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.

Monday, March 12, 2012

Prince Charles: Defender of the High Middle Ages?

Having been a little churlish about British anti-Catholicism last year on the eve of his son's wedding, I hasten to recommend this interesting piece by Rod Dreher making the case for the “revolutionary anti-modernism” of Prince Charles:

He is an anti-modernist to the marrow, which doesn’t always put him onside with the Conservative Party. Charles’s support for organic agriculture and other green causes, his sympathetic view of Islam, and his disdain for liberal economic thinking have earned him skepticism from some on the British right. (“Is Prince Charles ill-advised, or merely idiotic?” the Tory libertarian writer James Delingpole once asked in print.) And some Tories fear that the prince’s unusually forceful advocacy endangers the most traditional British institution of all: the monarchy itself.

Others, though, see in Charles a visionary of the cultural right, one whose worldview is far broader, historically and otherwise, than those of his contemporaries on either side of the political spectrum. In this reading, Charles’s thinking is not determined by post-Enlightenment categories but rather draws on older ways of seeing and understanding that conservatives ought to recover. “All in all, the criticisms of Prince Charles from self-styled ‘Tories’ show just how little they understand about the philosophy they claim to represent,” says the conservative philosopher Roger Scruton.

....

The Prince of Wales says the West reached a turning point in the High Middle Ages, when integrative scholasticism gave way to nominalism and Western man began to think of God as separate from Creation and humanity distinct from nature—a point also made by the American conservative Richard Weaver in his landmark 1948 book, Ideas Have Consequences. Though Charles concedes this paradigm shift paved the way for the emergence of science, it also “effectively shattered the organic unity of reality.”

As a result, he concludes, we are living in a Faustian crisis. We have become blindly proud of our power, in thrall to the ideal of progress based on extending our mastery of the material world through science and technology. We have forgotten that we are not gods. We do not long for harmony with the natural world, including learning to live within “Nature’s necessary limits,” as Charles puts it, but rather seek to conquer Nature and to impose our own will upon it, free from any obligation beyond satisfying our own desires. And, following Faust, we are bound for destruction if we do not turn back to tradition.

Tuesday, February 28, 2012

Hittinger on Maritain's Scholasticism and Politics

The Liberty Fund has republished one of Jacques Maritain's important and prescient books, Scholasticism and Politics (publisher's blurb below), accompanied by this interview with Russell Hittinger that's well worth a listen.

Scholasticism and Politics, first published in 1940, is a collection of nine lectures Maritain delivered at the University of Chicago in 1938. While the lectures address a variety of diverse topics, they explore three broad topics: 1) the nature of modern culture, its relationship to Christianity, and the origins of the crisis which has engulfed it; 2) the true nature and authentic foundations of human freedom and dignity and the threats posed to them by the various materialist and naturalistic philosophies that dominate the modern cultural scene; and 3) the principles that provide the authentic foundation of a social order in accord with human dignity.

Maritain championed the cause of what he called personalist democracy—a regime committed to popular sovereignty, constitutionalism, limited government, and individual freedom. He believed a personalist democracy offered the modern world the possibility of a political order most in keeping with the demands of human dignity, Christian values, and the common good.

Monday, February 27, 2012

Pepperdine Law and Religion Conference

Following on Rob's posts from Saturday's plenary session, I wanted to praise the work of Bob Cochran and the other organizers of the Pepperdine Nootbaar Institute's law and religion conference over the weekend and the hospitality of Dean Deanell Tacha. In addition to many of the MOJ bloggers, it was great to be in the company of such a large number of generous and interesting colleagues engaged in law and religion. Mike Paulsen and Andy Koppelman started off the conference with a pair of provocative papers and that pace was sustained through the Saturday panel with James Davison Hunter and Steven Smith. I've often stolen the line from Stanley Hauerwas that I don't believe in California. But discussing law and religion in Malibu amid bright sunshine and 70-degree weather, enjoying Paco's Tacos with Kevin Walsh in West LA, and looking over Santa Monica Bay from the Getty Villa are enough to make me wonder if perhaps there really is a California after all.

