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, February 25, 2008

Obama and Educational Reform

By Greg Sisk

As has often been displayed in discussions on the Mirror of Justice, many of us believe that the most powerful engine for social justice and economic advancement for every class of Americans is high quality education. And many of us believe in turn that, especially for the disadvantaged, opportunities to attend private school through vouchers may be the only way out of a cycle of poverty (as well as allowing people to choose the kind of education that best supports their own values, including faith-based education).

Nor has it passed notice that the political elite — including every Democratic nominee for President in the past two decades (Clinton, Gore, and Kerry), as well as both current contenders for that nomination (Clinton and Obama) — have chosen to send their children to private schools, even as they close those doors to the poor.

Thus, although he was far from enthusiastic about vouchers, it was encouraging to hear Senator Obama say this recently while campaigning in Wisconsin (rest of article here):

“If there was any argument for vouchers, it was ‘Alright, let's see if this experiment works,’ and if it does, then whatever my preconceptions, my attitude is you do what works for the kids,” the senator said. “I will not allow my predispositions to stand in the way of making sure that our kids can learn. We’re losing several generations of kids and something has to be done.”

Well, this breath of fresh air in the increasingly stale education reform debate was nice while it lasted — which wasn't long. As soon as news attention was drawn to his departure from Democratic Party orthodoxy, the Obama campaign issued a statement titled “Response to Misleading Reports Concerning Senator Obama's Position on Vouchers” (Feb. 20, 2008):

There have been misleading reports that Senator Obama voiced support for voucher programs in an interview with the editorial board of the Milwaukee Journal Sentinel. Senator Obama has always been a critic of vouchers, and expressed his longstanding skepticism in that interview. Throughout his career, he has voted against voucher proposals and voiced concern for siphoning off resources from our public schools. . . . These misleading reports are particularly disturbing given that Senator Obama has laid out the most comprehensive education agenda of any candidate in this race — an agenda that does not include vouchers, in any shape or form.

The New York Sun offers wry comment, in a riff on the Obama campaign's theme:

The initial statement was change you can believe in. The follow-up message was the same old interest-group Democratic Party politics as usual. It was plainly designed to assuage the teachers’ unions, who are the enemies of change.

Sigh.

Greg Sisk

Stuntz v. Sunstein (?)

By Rob Vischer

Last week we discussed Bill Stuntz's recent essay, in which he asserts that "[c]ultures are powerful and mysterious things; the idea that laws and politicians can direct their paths is, to say the least, lacking in empirical support."  In a separate context, I brought up Cass Sunstein's work emphasizing the government's important role in the shaping and management of norms.  Randy Heinig observes:

Don't many of the objections to Stuntz's piece grow out of a line of thinking related to the Sunstein [thesis]?  Isn't norm management what the legal angle on the culture wars (including, say, Philip Johnsons' work) is all about - the recognition that law sets some important cultural and social parameters? To what extent is Stuntz trying to push Christians (and particularly evangelicals) out of the business of using law to manage/create/instill/sustain moral norms?  Would Stuntz and Sunstein disagree?

Sunday, February 24, 2008

The Dutch Dominicans, Revisited

By Michael Perry

This, from The Tablet, Feb. 9, 2008:

A LEADING theologian and key critic of Pope Benedict has rushed to the defence of the Dominicans’ Dutch province after it was silenced by the order for suggesting that lay ministers be allowed to celebrate the Eucharist if no priest is available, writes Tom Heneghan.

Professor Hermann Häring, a German theologian known in Germany as a ferocious critic of Joseph Ratzinger and who taught at the Catholic University in Nijmegen in The Netherlands for 25 years, called the analysis of the Dutch Dominicans’ booklet “Church and Ministry” by the French Dominican theologian Fr Hervé Legrand “a sword that stops all arguments”.'

In his analysis Fr Legrand warned the Dutch Dominicans not to risk schism by promoting the booklet, which he dismissed as a one-sided and theologically unfounded document (The Tablet, 2 February).

The Dutch Dominicans, who stressed in the booklet that congregations should be able to appoint lay  inisters only in emergency situations, have posted a Dutch translation of Fr Legrand’s French-language analysis on their website. In an open letter in German Professor Häring accused Fr Legrand of misrepresenting the Dutch Dominicans’ arguments and not understanding the Dutch Church. Professor Häring also rejected Fr Legrand’s charge that the Dutch Dominicans tried to overturn the Church’s  ierarchical pyramid, placing the laity over the bishops.

“Don’t forget that you are dealing with a completely democratic people. Wherever they are, the Dutch prefer to speak openly and directly. Opportunism is abhorrent to them, also in the Catholic Church.  That’s what creates so many problems for Rome,” wrote Professor Häring, an associate of Swiss theologian Fr Hans Küng.

