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.

Sunday, September 24, 2006

Religion and Division

Eugene Volokh has some posts up about Judge Karlton's concurrence in the Ninth Circuit's recent Faith Center Church case.  In that case, a panel majority, per Judge Paez, concluded that  a library may exclude "religious worship" from a policy that opens library rooms broadly to "meetings, programs, or activities of educational, cultural, or community interest."  In the concurring opinion, Judge Karlton writes:

Those, like myself, who advocate adherence to the strictures of the Establishment Clause, do so not out of hostility towards religion. Rather, we are motivated by recognition of the passions that deeply-held religious views engender, and the serious threat of marrying those passions to government power. . . .

As Volokh notes, though, it is not clear that letting a church meet in a public library, which is open to other community groups, "marr[ies] . . . passions to government power."  Judge Karlton continues:

That threat is not merely historic. One need only look about the world to see that danger in play. The scenario is the same whether it is in Northern Ireland where Catholics and Protestants kill each other in an effort to establish governmental power, in Israel, where Jews and Muslims do the same, in Iraq, where Shi’a and Sunni are engaged in similar slaughter, or in Sudan where Muslims murder Christians. Nor is that the only danger.

As Volokh comments, though, "it's not clear that evenhanded treatment of all religious groups alongside secular groups in access to government benefits has much to do with conditions that lead Catholics and Protestants to kill each other."  More Judge Karlton:

Where government plays a role in the religious life of a pluralist society, there is the danger that government will favor the majority religion and seek to control or prohibit the rites of minority religions. Such favor can only lead to alienation and social unrest. . . .

The wall of separation between church and state that Thomas Jefferson thought the First Amendment raised, in no way prejudices the practice of anyone’s religion. Instead, it serves the salutary purpose of insulating civil society from the excesses of the zealous. . . .

As I have argued, in this article, it does not seem that the assertedly "salutary purpose" of "insulating civil society from the excesses of the zealous" is one that (a) is really all that salutary, in a free civil society or (b) should be promoted through the interpretation and application by judges of the Religion Clauses.  Instead, I believe:

[We should be] mindful of John Courtney Murray's warning that we should cherish only modest expectations with regard to the solution of the problem of religious pluralism and civic unity, and also of his observations that pluralism (is) the native condition of American society and the unity toward which Americans have aspired is a unity of a limited order. Those who crafted our Constitution believed that both authentic freedom and effective government could be secured through checks and balances, rather than standardization, and by harnessing, rather than homogenizing, the messiness of democracy. It is both misguided and quixotic, then, to employ the First Amendment to smooth out the bumps and divisions that are an unavoidable part of the political life of a diverse and free people.

Creeping Death

No, this is not a post about Metallica.  Anne Althouse passes on this story, which might be of interest:   Apparently, the "right to die" is not just for the terminally ill anymore:

BRITONS suffering from depression could soon be legally helped to die in Switzerland if a test case in the country’s Supreme Court is successful next month.

Ludwig Minelli, the founder of Dignitas, the Zurich-based organisation that has helped 54 Britons to die, revealed yesterday that his group was seeking to overturn the Swiss law that allows them to assist only people with a terminal illness.

In his first visit to the country since setting up Dignitas, the lawyer blamed religion for stigmatising suicide, attacking this “stupid ecclesiastical superstition” and said that he believed assisted suicide should be open to everyone.

Veggie Tales / NBC Update

NBC's understanding of appropriate and inappropriate God-talk on network television has been attracting considerable attention in the last few days.  NBC initially claimed that its cuts to Veggie Tales were only in the interests of time.  My brother pointed out that that explanation did not quite comport with reality.  The story has exploded into what hopefully will contribute to a productive conversation on the place of religion in the public (network) square.  In today's New York Times, NBC offers the following justification for its edits:

“We are not a religious broadcaster,” [the spokesperson] said. “There are universally accepted religious values that we do think are appropriate,” but the promotion of “any particular religion or a particular denomination” is not allowed.