Wasserman on the Ministerial Exception and Jurisdiction

I noted previously the Supreme Court's determination in Hosanna-Tabor v. EEOC that the ministerial exception is a limitation on the merits of an employment discrimination claim, not a subject matter jurisdictional defense (and my agreement with Greg Kalscheur's ministerial-exception-as-jurisdiction argument). Howard Wasserman (FIU) has a thorough and interesting exploration of that topic here. Among Howard's basic moves is a distinction between prescriptive and adjudicative jurisdiction:

Prescriptive jurisdiction, and its corresponding enforcement jurisdiction, contrasts with adjudicative jurisdiction. The latter is a court’s root power to adjudicate—to hear and resolve legal and factual issues under substantive legal rules, and to provide the adjudicative and remedial forum to resolve claims of right. Adjudicative jurisdiction has nothing to do with the ultimate success of a claim on its merits, but rather focuses solely on whether the court has the power to provide a forum for considering and resolving the legal and factual disputes under those rules in either direction.

Failure to distinguish prescriptive jurisdiction from adjudicative jurisdiction is the fundamental flaw in the adjudicative jurisdiction approach to the ministerial exemption. Greg Kalscheur and others frequently emphasize the jurisdictional referent in church autonomy and in the religion clauses, speaking of limits on “federal jurisdiction” or “civil jurisdiction” or of constitutional limits on the jurisdiction of civil or secular government and authority.

Again, however, a court’s jurisdiction to adjudicate a case under existing substantive law is different from Congress’s jurisdiction to bring that substantive law into existence in the first place. The ministerial exemption is indeed a constitutional bar on civil jurisdiction. But the bar is not on the court’s civil jurisdiction to decide the case before it, but on Congress’s civil jurisdiction to enact legal rules regulating churches’ conduct toward ministerial employees. The nonexistence of an enforceable legal rule means the statutory claim to enforce that rule fails—on the merits.

That said: 

But religious institutions remain special even if the ministerial exemption provides a merits victory. The Hosanna-Tabor Court insisted that the First Amendment “gives special solicitude to the rights of religious organizations.” It is, or should be, an equally powerful statement on the penultimacy of the state that the church lies beyond Congress’s prescriptive jurisdiction. The religion clauses function just as much as a structural protection for religion when they bar Congress’s exercise of its prescriptive regulatory authority and place religious organizations beyond the reach of secular law. The church’s status as a special competing and predominant sovereign is doing just as much work in placing church personnel and organizational decisions beyond congressional regulation. The broader symbolic point—that the church enjoys unique constitutional immunity from the state’s sovereign reach on some issues—remains. And that symbolic point can be made without logical, theoretical, and doctrinal incoherence.

As they say, go read the whole thing.

Wednesday, February 22, 2012

Plaintiffs Win Free Exercise Challenge to Washington Plan B Pharmacy Regulations

In a challenge to Washington State's requirement that pharmacists dispense Plan B even where a pharmacist has a religious objection to doing so, the federal district judge ruled today that the pharmacy regulations were neither neutral nor generally applicable and could not survive strict scrutiny review. Judge Ronald Leighton's opinion is here, and the Becket Fund's press release is here

Thursday, February 9, 2012

Senator Kelly Ayotte on the HHS Mandate

Senator Kelly Ayotte of New Hampshire--a graduate of Villanova Law--delivered a floor speech and spoke at a press gathering yesterday about the HHS mandate. Stories and video here and here.

Tuesday, February 7, 2012

Failure of General Applicability in Iowa Road Protection Ordinance

Further to Marc's recent post on the taming of Employment Division v. Smith, the Iowa Supreme Court yesterday issued an interesting and thorough opinion in a case involving a challenge by a member of the Old Order Mennonite Church against a county ordinance prohibiting the use of steel cleats on tractors. The opinion was written for a unanimous court by Justice Edward Mansfield, a very able lawyer who was recently appointed to the Iowa Supreme Court by Governor Terry Branstad. Here is a bit from Justice Mansfield's opinion:

Upon our review, we find the County's ordinance lacks sufficient general applicability to bring this case under Smith. Section 321.442(1) is not a problem; it exempts farm machinery tires with protuberances, but only so long as they “will not injure the highway.” Such an exception is consistent with the stated purpose of protecting the County's roads. One could argue that sections 321.442(2) and (3) do not defeat the general applicability of the ordinance either. Although they allow the use of tire chains, ice grips, or tire studs, the exemptions are limited in scope (“reasonable proportions,” “not more than one-sixteenth inch beyond the tread of the traction surface of the tire”), and except for buses and emergency vehicles, in timing (“when required for safety because of snow, ice, or other conditions,” “from November 1 of each year to April 1 of the following year”). One could construct an argument, therefore, that the ordinance really serves a mixed purpose: It protects the roads from damage except when necessary for safety reasons.

