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.

Friday, September 7, 2007

More on the Weak(ened) Religious Exemption in ENDA

By Thomas Berg

Following up on Rick's post about the new version of the Employment Non-Discrimination Act (ENDA):  I joined with the Christian Legal Society's Center for Law and Religious Freedom this week to submit written testimony to the House Education and Labor Committee objecting to the narrow (and as Rick observes, substantially narrowed) religious exemption in the bill.  The analysis parallels that in Rick's post.  The concern is not with the general idea of prohibiting employment discrimination on the basis of sexual orientation (which, speaking for myself, I believe can be warranted in a range of circumstances as a matter of justice or prudence); it's with the lack of a meaningful exemption.  A summary quote from our analysis: "Without substantial exemptions, the effect of this bill will be to pressure and marginalize those organizations and religious adherents who hold [the view that homosexual conduct is immoral], not to promote the diversity that ENDA's proponents claim to affirm."

Tom

The Pope's Letter to Prison Ministers

By Rick Garnett

Here (thanks to ZENIT) is a link to the Pope's recent address to prison ministers.  The address is called "Called to be Heralds of God's Infinite Compassion."  Here is the key passage:

Judicial and penal institutions play a fundamental role in protecting citizens and safeguarding the common good (cf. Catechism of the Catholic Church, 2266). At the same time, they are to aid in rebuilding “social relationships disrupted by the criminal act committed” (cf. "Compendium of the Social Doctrine of the Church," 403). By their very nature, therefore, these institutions must contribute to the rehabilitation of offenders, facilitating their transition from despair to hope and from unreliability to dependability. When conditions within jails and prisons are not conducive to the process of regaining a sense of a worth and accepting its related duties, these institutions fail to achieve one of their essential ends. Public authorities must be ever vigilant in this task, eschewing any means of punishment or correction that either undermine or debase the human dignity of prisoners. In this regard, I reiterate that the prohibition against torture “cannot be contravened under any circumstances” (Ibid., 404).

In my view, this passage should not be understood as rejecting desert-based or retributive theories of punishment.  That is, nothing in this passage suggests that "retribution", and not "a desire to rehabilitate" or "possible pro-social consequences" is not what justifies the state in imposing "punishment" on offenders.  This passage speaks directly to the structuring of punishment, not its justification; it speaks to some of the end-results we should want our punishments to achieve, but it does not deny the traditional Catholic position that the primary purpose of just punishment is retribution, properly understood (i.e., not as "vengeance.")

Over at Vox Nova, Morning's Minion has a different take.  But, I think it is a mistake to read this passage as saying that "defense against the criminal" is one of the two "key functions" of the penal system.  Given the Church's longstanding teachings regarding punishment, the Pope's mention of "safeguarding the common good" clearly (to me) embodies the notion that the "common good" is served when the order disturbed by the offense is restored, i.e., by retribution, properly understood.

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Resources for Moving "Beyond Balance"

By Amy Uelmen

My short piece “Beyond Work-Life Balance” is has just been published in the Fall 2007 issue of CHURCH Magazine.  It argues that “balance” imagery can actually feed into what Gaudium et Spes termed “among the more serious errors of our age”—the “split between the faith which many profess and their daily lives.” (n.43), and gives a few examples of how a more integrative spirituality might play out in the context of large law firm practice.  All part of a larger project—and life’s work!—to explore the spiritual resources which might help expand the horizons of how lawyers think about time and the role of work in their lives, also developed in Part-Time Paradox).

Church Magazine, a quarterly on pastoral theology and ministry, is a terrific resource.  It is put out by the National Pastoral Life Center, whose projects also include the Catholic Common Ground Initiative and the Social Action Roundtable. 

Amy

What it mean to be a Catholic? III

By Steve Shiffrin

I did not maintain that Father Araujo thought the majority of American Catholics had separated themselves from the Church. I wondered whether under his premises, or that of the American bishops, or that of others on the MOJ site, the majority of American Catholics had separated themselves. I accept his answer, but I am left wondering why. What are the criteria that determine whether a Catholic by his or her beliefs has left the Church? The statement of the American bishops rejects selective assent to the teachings of Church leaders. But the majority of American Catholics engage in selective assent. To my mind, the American Bishops have claimed more power than they rightly have. I remain interested in determining what those who support the statement of the American Bishops think about the status of American Catholics and the American Church. If the Bishops are right, the Church in America (and elsewhere) is in crisis. To my mind, the problem is that the leaders of the American Church do not see the Holy Spirit working in the People of God.

A Dangerous Change to the Employment Nondiscrimination Act

By Rick Garnett

For several years, the Employment Nondiscrimination Act -- which would add sexual-orientation to the list of prohibited grounds for employment discrimination -- has been working its way through and around Congress.  This past summer, additional hearings on the Act were held, and Rep. Pelosi apparently intends to move on the Act in the coming months.  (Here is a link to HR 2015.)