Of course, one of the most glaring cuts was to Bob and Larry's closing line: "God made you special and loves you very much."  If that claim does not reflect an appropriate "universally accepted religious value," what religious statement could possibly pass muster?  Since networks constantly point to parents as bearing the burden of protecting their children from offensive programming, why is religious content a non-starter?

Rob

Saturday, September 23, 2006

Judge Schiltz

A warm congratulations to our fellow MOJ-er, Lisa Schiltz, on the investiture of her husband, Patrick Schiltz, as a judge of the United States District Court.   Here's a nice release about the ceremony.  As the St. Thomas contingent can attest, Judge Schiltz is a first-rate, lawyer, scholar, colleague, and friend.  He's done wonderful things for Catholic legal education, and I'm sure he will provide great service on the bench. 

The Pregnant Women Support Act

Thanks to Tom for his posts regarding the Pregnant Women Support Act, which enjoys the support of Democrats for Life, and a number of religious and pro-life organizations.  (And Martin Sheen!).  It does not, apparently, enjoy the support of any pro-choice groups. 

Tom asks, "can any pro-life person (and anyone, pro-choice or pro-life, who wants to reduce abortions) fail to support this bill?"  Earlier, he wrote:

I cannot imagine why any pro-life member of Congress, Republican or Democrat, should not wholeheartedly support this bill.  The only reason to oppose it from a conservative side would be on the basis of a knee-jerk hostility to government spending and regulation, overriding—in a telling and disturbing way—a commitment to preventing the deaths of some unborn children.

From what I've been able to learn about the details of the Act, I agree with Tom that pro-life conservatives should support it.  (I would not reduce conservative concerns about excessive and wasteful spending -- concerns that certainly have little purchase in today's Republican Congress -- to "knee-jerk hostility," but that's another matter.) 

That said, would Tom agree that it would not necessarily be "telling and disturbing" for a conservative to oppose a particular measure that was presented by its supporters as part of an effort to reduce abortions?  I do not think it should necessarily be seen as allowing "knee-jerk hostility" to spending to trump concern for unborn children to raise questions about the effectiveness of programs like, say, WIC.  (One of the things the proposed Act would do is increase WIC funding.)  But again, this Act looks like a commendable effort.  Why aren't the pro-choice groups supporting it?  Does anyone know?

The Tablet
23 September 2006

On the path to mutual respect
Faith, Reason and Islam

Mona Siddiqui

Muslims must learn that differing views are at the core of a civil society, according to a leading Islamic scholar, and violent calls for revenge over perceived slights only fuel criticism of their religion

Once again we are seeing images of Muslims rioting, burning effigies and shouting for more deaths. Even the more respectable press is speculating on the precise nature of the link between Islam - more specifically the Qur'an - and violence. And once again "moderate" Islam is being asked to explain the actions of a menacing few. Except that the increasing worry is that it might not be a few and that the images of violence are actually a reflection of the hostility that most Muslims feel towards any criticism of their faith, culture or history.

As a Muslim I remain perplexed. Why are Muslims magnifying every incident to the level of a global conflict? Adulation and veneration of the Prophet may be laudable qualities but is this really what this furore is about? I don't think so. The ease with which marches are mobilised and threats directed are symptoms of a community not only feeling under siege but slightly revelling in their victim status. From Cairo to London, we have seen calls for apologies for a comment that could have been consigned to the annals of papal intellectualism; instead the comment became yet another mark of mutual distrust and suspicion between some Muslims and the Western world. This has damaged no one but it has made Islam appear like a complete idiosyncrasy in the West. Islam is a major world religion which doesn't need this kind of weak defence.

I'm sure that Pope Benedict did not deliberately intend to offend the Prophet in particular. But as someone who was previously the head of the Congregation for the Doctrine of Faith, he is not naive and must have known that his speech could be contentious and open to all sorts of interpretations. Whether he was ill advised or advised at all, the fact remains that he now symbolises far more than his academic credentials.

