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.

Thursday, July 20, 2017

Some Good Analysis of the Issues raised by the Charlie Gard case

Melissa Moschella, Assistant Professor of Medical Ethics at Columbia University, wrote an excellent analysis of the competing interests of the doctors, the courts, and the parents of 11-month old Charlie Gard, who was born with a rare genetic disease known as mitochondrial depletion syndrome.  The hospital in England where Charlie is being treated wants to withdraw his life support, while his parents want to take up the offer of an American specialist at Columbia University in New York to try some experimental treatment.  The High Court in Britain first refused the parents permission to do so, and is now reconsidering the matter.  More recently, Melissa offered some interesting thoughts about the propriety of having Charlie's court-appointed guardian ad litem being represented in court by a lawyer who is actively involved in an organization closely aligned with Dignity in Dying, an advocacy group for assisted suicide.

Wednesday, July 19, 2017

Hittinger on the "Three Necessary Societies"

This is self-recommending:  Russell Hittinger on the "Three Necessary Societies."  A bit:

Leo issued no Syllabus of Errors. Instead, he asked a question that was at once more philosophical and more practical: How do we civilize this situation? What is our proposal for social order? What can we work with in social matters, and how do we measure what’s been lost and what might be regained? He remarked: “Nothing is more useful than to look upon the world as it really is.” The paradigm of Catholic social teaching formulated by Leo resisted the temptation to utopianism, so seldom resisted elsewhere in the nineteenth and twentieth centuries. The Leonine paradigm for social analysis was simple and sturdy. It was a neo-­Aristotelean effort to put the “spirits” of the age into perennial wineskins.

Moyn on human rights, dignity, populism, and the state

This First Things essay by Samuel Moyn -- "Restraining Populism" -- will be of interest to many MOJ readers and touches on questions that have come up often here at MOJ.  A bit:

It was in this context that de Valera settled upon human dignity as a foundational principle, one that preserved the essential element of liberal social norms, which is to protect the human person from being absorbed by—and abused by—the power of the state.

In effect, de Valera was implementing into Irish law the broader shift in Catholic thinking. Although initially hopeful about the possibilities of cooperation with fascism, Pope Pius XI came to see the exaggerated power of the state, whether motivated by communism or fascism, as a threat. In his broadside against Nazi pressure on the Catholic Church in the late 1930s, Mit Brennender Sorge, Pius XI denounced actions that violate “every human right and dignity.”

An important (but not *quite* right) ministerial-exception decision

The Court of Appeals for the Second Circuit has handed down its opinion in the Fratello case, which involved a sex-discrimination and retaliation lawsuit filed by the former principal of a Catholic school.  The Court (correctly) concluded that her claims were barred, given the Supreme Court's Hosanna-Tabor decision.  "Although her formal title was not inherently religious, the record reflects that, as part of her job responsibilities, she held herself out as a spiritual leader of the school and performed many religious functions to advance its religious mission."  (Along with our own Tom Berg and several other religious-freedom scholars, I filed an amicus brief in support of the school.)  The happy warriors at The Becket Fund have a detailed page on the case, here.

I should confess to being just a bit disappointed -- perhaps it's just wounded and unwarranted pride -- by a footnote in the opinion.  Discussing the basis for the ministerial exception, the Court said this:

Any autonomy that religious groups have over their internal affairs is premised on the ʺvoluntaryʺ decisions of individuals to engage in ʺreligious activity.ʺ  Douglas Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 COLUM. L. REV. 1373, 1403 (1981) (noting that ʺ[t]he [Supreme] Court has repeatedly stated that all who join a church do so with the implied consent to [the churchʹs] government, to which they are bound to submitʺ (internal quotation marks omitted)).  Indeed, ʺwhat might be called institutional or church autonomy is ultimately derived from individual rights.ʺ  Richard Schragger & Micah Schwartzman, Against Religious Institutionalism, 99 VA. L. REV. 917, 920 (2013); see also id. at 957‐59 (noting that the conception of a ʺchurch as a voluntary associationʺ of individual conscience can be traced to the philosopher John Locke (citing John Locke, A LETTER CONCERNING TOLERATION 28 (James H. Tully ed., 1983) (1629))); Noah Feldman, The Intellectual Origins of the Establishment Clause, 77 N.Y.U. L. REV. 346, 378 (2002) (ʺBy the late eighteenth century, some version of Lockeʹs basic view of the nature of liberty of conscience had been formally embraced by nearly every politically active American writing on the subject of religion and the state.ʺ).