Let's start by stipulating that it would be reasonable and justifiable for Congress to provide that covered employers may not discriminate on the basis of sexual orientation.  Now, turn to the actual proposed text.  While earlier versions of the proposed Act had said, clearly, "[t]his Act shall not apply to a religious organization," the current version says that the exemption would only be available to a religious organization that has "as its primary purpose religious ritual or worship or the teaching or spreading of religious doctrine or belief." (See Sec. 6(a)).  Another Section (Sec. 6(b)), says that, with respect to non-exempt organizations, the proposed Act would not apply to "the employment of individuals whose primary duties consist of teaching or spreading religious doctrine or belief, religious governance, supervision of a religious order, supervision of persons teaching or spreading religious doctrine or belief, or supervision or participation in religious ritual or worship."

So . . . the Act would apply to parochial-school teachers, unless they are "religion" teachers?  It would apply to (pretty much) any employee of, say, Catholic Charities?

Then there's this, from Sec. 6(c):

Under this Act, a religious corporation, association, educational institution, or society may require that applicants for, and employees in, similar positions conform to those religious tenets that such corporation, association, institution, or society declares significant. Under this Act, such a declaration by a religious corporation, association, educational institution or society stating which of its religious tenets are significant shall not be subject to judicial or administrative review. Any such declaration made for purposes of this Act shall be admissible only for proceedings under this Act.

I'm not entirely sure what this means, but it strikes me as strange for the government to declare that a religious association's ability to hire (anyone?) be contingent on its identifying, for the government, those of its "tenets" (what is a "tenet", anyway?) it regards as "significant."  (Are there insignificant "tenets"?)

I've heard some rumors that President Bush has said he would veto the Act if it contains this language.  We'll see.

Pro-life defeats in Congress

By Rick Garnett

On September 6, 2007, the Senate voted on the "Boxer amendment" regarding the longstanding Mexico City policy, which had prevented federal money from flowing to foreign organizations that promote and / or perform abortion as a method of family planning.  (We might think of the Boxer Amendment, then, as a big-money sop to a powerful corporate special interest, i.e., Planned Parenthood.  One suspects, of course, that this is not how the Amendment will be cast in the press.)

Here is the roll-call vote.  Only one Democrat -- Ben Nelson, not Robert Casey -- voted to preserve the policy.  Also, the Senate rejected the Brownback Amendment, which would have prohibited contributions to organizations that promote and / or perform abortions as a method of family planning.  Two Democrats -- Ben Nelson and Robert Casey -- voted in support of the Amendment.  The Senate agreed, however -- just barely (!!) -- to another Brownback Amendment, which denies federal money to groups that "support coercive abortion."  Only two Democrats -- Ben Nelson and Robert Casey -- supported the Amendment.

A point of clarification

By Robert John Araujo, SJ

Last night I was reading MOJ and enjoyed Prof. Julian Velasco’s comments about the discussion some of us have been having regarding ecclesial issues. While I am in large agreement with many of his fine points, I did not say, imply, or in anyway suggest in any of my postings that would support the statement: “at some point, rejection of Vatican teachings separates one from the Church. Have most American Catholics already done so according to Father Araujo?” I have written to Prof. Velasco to inform him of this misattribution. In reading earlier postings, I noticed that Prof. Steve Shiffrin introduced this point in his posting entitled “What Does It Mean to Be Catholic? I” upon which Prof. Velasco relied. To clarify this confusion, I state for the record that I have not said, implied, or suggested that most American Catholics have rejected “Vatican teachings.” Indeed, people can and do separate themselves from the Church by the actions they take and the views they convey, but I have not quantified this by expressing the view that most American Catholics have separated themselves from the Church. If someone thinks that this is my thinking, then their thinking is mistaken.   RJA sj

Thursday, September 6, 2007

Velasco on the Catholic Question

By Steve Shiffrin

In your Mirror of Justice post, “What does it mean to be a Catholic?”, you ask:

Clearly , at some point, rejection of Vatican teachings separates one from the Church. Have most American Catholics already done so according to Father Araujo?

 

This is a very interesting question, but not one that is likely to lead to very good discussion or reliable answers.  The psychological cost of answering “yes” is too great.  If one were to answer yes, that would seem to make the person quite judgmental and self-righteous.  Most people do not want to feel that way, and certainly they do not want to be perceived in that way.  Thus, you cannot expect many “yes” answers. Accordingly, you cannot have much confidence in your “no” answers, which might be the product of dishonesty or rationalization/denial.

 

I don’t know what the answer is for others; I can only judge myself (and even that, imperfectly).  In doing so, I would ask, first, are the teachings in question “definitive”, and second, am I “knowingly and obstinately repudiating” them?  I am not a theologian, so I do not know the answer to the first question.  I assume that the Church’s teachings on the core sex-related issues (divorce, homosexual relations, masturbation, contraception, abortion, etc.) are, but there are many non-sexual issues which may not be so clear.  So, if I disagree with the Church, I ask myself whether I am “knowingly” repudiating the Church’s teachings.  Obviously, the answer at this point would be yes.  (If I know it’s definitive, then my repudiation is clearly “knowing”.) Then I ask whether I am “obstinately” repudiating them.  I answer that question by considering whether I insist that I am right, regardless of what the Church teaches?  If so, then I am probably obstinately repudiating the Church’s teachings.  On the other hand, if I merely do not understand how the Church is correct, but leave myself open to the possibility of correction and pray for understanding, then I probably am not obstinately repudiating the Church.  (This process has led me to withhold “final” judgment when I might otherwise disagree with the Church.)

