I hadn't spent much time looking at the issues raised in the latest round of the ever-present fight over public displays of religious symbols--this time, litigation brought by atheists against display of the construction beam cross on the grounds of the 9/11 Museum--until a CBS reporter asked me to comment (story here). As Johnny Buckles observes over at the Nonprofit Law Blog, there's a tricky question about the Museum's status--it's incorporated as a a private non-profit organization but receives the bulk of its funding from government sources (that doesn't strike me as a serious problem for state action purposes) and is located on Port Authority land (that's a closer call). But even if the Museum doesn't prevail in its argument that it should be deemed a private entity for Establishment Clause purposes, it might should win under Van Orden v. Perry's and Salazar v. Buono's (implied on account of the cases's procedural posture) view that display of a historically significant religious symbol does not constitute government endorsement of religion. MOJ reader thoughts?
Tuesday, August 21, 2012
Challenge to the 9/11 Museum Cross
Monday, August 20, 2012
Nussbaum on Catholic University Presidents
I was disappointed by this comment by Martha Nussbaum in an interview with the Boston Review. A few editorial remarks below:
DJ: You argue that Catholic universities that restrict their presidencies to priests (i.e., males) should lose their tax-exempt status, because there is a compelling state interest to open such positions to both sexes. But isn’t that a slippery slope? Don’t most religions have objectionable views about sexual equality?
MN: I was making a specific point about the logic of the Bob Jones v. U.S. case, which dealt with that university’s policy banning interracial dating. The Supreme Court held that to withdraw the university’s tax exemption did indeed impose a “substantial burden” on the group’s free exercise of religion, but was justified by a “compelling state interest” in not cooperating with and strengthening racism. The government was in effect giving Bob Jones a massive gift of money. The same is true today of Catholic universities, all of which (excepting Georgetown, which now has a lay president) have statutory prohibitions against a female candidate for president. By giving them a large gift, the government is cooperating with sexism. I think that refusing to give someone a gift is quite different from making their activities illegal, and nobody was proposing to do that in either case. Moreover, these were not just tendencies or social facts—after all, lots people of all religions prefer to date only people of the same race, as many studies show— we are talking in both cases about mandatory rules, official university policies. I think it’s fine to refuse to give someone a huge gift when they have such mandatory policies, so what I was saying was that if a case parallel to Bob Jones were brought concerning the Catholic universities and their presidencies, it ought to come out the same way. Or rather, it ought to have come out the same say—since of course the legal standard under which we currently operate is a slightly different and weaker one than the one that prevailed when Bob Jones was decided, so we don’t know how either case would come out today.
First, there's a misstatement or overstatement of fact. By my count, over 100 of the 240-some Catholic colleges and universities in the US were founded by and, in most cases, still have a governing relationship with communities of religious women, so not only didn't they have a "statutory prohibition[] against a female candidate for president," they prohibited male presidents for most of their history. Indeed, as I was thinking about the Catholic schools just in the immediate area near me in Philadelphia, Immaculata University, Chestnut Hill College, Rosemont College, Neumann University, and Cabrini College all have women presidents--five Catholic schools in a 20-mile radius.
I also disagree that the tax exemption for Catholic institutions is a "large gift" from the government. There's a thorny debate, of course, about how one should understand the effect of tax exemptions, but Walz v. Tax Commission, 397 U.S. 644, 675-76 (1970), suggests that tax exempt status shouldn't readily be considered a grant from the government:
The grant of a tax exemption is not sponsorship, since the government does not transfer part of its revenue to churches, but simply abstains from demanding that the church support the state. No one has ever suggested that tax exemption has converted libraries, art galleries, or hospitals into arms of the state or put employees "on the public payroll." There is no genuine nexus between tax exemption and establishment of religion....The exemption creates only a minimal and remote involvement between church and state, and far less than taxation of churches. It restricts the fiscal relationship between church and state, and tends to complement and reinforce the desired separation insulating each from the other.
Finally, the most important point is that Catholic colleges and universities are, at their core, religious institutions that should have the freedom to select their leadership based on religious considerations, including, for example, a preference for members of the sponsoring religious order--an aspect of religious freedom that is especially clear in light of Hosanna-Tabor v. EEOC. There may be good reasons for reconsidering that preference (and some schools already have), but such decisions should be made by Catholic institutions free from coercion by the hegemonic liberal state. Indeed, some of Professor Nussbaum's own work, including passages from this article defending Rawlsian political liberalism against perfectionist liberalism and from her 2008 book Liberty of Conscience, seems to acknowledge the importance of such liberal tolerance for institutional religious freedom.
Saturday, August 11, 2012
Romney-Ryan and Religion
We'll have ample time to discuss here the subtantive implications of Governor Romney's selection of Congressman Ryan, but here are two interesting facts about today's announcement (and maybe there's something more profound here about the state of religion and politics today):
1. Paul Ryan is only the second Catholic on a Republican presidential ticket--the first was William Miller, the vice presidential nominee in 1964. (Sarah Palin was baptized a Catholic but left the Church with her parents as a child.)
