, the teacher in Hosanna-Tabor. I think his approach is quite sound.

I think the trial judge read Hosanna-Tabor far too narrowly and incorrectly focused simply on the question whether the teacher in question is "ordained" or is instead a "lay teacher."  Under the terms of her contract, it is quite clear (to me) that she is expected to be, and is held out as being, charged with the formation in the faith -- through example, teaching, and witness -- of the school's students.  That she is not an ordained minister or a theology teacher should not end the inquiry.  The trial judge's approach is, it seems to me, closer to the one employed by the Sixth Circuit in Hosanna-Tabor than by the one employed by the (unanimous) Supreme Court.

I’d also be interested in reading more about your proposed presumption that K-8 teachers in parochial schools are ministers. I’ve had kids on the younger end of that spectrum in religious school (probably not parochial since the school was affiliated with a Catholic university run by a religious order) and it frankly never occurred to me that the teachers were all “ministers” unless that term is defined very broadly such that the cafeteria staff, janitors, etc. are also included.

I think it is easy to draw a line between "teachers" and "cafeteria staff, janitors, etc."  In my view, given the mission of Catholic parochial schools as it is described in the writings on Catholic education by recent popes and by the relevant USCCB bodies, a teacher (lay or ordained) at a Catholic school is a "minister" of the Church within the meaning of Hosanna-Tabor.  Whether or not courts will agree with me is, of course, an open question.  I suspect, in the current climate, many will not.

My reader's question does underscore for me the importance of making as clear as possible -- and of making more clear than some Catholic schools have done in the past -- how the school conceives of its mission and of its teachers' role.

Getting more specific, would you apply this presumption to Herx (who did not teach religion classes and had a contract different from teachers who did)? How about a teacher who did not share the parochial school’s religious affiliation (Herx and Perich did but I think you’ll agree that this fact pattern does arise)? What if the parochial school didn’t have any religion classes or chapel services at all or had special teachers, perhaps more recognizable as “ministers,” lead them? In other words, how would the presumption be overcome, if indeed it could be overcome and is not simply a “church always wins” rule?

I would apply the "presumption" to any teacher in a K-8 school, regardless of whether that teacher is a Roman Catholic or not.  (Again, I'm assuming that every teacher's contract does, or should, speak clearly about the school's mission and the teachers' role.)  A Catholic school should not lose the right to make mission-related decisions in the hiring context simply because, in some cases, the school decides that a non-Catholic can advance that mission.  (I think it is obvious that, in many cases, non-Catholics support and advance the distinctly Catholic mission of Catholic schools.)

If a "parochial school didn’t have any religion classes or chapel services at all," then I'd think it wasn't much of a parochial school.  I'd be surprised if many, or any, K-8 Catholic schools fit this description.

I'm thinking that the "presumption" could be overcome if, in the circumstances of a particular case, it was clear that the teacher was not expected by the school to play any role in the formation of the students and this fact was made clear to the teacher as well as to the relevant parents.  But, yes, in cases involving a "parochial school" -- that is, a traditional K-8 meaningfully Catholic school -- the school should usually win.

To be clear . . . none of this means that the school is behaving well, or fairly, or justly, or that a particular decision cannot be criticized on moral or fairness grounds.  As I wrote here, and in more detail here. . .

 

Cardinal George on "swimming against the tide"

By Rick Garnett

Here's a bit that jumped out at me, from Cardinal George's recent column, "A Tale of Two Churches":

. . . Swimming against the tide means limiting one’s access to positions of prestige and power in society. It means that those who choose to live by the Catholic faith will not be welcomed as political candidates to national office, will not sit on editorial boards of major newspapers, will not be at home on most university faculties, will not have successful careers as actors and entertainers. Nor will their children, who will also be suspect. Since all public institutions, no matter who owns or operates them, will be agents of the government and conform their activities to the demands of the official religion, the practice of medicine and law will become more difficult for faithful Catholics . . .

Generally speaking, I've thought (and tried to speak and write) more in terms of engagement and participation than retreat and retrieval.  Generally speaking, I've thought it important to insist -- even as I find much to admire in the MacIntyre-ish localism / roots / place / "build community" themes that run through, say, the stuff at Front Porch Republic -- that it continues to be important to do all one can, in politics, law, and litigation, to protect the rights and place of religious believers and institutions in the public square and in the public conversation.  Not too long ago, I might have thought that Cardinal George was being a bit too pessimistic.  Now . . . I'm not sure he is.

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