 

So far, so good.  The real tough part comes when I know the Church’s clear position on an issue and cannot agree with it.  Although I leave myself open to the possibility of correction and pray for understanding, I do not, in good faith, believe the conduct to be wrong.  How am I to act?  I know that the Church would say that I should refrain from the conduct in question.  But I may not have the will or strength to do so – especially given that I do not share the conviction that it is wrong.  I think THIS is the real issue: not whether I agree or disagree, but how I act upon my disagreement. I am pretty sure that the Church’s answer would be that I must refrain from receiving communion if I engage in the conduct in question.

 

I won’t judge anyone else, because I cannot read their minds and hearts.  But I know myself.  I am a sinner.  I’m not proud of it, but I also am not squeemish about admitting an obvious truth.  And when I am sinning, I hope the Church – as teacher – will let me know.  I also hope that theologians (and others) won’t obfuscate the matter.

 

I wouldn’t go so far as to say that I’ve ever “separated myself from the Church,” because I always attend mass and consider myself to be a Catholic, however imperfect.  But there are times – indeed, long periods of time – when I cannot, in good faith, receive communion.  At least, not without confession.  It would not strike me as implausible that others might reach the same conclusion from time to time.

 

But, as I mentioned in the beginning, asking whether “most American Catholics” should avoid communion is probably not the best idea.

 

Regards,

 

Julian Velasco

Associate Professor of Law

University of Notre Dame

211 Law School

P.O. Box 780

Notre Dame, IN  46556-0780

The Vatican

By Steve Shiffrin

I use the imprecise term the "Vatican" teaches instead of the "Church" teaches because I do not believe that teachings of Church leaders are necessarily teachings of the Church. I use the term Vatican as a placeholder for any belief that could count as a teaching of the magisterium. First, as I said in a prior post, "Related to this issue is the question of what counts as a teaching of the Church. If the Church is the People of God with the hierarchy playing an important leadership role, what is the status of hierarchal teachings that are not accepted by the faithful (recognizing that the question of what counts as acceptance could be very difficult to ascertain on some issues and easy on others)? I am unsure. Consider this passage from Lumen Gentium, “The entire body of the faithful, anointed as they are by the Holy One,(111) cannot err in matters of belief. They manifest this special property by means of the whole peoples' supernatural discernment in matters of faith when "from the Bishops down to the last of the lay faithful" (8*) they show universal agreement in matters of faith and morals. That discernment in matters of faith is aroused and sustained by the Spirit of truth. It is exercised under the guidance of the sacred teaching authority, in faithful and respectful obedience to which the people of God accepts that which is not just the word of men but truly the word of God.(112).”

    Second, as I said in another post, Of course, whatever the degree of authoritativeness of the objective conscience view, it does not purport to be an infallible teaching of the Church, and the issue before us is the degree to which one is required to assent to such teachings. There is a pastoral issue here that I think is of great importance. Father Sullivan, Magisterium: Teaching Authority in the Catholic Church 171-72, makes this point extremely well in my opinion:

 “I am convinced that it is important for Catholics to be aware of the difference between infallible and non-infallible teaching by the magisterium, and of the corresponding difference between the kinds of assent that each of them calls for. Ignorance of these differences can have several unhappy consequences. One is that Catholics who have actually fulfilled their obligation to practice docility regarding such teaching, and have been really unable to give their interior assent to it, may still feel themselves guilty of disobedience to the pope because they do not follow his teaching on a particular point. Another is that Catholics who do accept such teaching may judge all others who do not, to be disobedient or disloyal, and may be scandalized to know that even priests or theologians have reservations about certain points of ordinary papal teaching.

    “The tendency to obscure the difference between the infallible and the non-infallible exercise of magisterium, by treating papal encyclicals as though they were practically infallible, has, I believe, been largely responsible for the fact that many people, when they learn that encyclicals are not infallible after all, jump to the conclusion that one need pay no attention to them. If people have been led to think of the infallibility of the pope as the basic motive for giving their assent to his teaching, it is not surprising that when this motive is no longer available, their assent will fail as well.”

"The Vatican" dixit?

By Patrick McKinley Brennan

Prompted by Steve Shiffrin's most recent post, I'm finally going to pose a question that's been on (and off) my mind for more than a season.  What do you mean, Steve, when you say "the Vatican teaches" or "the Vatican says" or "the Vatican teaching on?"  Also, what do others mean when they use these and similar expressions? 

Nothing is signed "the Vatican."  What happens if we substitute the real signatories for "the Vatican?"  Does this create problems for Steve's (or others') positions on authority, obedicence, etc?   

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