2. This is the first major party presidential ticket in American history without a Mainline (or its derivations) Protestant on it. Nixon-Agnew in 1968 and 1972--a Quaker and a Greek Orthodox by birth--comes close (depending on how one characterizes Quakerism) but Agnew had converted to Episcopalianism by then.
Wednesday, August 8, 2012
Philip Rieff on the Failure of Normative Institutions
Inspired by a conversation about Philip Rieff with one of the ablest and smartest lawyers I know, I pulled down The Triumph of the Therapeutic from my shelf this week and was reminded what an extraordinary (if highly peculiar) book it is. Amid the langour before the new academic year begins, consider this lengthy passage in light of the topics we frequently raise here at MOJ:
Historically, the rejection of sexual individualism (which divorces pleasure and procreation) was the consensual matrix of Christian culture. It was never the last line drawn. On the contrary, beyond that first restriction there were drawn others, establishing the Christian corporate identity within which the individual was to organize the range of his experience. Individuality was hedged round by the discipline of sexuality, challenging those rapidly fluctuating imperatives established in Rome’s remissive culture, from which a new order of deprivations was intended to release the faithful Christian believer. Every controlling symbolic contains such remissive functions. What is revolutionary in modern culture refers to releases from inherited doctrines of therapeutic deprivation; from a predicate of renunciatory control, enjoining releases from impulse need, our culture has shifted toward a predicate of impulse release, projecting controls unsteadily based upon an infinite variety of wants raised to the status of needs. Difficult as the modern cultural condition may be, I doubt that Western men can be persuaded again to the Greek opinion that the secret of happiness is to have as few needs as possible. The philosophers of therapeutic deprivation are disposed to eat well when they are not preaching. It is hard to take Schopenhauer at his ascetic word when we know what splendid dinners he had put on, day after day, at the Hotel Schwan in Frankfort.
....
The death of a culture begins when its normative institutions fail to communicate ideals in ways that remain inwardly compelling, first of all to the cultural elites themselves. Many spokesmen for our established normative institutions are aware of their failure and yet remain powerless to generate in themselves the necessary unwitting part of their culture that merits the name of faith. “Is not the very fact that so wretchedly little binding address is heard in the church,” asked Karl Barth, rhetorically, in 1939, “accountable for a goodly share of her misery—is it not perhaps the misery?” The misery of this culture is acutely stated by the special misery of its normative institutions. Our more general misery is that, having broken with those institutionalized credibilities from which its moral energy derived, new credibilities are not yet operationally effective and, perhaps, cannot become so in a culture constantly probing its own unwitting part.
It may be argued against this position that Western culture was never deeply believing—at least not in the Christian manner which, in a number of its most persuasive varieties, encouraged the seeking after individual salvations at the expense of a collective one. Even so, Christian culture survived because it superintended the organization of Western personality in ways that produced the necessary corporate identities, serving a larger communal purpose institutionalized in the churches themselves. Ernst Troeltsch was correct in his institutional title for the moral demand system preceding the one now emerging out of its complete ruin: a “church civilization,” an “authoritarian and coercive culture.” What binding address now describes our successor culture? In what does the self now try to find salvation, if not in the breaking of corporate identities and in an acute suspicion of all normative institutions?
Tuesday, July 31, 2012
Ignatius of Loyola
Today is the Feast of Saint Ignatius of Loyola, founder of the Society of Jesus. It's hard to think of a more consequential figure in Catholicism over the last 500 years, and, as Louis Dupre aptly argues in Passage to Modernity, Ignatius--most especially through the Spiritual Exercises--was an epochal figure in the making of the modern West. So on this feast day, watch Ennio Morricone conduct the music from "The Mission," give thanks for the work of the Jesuits, and consider what Ignatius wrought when he told Francis Xavier to "go set the world aflame."
Friday, July 27, 2012
Exploring Justice this Fall at Notre Dame
Following on my earlier post about John Gardner, John Finnis, and justice, this is a good time to remind readers about this fall's conference sponsored by the Notre Dame Center for Ethics and Culture under the new leadership of Carter Snead. The conference topic is "The Crowning Glory of the Virtues: Exploring the Many Facets of Justice" and the dates are November 8-10. Highlights include a lecture from Finnis revisiting and and reflecting further on his essay "The Priority of Persons," a moderated discussion on justice between Michael Sandel and Robert P. George, a lecture by Alasdair MacIntyre, and a keynote address from former Acting Attorney General and Deputy Attorney General Mark Filip. Panels include a discussion on religious liberty with Paul Horwitz, Rick Garnett, and yours truly and a panel on Thomas Aquinas on justice with Jean Porter, Father Kevin Flannery, SJ, and the lovely and talented Anna Bonta Moreland.