Yet we believe the effort ultimately fails. School buses are allowed to use ice grips and tire studs year round. It is difficult to see how this secular exemption serves either of the foregoing dual purposes. Moreover, the County declined in September 2009 to regulate various other sources of road damage besides steel wheels. Rather, it chose to prohibit only a particular source of harm to the roads that had a religious origin. For example, although state law contains various limits on the overall weight of vehicles and also limits weight per inch of tire width, see Iowa Code §§ 321.440(2), .463, Mitchell County elected not to cover these matters in its ordinance.

The underinclusion of the ordinance undermines its general applicability. See Blackhawk, 381 F.3d at 209 (noting that a law “fails the general applicability requirement if it burdens a category of religiously motivated conduct but exempts or does not reach a substantial category of conduct that is not religiously motivated and that undermines the purposes of the law to at least the same degree as the covered conduct that is religiously motivated”(emphasis added)). We are convinced the underinclusion is “substantial, not inconsequential.” Lukumi, 508 U.S. at 543, 113 S.Ct. at 2232, 124 L.Ed.2d at 497.

Monday, February 6, 2012

Charles Dickens and the Catholic Legal Imagination

This week marks the bicentenary of Charles Dickens’s birth. When my law students ask for a summer reading recommendation, I tell them to read Bleak House, one of the great novels about law and arguably Dickens’s masterpiece. Of course, Bleak House is hardly a Grisham-esque celebration of lawyers, and perhaps for that reason it’s an especially worthwhile novel to read amid times of economic turmoil and cynicism about legal education and the legal profession. As he did to Utilitarianism in Hard Times, Dickens attacks the corruption, pettiness, and self-importance of law in Bleak House, vividly depicting the shrunken soul of Mr. Tulkinghorn and the buffoonish legalese of Mr. Guppy. Consider this passage describing Tulkinghorn’s chambers, replete with images of law's obscurantism:

The day is closing in and the gas is lighted, but is not yet fully effective, for it is not quite dark. Mr. Snagsby standing at his shop-door looking up at the clouds sees a crow who is out late skim westward over the slice of sky belonging to Cook’s Court. The crow flies straight across Chancery Lane and Lincoln’s Inn Garden into Lincoln’s Inn Fields.

Here, in a large house, formerly a house of state, lives Mr. Tulkinghorn. It is let off in sets of chambers now, and in those shrunken fragments of its greatness, lawyers lie like maggots in nuts. But its roomy staircases, passages, and antechambers still remain; and even its painted ceilings, where Allegory, in Roman helmet and celestial linen, sprawls among balustrades and pillars, flowers, clouds, and big-legged boys, and makes the head ache — as would seem to be Allegory’s object always, more or less. Here, among his many boxes labelled with transcendent names, lives Mr. Tulkinghorn, when not speechlessly at home in country-houses where the great ones of the earth are bored to death. Here he is today, quiet at his table. An oyster of the old school whom nobody can open.

But the most lasting characters in Dickens are those, such as Esther Summerson and John Jarndyce in Bleak House, whose kindness and generosity endure amid the dehumanizing world around them, another lesson I would hope a law student or lawyer would take from reading Bleak House to set off any despair about law's purposes. Catholic critics from G.K. Chesterton to Peter Ackroyd have rightly seen in Dickens a reflection of merry English Catholicism, summarized in this bit from Chesterton’s Charles Dickens (1906):

If we are to look for lessons, here at least is the last and deepest lesson of Dickens. It is in our own daily life that we are to look for the portents and the prodigies. This is the truth, not merely of the fixed figures of our life; the wife, the husband, the fool that fills the sky. It is true of the whole stream and substance of our daily experience; every instant we reject a great fool merely because he is foolish. Every day we neglect Tootses and Swivellers, Guppys and Joblings, Simmerys and Flashers. Every day we lose the last sight of Jobling and Chuckster, the Analytical Chemist, or the Marchioness. Every day we are missing a monster whom we might easily love, and an imbecile whom we should certainly admire.