Congrats to MOJ-er Greg Sisk ...

By Michael Perry

... on the publication of his casebook.

Litigation with the Federal Government: Cases and Materials

GREGORY C. SISK
University of St. Thomas School of Law (Minnesota)

U of St. Thomas Legal Studies Research Paper No. 07-36
Gregory C. Sisk, LITIGATION WITH THE FEDERAL GOVERNMENT: CASES AND MATERIALS, Foundation Press, 2d ed., 2007
 
Abstract:     
Although every lawyer, law teacher, and law student recognizes that the United States government is involved in every federal criminal case, fewer appreciate that the federal government is a party, as plaintiff or defendant, to between one-fifth and one-quarter of all civil cases in the federal courts. Moreover, the United States is hardly a typical litigant, as it benefits from a plethora of special procedures, defenses, and limitations on liability not available to others. Indeed, the federal government may not be subjected to suit at all absent its own express consent - a concept of federal sovereign immunity that rests somewhat uneasily within the jurisprudence of a democratic society. The United States Supreme Court and the federal courts continue to devote substantial attention to recurring questions of sovereign immunity, the distinctive jurisdictional statutes governing litigation with the United States, special forums for adjudication of particular types of governmental disputes, the limitations on governmental liability in tort and contract, and the availability of and standards for awards of attorney's fees against the government and its agencies. We can learn much about a system of government by examining when and how that government responds (or does not respond) to injuries that its agents or activities have caused to its citizens. Accordingly, any student of federal litigation or of our system of government should develop a critical understanding of the unique principles and statutes that govern when the federal sovereign becomes a party to a civil action.

In this casebook, Professor Sisk collects the leading cases, pertinent statutory texts, and scholarly commentary, together with substantial accompanying notes and questions. The book examines the federal government as a civil litigator, including the role of the Department of Justice, ethical expectations for government attorneys, and the procedural rules for litigation and resolution of claims against the government; the persistent question of federal sovereign immunity; federal governmental liability in tort, contract, and other areas; specialized tribunals for federal government cases; suits against federal officers; and awards of attorney's fees against the government and its agencies.
 

Friday, February 22, 2008

"Churches weigh in on same-sex marriage"

By Michael Perry

[HT:  Maggie Gallagher.]

San Francisco Chronicle
February 18, 2008

Churches weigh in on same-sex marriage
Bob Egelko, Chronicle Staff Writer                                                                  

The legal battle over same-sex marriage in California is also a clash of religions.

As the state Supreme Court prepares for a three-hour hearing March 4 on the constitutionality of a state law allowing only opposite-sex couples to marry, the justices have been flooded with written arguments from advocates on both sides - including two large contingents of religious organizations with sharply differing views.

On one side are the Mormon church, the California Catholic Conference, the National Association of Evangelicals and the Union of Orthodox Jewish Congregations. They describe marriage between a man and a woman as "the lifeblood of community, society and the state" and say any attempt by the courts to change that would create "deep tensions between civil and religious understandings of that institution."

On the other side are the Unitarians, the United Church of Christ, the Union for Reform Judaism, the Soka Gakkai branch of Buddhism, and dissident groups of Mormons, Catholics and Muslims. Saying their faiths and a wide range of historical traditions honor same-sex unions, they argue that the current law puts the state's stamp of approval on "the religious orthodoxy of some sects concerning who may marry."

Those groups won't be represented at next month's oral arguments, when the court will hear from the parties in the case: same-sex couples and the city of San Francisco, challenging the marriage law, and the attorney general's and governor's offices, defending the law. Also participating will be lawyers seeking to intervene on behalf of two organizations opposing gay rights.

The religious groups' written arguments, known as friend-of-the-court briefs, play the less-visible but important role of advising the justices how their ruling could affect society. Courts at all levels sometimes cite those arguments to buttress their legal reasoning.

Fifty such briefs have been filed in this case, representing hundreds of organizations and individuals - professional associations of psychologists and anthropologists, city and county governments, law professors, businesses, civil rights organizations, one former state Supreme Court justice, and advocates of "alternatives to homosexuality."

The religious coalitions have enlisted legal heavyweights: for opponents of same-sex marriage, Kenneth Starr, the former U.S. solicitor general, federal judge and impeachment prosecutor of former President Bill Clinton; and for their adversaries, Raoul Kennedy, a prominent San Francisco attorney.

[Read the rest, here.]

The Vatican and the '08 Presidential Race

By Michael Perry

MOJ readers will be interested in what Vatican savant John Allen has to say, here.