This incident is not about defending freedom of speech - that red herring brought out as the ultimate achievement of Western civilisation - it is about recognising that pitting one faith against another to show the superiority of one and the deficiencies of the other is a dangerous and arrogant exercise. By all means, explore genuine theological differences, but not on the assumption that one faith perspective has all the right answers. Both Christianity and Islam have blood on their hands. Both are missionary religions often struggling to accept the essential truth of any other faith. Both come together mostly when they want to condemn certain sexual or fertility practices as an affront to human dignity.

Intellectuals and academics must have the right to posit any arguments they want if they can support them with rigorous evidence. But in this speech one of the connections being made by the Pope was that Islamic views of divine transcendence have left very little room for reason or logos in Islam. This is unlike in Christianity, where reason and revelation have complemented each other for a very long time and provided the fundamental basis for Western society, a society where religious violence and coercion have no place. Eradicating religious violence must be a desirable objective for all of us.

The problem here is that if we continue to judge Islam only by the current images of violence then there will be very little desire to tolerate this faith, never mind see it as a legitimate expression of the Divine. Why some Muslims are so quick to resort to violent acts may be more about political self-interest than any genuine search for justice. There are no easy answers as to why acts of intense violence have become such a defining aspect of the Muslim faith.

Unfortunately, very little seems to have changed since the Rushdie affair. But let's remember that there have always been different intellectual conversations and ideologies within Islam and, even today, it would be completely wrong to think that such debates are no more than peripheral or academic to mainstream Islam. One has only to look at the discussions around sharia law and pluralism to understand that there are many people from all levels of society who are actively engaged in working for a more inclusive and just world.

The real reason why Pope Benedict's lecture touches on so many sensitivities is because the theological analysis carries within it serious political ambitions. For Pope Benedict, Christianity cannot just be Europe's past; it must also be Europe's future. It is the Pope's aspirations to make Christianity once again a living force in the West that underlies so much of his current thinking both in relation to other faiths and in his attempts to unify the Christian Church. As a Pope, he has every right to work towards this goal but Europe is not just the Catholic Church, nor is the Catholic Church just the pontificate.

The Pope cannot ignore the growing diversity within his own faith nor in the other faiths that are also a major part of Europe. True, he is concerned about the challenge of secularism, which sees itself as the repository of reason, but if religion and reason are to come together to face contemporary challenges, can it be any religion or can it only be Christianity?

Muslims must learn that differing viewpoints and multiple voices are the very essence of civil society. Even when the viewpoint touches on something as sacred as the Prophet and his legacy, responses must be dignified and respectful. This would reflect the true essence of Islam; calling for revenge and retribution is doing little more than proving all the critics right.

Professor Mona Siddiqui is Director of the Centre for the Study of Islam at Glasgow University.

Dead Embryos and Stem Cells

The Boston Globe reports today that it is possible to retrieve usable stem cells from an embryo that had stopped developing naturally and was considered dead. This would seem to surmount ethical objections. On the other hand, Robin Lovell-Badge of the Medical Research Council's National Institute for Medical Research in London observed that there is no way to prove that an arrested embryo would have stopped growing if it had been put into a woman's womb rather than a lab dish, leaving open the possibility that lab conditions halted its growth. I take it Lovell-Badge maintains that labs have a duty to place embryos in women as soon as possible. Does the moral objection to stem cells depend upon the assumption that embryos are ensouled? Assuming the use of stem cells would otherwise be problematic, is there a moral objection to using stem cells from dead embryos? Is the “stopped developing naturally” criterion a proper one to determine the death of an embryo? If not, what is? The story is at http://www.boston.com/news/nation/articles/2006/09/23/stem_cells_from_dead_embryo/

It was the best of times. It was the worst of times.

Charles Dickens begins A Tale of Two Cities with these words:

“It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way—in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only.”