This is the real gospel of Dickens; the inexhaustible opportunities offered by the liberty and the variety of man. Compared with this life, all public life, all fame, all wisdom, is by its nature cramped and cold and small. For on that defined and lighted public stage men are of necessity forced to profess one set of accomplishments, to rise to one rigid standard. It is the utterly unknown people who can grow in all directions like an exuberant tree. It is in our interior lives that we find that people are too much themselves. It is in our private life that we find them swelling into the enormous contours, and taking on the colours of caricature. Many of us live publicly with featureless public puppets, images of the small public abstractions. It is when we pass our own private gate, and open our own secret door, that we step into the land of the giants.

Charles Dickens's work is one of the high achievements in our English language of the human spirit. For that reason, everyone—even lawyers, whom he subjected to such searching criticism in Bleak House—has reason to celebrate tomorrow the comradeship and joy that Chesterton offered as his final word on Dickens:

The hour of absinthe is over. We shall not be much further troubled with the little artists who found Dickens too sane for their sorrows and too clean for their delights. But we have a long way to travel before we get back to what Dickens meant: and the passage is along a rambling English road, a twisting road such as Mr. Pickwick travelled. But this at least is part of what he meant; that comradeship and serious joy are not interludes in our travel; but that rather our travels are interludes in comradeship and joy, which through God shall endure for ever. The inn does not point to the road; the road points to the inn. And all roads point at last to an ultimate inn, where we shall meet Dickens and all his characters: and when we drink again it shall be from the great flagons in the tavern at the end of the world.

Saturday, February 4, 2012

Charitable Balance

Robert Hockett is rather more charitable in his interpretation of the Boston Globe story about the supposed similarity between Governor Romney's position on Plan B for sexual assault victims in emergency rooms and the HHS mandate. On a different front, Robert is also charitable in predicting that the Obama Administration will reverse itself on the mandate. I hope he's right on both scores. I also take his point that critics of Governor Romney on conscience protection--who, as I suggest below, are conflating important distinctions in law and bioethics--come from some unexpected quarters, but such are the confusing political times in which we live.

Friday, February 3, 2012

Mitt Romney, Conscience, and the Boston Globe's Mistakes

The Boston Globe is apparently so intent on impugning Mitt Romney and defending the Obama Administration's attack on religious freedom in the HHS mandate that it isn't letting facts get in the way. Today's Globe has a story about Governor Romney's support in 2005 of a requirement that all hospitals, including Catholic hospitals, provide sexual assault victims in an emergency room with Plan B contraception, which the Globe says is "similar" to the Obama Administration's current policy under the HHS mandate. The only problem with that charge of hypocrisy against Governor Romney is that the two policies are about entirely different things. When a number of states enacted requirements that all hospitals provide Plan B to sexual assault victims in the ER, the Catholic response was somewhat divided (summary article here), with the bishops of New York and Connecticut issuing statements agreeing to permit Catholic hospitals to follow the requirement. The USCCB Ethical and Religious Directives clearly permit administration of drugs to sexual assault victims to prevent pregnancy ("A female who has been raped should be able to defend herself against a potential conception from the sexual assault. If, after appropriate testing, there is no evidence that conception has occurred," no. 36), though there has been considerable debate about whether hospitals should administer both an ovulation and a pregnancy test and whether Plan B acts as an abortifacient. See Daniel P. Sulmasy, “Emergency Contraception for Women Who Have Been Raped: Must Catholics Test for Ovulation, or Is Testing for Pregnancy Morally Sufficient?” Kennedy Institute of Ethics Journal 16, no. 4 (December 2006): 305-31, and Nicanor P. G. Austriaco, OP, “Is Plan B an Abortifacient? A Critical Look at the Scientific Evidence,” National Catholic Bioethics Quarterly 7.4 (Winter 2007): 703–707. What is clear is that the HHS mandate isn't about emergency care of sexual assault victims in Catholic hospitals but is instead a requirement that a range of Catholic institutions cover contraceptives (including Ella, a drug with undisputed abortifacient properties) and sterilization procedures in their health insurance plans. The underlying issues in disputes about conscience protection are important, and obfuscating the facts in different cases doesn't help.