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.

Tuesday, June 5, 2007

Catholics and the Common Good

I recommend Lew Daly's article, In Search of the Common Good: The Catholic Roots of American Liberalism, from the current Boston Review.  Writing for a largely secular, progressive audience, Daly tries to bring some coherence to the increasingly popular "common good" by focusing on John Ryan and the role of CST in the New Deal.  Daly concludes that:

Catholic social teaching had revolutionized the moral landscape of capitalism, not only by reinforcing the progressive critique of laissez-faire constitutionalism but, more importantly, by stealing the thunder of higher-law reasoning and restoring its communal roots. It was a turning point that made the welfare state morally necessary and, because of that, politically possible.

As for what happened to the "common good" after the New Deal, Daly writes:

Sexual freedom, extreme secularism, and other agendas of the new social liberalism did not merely replace the common good as a normative framework. It shifted the whole framework of rights from the worker and his family and community, viewed as something in need of protection, to the detached individual of liberal philosophy, regardless of economic position or need. Essentially, the common good was supplanted by individual liberation, and what remained of it in public discourse was little more than empty rhetoric (think “compassionate conservatism”).

New Deal liberalism’s common-good ideal gave workers and their families a new (yet very old) moral ground for claiming resources and power necessary for their self-preservation. . . . The individualistic social liberalism that came to dominate decades later clearly weakened, and in some ways fundamentally attacked, the familial and communal understanding of rights that shaped New Deal social policy. The protection of the family and the home from economic tyranny was no longer a certain or even desirable policy objective in an era of individual liberation marshaled against the traditional culture of family and community. Not coincidentally, as the common good disappeared from the discourse of rights in the 1960s, big business re-established its dominance in American politics, and families and communities received no new protection from the government even as older protections came under attack. The family living wage paid by a substantial majority of U.S. businesses literally vanished from the country by the late 1970s.

Daly concludes that the religious dimension of the common good was crucial to its vitality, and that "reviving a secular version of the common good" will not "guide us from chaos to community."

EEOC Guidance on Discrimination against Caregivers

The EEOC just published guidelines on when discrimination against caregivers might constitute unlawful disparate treatment under Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act.  The preamble stresses that, while no federal law prohibits discrimination against caregivers per se, there are circumstances in which particular employment decisions affecting a caregiver might constitute unlawful discrimination on the basis of some prohibited characteristic, such as gender, pregnancy, race, or association with a person with a disability. 

The examples are fascinating, covering a broad range of caregivers -- mothers, fathers, people caring for elderly parents and disabled spouses.  The EEOC cites many of the strong recent works of scholarship on the effect of caregiving on employment, including Joan C. Williams & Nancy Segal, Beyond the Maternal Wall:  Relief for Family Caregivers who are Discriminated Against on the Job, 26 Harv.Women's L.J. 77 (2003), Mary Still, Litigating the Maternal Wall:  U.S. Lawsuits Charging Discrimination Against Workers with Family Responsibilities (2005) and Joan Williams, One Sick Child Away from Being Fired:  When "Opting Out" is Not an Option, (2006)

Monday, June 4, 2007

The Civil Rights Comm'n takes on the Blaine Amendments

Media advisory here:

The U.S. Commission on Civil Rights will address school choice, the Blaine Amendments and anti-Catholicism during a public briefing at Commission headquarters on June 1, 2007. Specifically, this briefing will examine whether certain state constitutional barriers to school choice legislation – known as Blaine Amendments – discriminate against Catholics and whether, more generally, they discriminate against religion.

Excellent.  For my own "take" on the Blaine Amendments and school choice, see, e.g., this.

Salvation, suburbs, and a warning for recent law-school grads

In Sunday's Washington Post, these two very interesting pieces appeared:  First, this article, "Driven to Extremes," about the increasing number of people in the D.C. area who are commuting more than four hours a day -- drawn by "cheaper housing and better pay", but "at what price?"; and this one, "Breaking Free of Suburbia's Stranglehold," about some families who have "simplif[ied] [their] [l]ifestyles in [q]uest for [m]eaning [t]hat [c]onstant [h]ustle [o]bscured."

Together, these articles offer some needed caution to our new law-school graduates.  Sure, many of these talented and blessed late-20-somethings will go live in hip urban neighborhoods in lively and interesting cities (and bill several hundred hours each month), and so will not -- at least, not yet -- face the kind of trade-offs and challenges described in these articles.  But, before too long, many (most?) will.  My advice?  Start thinking now about cultivating a life that is not going to put you on a trajectory toward four-hour commutes, strained marriages, drive-by parenting, and a dis-integrated life.

"1688 and all that . . . "

Click here for Andrew Roberts's whiggish review of Michael Barone's new book on the so-called "Glorious Revolution".  (I prefer, of course, the "Revolution of 1688," being hard-pressed to swoon over William of Orange and the Act of Settlementof 1701.  St. Thomas Becket and St. Thomas More, pray for us.)