Dickens opening of his great novel could well provide the context in which Archbishop Michael Miller, the Secretary for the Congregation for Catholic Education, addressed audiences at Boston College and Creighton University in the past several days. Unfortunately, neither of his major addresses delivered at those two institutions has been published yet. Only a few news reports presently offer some of the insights that he presented about Catholic higher education—which I venture to say has some bearing on the project of Mirror of Justice. These two speeches of the archbishop follow his earlier foray into an examination of Catholic higher education in the US late last October at Notre Dame, which some of us discussed at that time. One of the key phrases the archbishop used in his previous Notre Dame address was the possibility that institutions that had wandered from their mission of promoting and fostering the Catholic intellect and culture could be candidates for “evangelical pruning.” I do not think he intended to say that these pruned institutions would be closed or that faculty and staff would be dismissed from their posts. Rather, I think he meant that the pruned institutions would be able to go their own way without the ability to assert that they were still a Catholic—or Benedictine, or Dominican, or Franciscan, or Jesuit—institution.

I shall reserve the opportunity to reexamine the archbishop’s text once it becomes available. But it seems that the several news correspondents that were present and reported his address have provided some initial thoughts and questions for our consideration about Catholic higher education, in general, and where it intersects legal education that takes places on campuses identified with Catholic institutions. One way of beginning to assess the impact that his recent series of addresses may have is to consider words that one reporter attributed to the archbishop as he commenced his Boston College address on September 11. It was the opinion of the reporter that the archbishop critiqued American universities, which call themselves Catholic, because of their loss of religious identity. As the archbishop was reported to have said:

“In the U.S, the vast majority of Catholic universities are non-ecclesiastical. Instead they were founded by religious sects and are now run by a board of trustees… [But] I would like to express my support for the endeavors to secure the ecclesial membership of BC and to encourage the ongoing efforts of Boston College in becoming a truly great Catholic university… Catholic universities in the U.S. should be at the forefront of the church’s dialogue with culture.”

I am intrigued by his statement that this particular institution is making efforts to become a truly great Catholic university. But, does mean that this school is not there yet? It seems that in the estimation of the archbishop, there is still work—perhaps much work—to be undertaken for it to become “a truly great Catholic university.” While complimenting some of its endeavors, it is clear that he argues that there is still work to be done. How much work remains to be seen.

He then continued his presentation by advocating that Catholic educational institutions must present their “uncompromising Catholicity” to society. One, but not the only reason for this is that the health of these institutions matters a great deal to the Holy See. As a former university president in the United States, the archbishop also pointed out that for a university to embrace a Catholic identity it must serve as a counterpoint to other universities which fragment the knowledge of an integral, perhaps even Christian, humanism and divorce the pursuit of learning and investigation from any reference to faith. I begin to wonder when Catholic colleges and universities, including their law schools, display pride in being like the “ivies” and other “topped ranked” schools that have largely divorced themselves from integrated and Christian humanism and the nexus between reason and faith? In some instances, it is clear that these “great” institutions are distrustful of religious faith, including Catholicism, and treat religion as one of many elements in a “pluralistic culture”—but often with an abundance of suspicion or criticism. There is no doubt that in his two recent addresses that Archbishop Miller was challenging his audiences and their respective institutions to begin a renewal of Catholic identity, which includes the pursuit of the complementarity of faith and reason. In short, these American institutions of higher learning must chart this course if they are to continue to rely on the moniker “Catholic.” To fail in this endeavor would be an error that may well lead to their “pruning.”

The archbishop was not hesitant to point out that some dimensions of the problems he investigated emerge from the Catholic community itself when it opposes certain teachings of the Church and fails to examine objectively its content. It would seem from the thrust of his remarks that this sort of enterprise is counter-productive to the endeavor of the Catholic renewal he has in mind. It is clear that those who promote these critiques of the Catholic faith and its teachings have found a home in institutions where the vital relationship between faith and reason may receive lip service but not substantive endorsement and support. The institution which chooses to be Catholic, along with the members of its community, must recall that they are a witness for, not an adversary to, the Church and its intellectual tradition. Relying on the cloak of “academic freedom” does little to conceal the reality of the betrayal of the institution’s raison d’être. To be true to its identity, the Catholic institution must be free to pursue the truth—God’s truth—and not a weak human counterpart riddled with subjectivity or the skepticism that this truth cannot be discovered.