Thursday, February 21, 2008

More on Judging Decisions Not to Abort

By Susan Stabile

In a post several weeks ago, I expressed concern about the development of an expectation among some medical personnel and others that pregnant women should abort in certain circumstances.  Now we get a story of a biology professor at the University of North Carolina telling his students that "the moral thing" for older women who become pregnant is to have an amniocentesis and then abort the fetus if it has the Down Syndrome chromosome.  If we continue along this path, who else will people decide doesn't have the right to live?  If we can identify in utero that a fetus will be born with a below average intelligence, will women start being told it is immoral to bring the child into the world?  What about indications that the fetus will be born with serious physical deformities? 

Beatitude

By Rick Garnett

For the next few days, I will be in Little Cottonwood Canyon, Utah -- at Alta -- where the skiing is better than it is anyplace else on the planet.  If the goal of "Catholic" anything -- legal theory, etc. -- is, ultimately, to "be happy with Him in the next," I think that -- at 10,500 feet in the Utah sunshine -- I can consider this trip MOJ official business.   

Wednesday, February 20, 2008

Non-celibate priests, same-sex unions, and magisterial authority, oh my!

By Michael Perry

[HT:  Peggy Steinfels, at dotCommonweal.]

Catholic Church Chief Stirs Controversy With Celibacy Comments

A crowd of bishops in Rome with a statue of St. Peter in the foreground

Barely a week since taking office, the head of the German Catholic Church, Robert Zollitsch, has raised eyebrows with comments that clerical celibacy is not "theologically necessary."

In an interview with German newsmagazine Der Spiegel, 69-year-old archbishop of Freiburg, Robert Zollitsch, who is now head of the German Catholic Church, said that celibacy and the unmarried lives of priests were a "gift," but not essential.

Furthermore, he said it would be a "revolution" if the celibacy tradition within the Catholic Church were dissolved.

This week's publication of the interview prompted a swift response from Regensburg's bishop, Gerhard-Ludwig Müller.

"All of the specifics of being a priest and the corresponding rules of celibacy could not be expanded upon, as a theological context would require, in a quick interview," he said in a press release.

"The Second Vatican Council made clear in Article 16 -- "Decree on the Ministry and Life of Priests" -- what the decisive requirements are," Müller added. "That is and will remain the policy of the Catholic Church."

Zollitsch with his predecessor, Cardinal Karl Lehmann 

Müller maintained that no one should presume that the celibacy rules of the Catholic Church would be abolished.

 

Germany's Süddeutsche Zeitung daily pointed out in its Tuesday edition that such a refutation of Zollitsch's stance reflects the displeasure it caused among the more conservative bishops in the German Bishops' Conference, an assembly of the bishops and archbishops of all the German dioceses.

 

Yet the majority of bishops within the conference voted for Zollitsch last week as the new head of the German Catholic Church.

 

The archbishop of Freiburg is not only known for his more liberal views on celibacy, he has also professed his support for day-care nurseries for children (as opposed to the more traditional view that mothers should stay at home).
 

He has also said that if the German government can draw up legal guidelines for gay and lesbian relationships and marriages, he can do the same -- a view strongly opposed by Pope Benedict XVI.

More from Prof. Kmiec

By Rick Garnett

Professor Doug Kmiec expands on his recent Slate piece, "Reaganites for Obama?" (in which he wrote, among other things, "Sorry, McCain, Barack Obama is a natural for the Catholic vote") in this guest commentary, "The Moral Duty to Inquire."  Although I think the original piece was off-base in a few respects, I also think that much of what he says in this second piece -- e.g., the Faith and Catholic Social Teaching are not the property of one party, Catholic voters have a range of issues to consider, Barack Obama's record on abortion is really bad, etc. -- is sensible.

My own sense, for what it's worth, of some conservatives' reaction to Prof. Kmiec's original piece was not so much that they thought (certainly, I didn't) that it is wrong to "inquire", from a Catholic perspective, into the merits of the Obama candidacy, but that Kmiec's original piece mis-framed the debate, while the second piece, for the most part, does not.  (I say "for the most part" because the second piece still appears to regard the Catholic position on immigration as weighing against McCain and for Obama, which is not how I see the matter.  McCain, not Obama, has taken political risks for immigrants, and has actually developed -- much to the chagrin of some conservatives -- an actual record of bi-partisan cooperation.)

In any event, check it out.  Prof. Kmiec, as everyone knows, has been a stalwart defender of religious freedom and the sanctity of life, in the academy, in law, and in policy, for decades.  I do not believe that Sen. Obama -- his attractive personality notwithstanding -- is, in fact, a "Catholic natural", but certainly, as Prof. Kmiec contends, it is entirely appropriate to ask whether Obama might be, all things considered, the better choice for a Catholic.  I am pretty sure he is not, but I understand that others will disagree.

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