Catholic Press Awards / Living City

The recently announced 2007 Catholic Press Awards includes a first place award for "Is Conscience King?," an essay I put together in part informed by our MOJ conversations about conscience and public policy.  I’d like to plug not so much the essay as the magazine. It can probably be said generally that the Catholic press is a real labor of love, and the Focolare’s monthly magazine Living City is no exception. Among the editorial staff, there is a genuine effort to live the spirituality of unity—which means listening to each other and welcoming the variety of perspectives which inevitably emerge as we comment on the issues of our times.  On the basis of this openness and love for each other, the hope is to demonstrate an approach to journalism which appreciates the seeds of a more peaceful, just, and united world.  I believe it is one of those lesser-known corners of the Church where the left-right polarization, and so many other divisions, are finding quiet but profound healing.... kind of like Eduardo’s recent description of Mirror of Justice.

Amy

Closing Down the Moral Marketplace

In my work on conscience, I focus on our society's need to allow a vibrant moral marketplace to flourish, urging culture war combatants to resist using the levers of state power to shut down arguments with which they disagree.  In the California legal system, this does not appear to be a particularly popular position.  A couple of months ago, a California court ruled that an Arizona adoption-related website was subject to California law in a suit brought by a same-sex couple alleging that the website's owners unlawfully discriminated against them by refusing to post their profile online as potential adoptive parents.  This ruling was key because of California's Unruh Act, which forbids discrimination by any "business establishment." The statute has been interpreted to apply to discrimination based on marital status and sexual orientation.  After the ruling, the parties settled, with the website owners agreeing not to post the profiles of any California residents unless they were prepared to post the profiles of same-sex couples. 

Now there is a suit against the online dating service e-Harmony alleging that the company (which was started by evangelical Christians) violates California law by not including categories of "men seeking men" and "women seeking women."  The plaintiff's lawyer explains that:

[T]he lawsuit was "about changing the landscape and making a statement out there that gay people, just like heterosexuals, have the right and desire to meet other people with whom they can fall in love."

[The] lawyers expect a significant number of gays and lesbians to join the class action, which seeks to force eHarmony to end its policy as well as unspecified damages for those denied eHarmony services based on their sexual orientation.

To be clear, I agree that gays and lesbians have (and should have) the right to "meet other people with whom they can fall in love."  The more pressing question is: against whom should that right be enforceable?  I support legally enforceable rights against discrimination -- including discrimination based on sexual orientation or marital status -- in the economic (i.e., employment) and political (i.e., voting) spheres.  But in the wider social arena (e.g., Boy Scouts, student groups, adoption/dating services) the law can be a blunt (and dangerous) hammer.  And the internet raises the stakes for these invocations of state power, as state borders are increasingly irrelevant.  If the plaintiffs are serious about "making a statement" and doing so in a way that maintains the space needed for others to make their own statements about contested moral issues, I suggest that they boycott eHarmony, support more inclusive dating services, and write fiery op-eds urging the public to do the same.  "Making a statement" suggests that there is a conversation going on; it seems to me that this lawsuit is a conversation-stopper.

CNN Forum on Faith, Values, and Poverty Tonight

CNN will live broadcast "A Presidential Forum on Faith, Values, and Poverty" tonight (Monday, June 4) from 7 to 8 p.m. ET, with reporters and religious leaders asking questions of Democratic candidates Clinton, Edwards, and Obama.  It's sponsored by several groups led by Jim Wallis's Sojourners, which reports that it "has extended an invitation to the leading Republican candidates for a September forum in Iowa."

Tom

Homeschooling

I've posted a (mostly negative) comment at Prawfsblawg on the article by Prof. Kim Yuracko arguing that more regulation of homeschooling is a constitutional duty.  I'll just mention one point here dealing with empirical issues rather than theory.  Prof. Yuracko seems to think that the studies showing homeschoolers doing well educationally compared with non-homeschoolers are undercut by a selection bias of "family characteristics of the home schooling and non homeschooling families being compared."  But this makes no sense.  If homeschoolers do better than or as well as non-homeschoolers, what does it matter whether that's because homeschooling itself works better or because families who are inclined or willing to homeschool tend to have certain educationally positive characteristics?  We're not doing a scientific study to isolate the educational effect of homeschooling vs. institutional schooling; we're discussing whether homeschooling as an overall institution needs more regulation.  It seems to me, from anecdotal evidence, that homeschooling has a self-limiting nature that tilts it toward adequate education: i.e. parents drawn to it will tend to have energy for teaching their children well, because otherwise it would be a lot easier just to shoo them out the door to school.

Tom

"The pro-life industry"

The Washington Post reports that Gonzales v. Carhart has made a split among pro-life groups wider and more visible, with some groups publicly accusing James Dobson of being a leader of the "pro-life industry."