With regard to “Jesuit” institutions, Archbishop Miller made the observation that they and their members must not forget the exhortation of St. Ignatius: the institution that is Jesuit and Catholic must “help make God our creator and lord better known and served.” With fidelity to Ignatius’ insight, an institution that claims to be Catholic and Jesuit would be able to “save its place among the best Catholic universities in America and in the world.” It would follow that without this fidelity, the claim to being Catholic and Jesuit, while vigorously proclaimed, is counterfeit.

During his Creighton address, he commented on the vital relationship between the Catholic institution and the local church. Of the local ordinary, Archbishop Miller stated that he is not “an external agent” but must be a participant in and member of the life of the school. I suppose if secular organizations, some of whose missions conflict with that of Church teachings, are welcome on the campus, it should follow that the local bishop and other church leaders should always consider themselves at home at those institutions of higher learning that rely on the term “Catholic” in their name and mission.

Let me end this posting with my reference to Dickens that appeared at the beginning of this presentation. There is some evidence that we live in the best of times in the context of Catholic higher education. There has been a renewal of the vitality of members of academic communities and the institutions of which they are part to engage in the exciting and satisfying pursuit of bringing together the Catholic faith and reason. Some of the recent symposia that other members of MOJ have recently commented on would be a source of evidence demonstrating this. However, we also live in very challenging times in which the heart, soul, and mind of Catholic institutions of higher education are at grave risk. When I see prospective faculty and students who want to be members of these institutions but are rebuffed, I realize we are also in the worst of times—or at least the worst that has happened so far.

If the problems of which Archbishop Miller spoke are of our making (and I am confident that they are), so are the solutions. I look forward to an ongoing discussion about how other MOJ contributors and friends identify the responses that should emerge to address the concerns addressed by the Secretary of the Congregation for Catholic Education. I like to count myself in the group that realizes that, while there is more than some indication that we are surrounded by the season of Darkness and the winter of despair, we are capable of setting our course on the path to Heaven. We have the capacity to labor for the season of Light and the epoch of belief in the one who came to save us al—who is the greatest wisdom and the greatest truth than anyone of us could pursue.

RJA sj

Friday, September 22, 2006

Pregnant Women Support Act Introduced

Relevant to John McGreevy's question, "Can Catholics and other people of goodwill agree to make abortions rare, and mean it?", the Pregnant Women Support Act was introduced in the House on Wednesday, co-sponsored by 23 Democrats and one Republican.  I've blogged about it before here, asking whether Republicans will support this effort to reduce abortions while helping women in difficult circumstances.  An encouraging sign is that Americans United for Life and the National Association of Evangelicals have joined the USCCB and others in endorsing the bill.  The Democrats for Life website also includes a story on the differences between this and the other Democratic abortion-reduction bill: this one concentrates on supporting pregnant women and avoids the disputed issue of contraception funding (although a number of House members support both).  If I may reiterate my earlier question, can any pro-life person (and anyone, pro-choice or pro-life, who wants to reduce abortions) fail to support this bill?

Tom

Report from Ireland, by Gerry Whyte

MOJ-friend and Trinity College Dublin Law Prof Gerry Whyte writes:

The Irish High Court has handed down an interesting freedom of religion decision this afternoon. This morning, a Congolese woman gave birth to a healthy child in a Dublin maternity hospital but then suffered a massive haemorrhage, losing up to 80% of her blood. When the hospital went to give her a blood transfusion, she objected on the ground that she is a Jehovah's Witness. The hospital went to court and got an order authorising the transfusion. In what must have been an ex tempore judgment, the High Court judge accepted that the woman was compos mentis but pointed out that she was the sole relative of her son living in Ireland, whose interests were paramount, and that in the circumstances, he, the judge, had to act in favour of life, leaving it to the lawyers to argue about it afterwards.

{To read about the case, click here.]