See here for details: http://ethicscenter.nd.edu/programs/fall-conferences/call-for-papers
RFRA and Ripeness
I suppose we could have a blog devoted solely to responding to the New York Times and have enough content and then some, but I think it's important to set a positive tone. All the same...This editorial regards the decisions in some recent HHS mandate cases to dismiss the cases on ripeness grounds as obviously correct (one suspects that dismissals on standing grounds of claims in other civil rights contexts would not be so enthusiastically endorsed by the Times). But MOJ-friend Kevin Walsh (Richmond) has an interesting post here on what Kevin terms "litigation-induced clarity" (with illustration from litigation in which President Clinton personally intervened) and how forcing the government to articulate answers at oral argument to questions pertinent to the ripeness inquiry might be worthwhile (eg, as Kevin poses in his post, "Will an entity's health plan be exempt from the mandate or not? Is the government’s attempt at accommodation based on their recognition that the mandate is a substantial burden on the exercise of religion? Why did the government finalize its exemption if it aims to expand that exemption? Why didn’t the government consider other alternatives before, rather than after, finalizing its exemption?").
Wednesday, July 25, 2012
Finnis on Justice
In a summer reading group in legal and political theory, my colleague Michelle Dempsey led us in a discussion of a paper by John Gardner on John Finnis on justice, which will appear in a festschrift for Finnis (co-edited by our own Robby George). Among the insights of the paper was a point brought home to me when reading Aquinas with students earlier this summer about the contrast between justice as primarily a moral virtue of persons and justice as a virtue of political institutions--the contrast between the way Aquinas works out his view of justice in the Secunda Secundae and the view taken by John Rawls at the outset of A Theory of Justice. Here's a bit from the conclusion to Gardner's paper:
Finnis stands up for the classical view that questions of justice arise first and foremost for each of us as ordinary moral agents, and only derivatively for political authorities and the like. Thus, contra Rawls, the question of what makes ‘social institutions’ just cannot be tackled without first tackling the question of what would make you or me just.
....
And yet, as Finnis also says, there may be a special connection between justice and the law, such that justice may strike us as the first virtue of the law, even though it strikes us as only one virtue among many for you and me, and perhaps not the one that we would most treasure among our friends and colleagues and travel agents and so forth. Why is a government department responsible for the workings of the legal system often called a ‘ministry of justice’? Why are law courts sometimes known as ‘courts of justice’? Why is legislation aimed at reform of the criminal process sometimes called a ‘criminal justice act’? Why not, for example, a ministry of kindness or a court of honesty or a criminal diligence act? Here is a good answer from Finnis:
[W]hether the subject-matter of [an] act of adjudication be a problem of distributive or commutative justice, the act of adjudication itself is always a matter for distributive justice. For the submission of an issue to the judge itself creates a kind of common subject-matter, the lis inter partes, which must be allocated between parties, the gain of one party being the loss of the other.
The point is that the bringing of a moral question before the courts is a way of guaranteeing its transformation into a question of justice even if there would, outside the courts, have been plenty of other (non-allocative) ways to approach it. If that is right, then we want our judges to be just people above all, even though we would not want our doctors or our social workers or our airline pilots, let alone our friends, to be just above all. I have explored this topic in considerable detail elsewhere, without at the time acknowledging, because without at the time being aware of, my debt to Finnis. His is a way of explaining, without condoning, the late twentieth-century tendency to think of justice as a topic for political and legal philosophers rather than for other moral philosophers. It allows us to see why Rawls began where he did, without agreeing that it was the best way to begin. For one may be led to imagine that justice is the first virtue of social institutions in general by taking an overly juridical view of social institutions, by thinking of society as a big law court and the rest of us as parties litigating for our fair shares of some social booty. Finnis does not make this mistake. But he certainly does help us to see how others come to do so.
Inazu on Justice Ginsburg in CLS v. Martinez and Remembering Justice Butler
Over at Concurring Opinions, there are a couple of posts (here and here) that should interest MOJ readers. My friend John Inazu has a typically thoughtful piece in the Hastings Law Journal about Justice Ginsburg's religious freedom jurisprudence, focused on a forceful criticism of her opinion for the Court in CLS v. Martinez. The post at Concurring Opinions just prior to that is a short discussion of Justice Pierce Butler (a Catholic, as it happens) and his courageous dissent in Buck v. Bell, which provides a nice opportunity to point readers to the Vanderbilt Law Review article by former-Minnesota prof David Stras (now on the Minnesota Supreme Court) on Justice Butler's unduly neglected legacy.
State, Society, and Economics Course in Rome
I apologize for being absent from blogging the past several weeks while teaching in Rome and adapting to a new administrative role as vice dean at Villanova. I go away for a while and come back to learn that the Supreme Court upheld (mostly) the Affordable Care Act and that Rick and Nicole Garnett have a new son!
Speaking of Rome, the course I taught was a survey of some major themes in the Catholic social tradition, with readings from Augustine, Aquinas, Maritain, and the modern papal encyclicals and conciliar documents. Interested readers can see the syllabus here. Guest speakers Father Robert Dodaro, OSA and Father Stephen Brock brought their great expertise to bear on our discussions of Augustine and Aquinas, and I took the class on a side trip to the magnificent Augustinian mother church in Rome, the Basilica Sant'Agostino, which includes the tomb of St. Monica and a wonderful Caravaggio (Madonna di Loreto).
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