Although I like and admire Profs. Schragger and Schwartzman, I'm inclined to be for "religious institutionalism" and have a different view about the nature and origins of religious groups' "autonomy."  See, e.g., this and this.  Sigh.  Not even a "But see ..." cite.  All is vanity . . .

Friday, July 14, 2017

Victor Hugo's Portrait of a Bishop

Today is Bastille Day, and it would not be right to let it go unhonored here at Mirror of Justice. Here is my contribution: Hugo's Tomb
something from that titan of France now well ensconced in the Pantheon, Victor Hugo. If you do not know Les Miserables (the novel, of course, not the musical), you must give it a try. It's a rare and true pleasure to read.

It may perhaps come as a surprise that the first book of Les Miserables, "A Just Man," is almost entirely devoted to describing a bishop--Bishop Bienvenu Myriel. It may be even more surprising that this portrait, by that grand homme de la patrie, is not merely flattering but reverential. Yes, Hugo saves many sharp elbows for the clerisy. Yes, he has a rather pantheistic conception of Christianity. But it seems churlish today to dwell on these matters. And it should not go unnoticed that this masterpiece of the French Revolution and post-Revolutionary France leads its charge in praise of a cleric--a good and just man. It is, in its way, a deeply religious novel.

Here is something toward the end of the Book 1, Chapter 14 ("What He Thought"). Happy Bastille Day.

Human meditation has no limits. At its own risk and peril, it analyzes and digs deep into its own bedazzlement. One might almost say, that by a sort of splendid reaction, it dazzles nature; the mysterious world which surrounds us renders back what it has received; it is probable that the contemplators are contemplated. However that may be, there are on earth men who—are they men?—perceive distinctly at the verge of the horizons of reverie the heights of the absolute, and who have the terrible vision of the infinite mountain. Monseigneur Bienvenu was not one of these men; Monseigneur Welcome was not a genius. He would have feared those sublimities whence some very great men even, like Swedenborg and Pascal, have slipped into insanity. Certainly, these powerful reveries have their moral utility, and by these arduous paths one approaches to ideal perfection. As for him, he took the path which shortens,—the Gospel’s.

He did not attempt to impart to his chasuble the folds of Elijah’s mantle; he projected no ray of future upon the dark groundswell of events; he did not see to condense in flame the light of things; he had nothing of the prophet and nothing of the magician about him. This humble soul loved, and that was all.

That he carried prayer to the pitch of a superhuman aspiration is probable: but one can no more pray too much than one can love too much; and if it is a heresy to pray beyond the texts, Saint Theresa and Saint Jerome would be heretics.

He inclined towards all that groans and all that expiates. The universe appeared to him like an immense malady; everywhere he felt fever, everywhere he heard the sound of suffering, and, without seeking to solve the enigma, he strove to dress the wound. The terrible spectacle of created things developed tenderness in him; he was occupied only in finding for himself, and in inspiring others with the best way to compassionate and relieve. That which exists was for this good and rare priest a permanent subject of sadness which sought consolation.

There are men who toil at extracting gold; he toiled at the extraction of pity. Universal misery was his mine. The sadness which reigned everywhere was but an excuse for unfailing kindness. Love each other; he declared this to be complete, desired nothing further, and that was the whole of his doctrine. One day, that man who believed himself to be a “philosopher,” the senator who has already been alluded to, said to the Bishop: “Just survey the spectacle of the world: all war against all; the strongest has the most wit. Your love each other is nonsense.”—“Well,” replied Monseigneur Bienvenu, without contesting the point, “if it is nonsense, the soul should shut itself up in it, as the pearl in the oyster.” Thus he shut himself up, he lived there, he was absolutely satisfied with it, leaving on one side the prodigious questions which attract and terrify, the fathomless perspectives of abstraction, the precipices of metaphysics—all those profundities which converge, for the apostle in God, for the atheist in nothingness; destiny, good and evil, the way of being against being, the conscience of man, the thoughtful somnambulism of the animal, the transformation in death, the recapitulation of existences which the tomb contains, the incomprehensible grafting of successive loves on the persistent I, the essence, the substance, the Nile, and the Ens, the soul, nature, liberty, necessity; perpendicular problems, sinister obscurities, where lean the gigantic archangels of the human mind; formidable abysses, which Lucretius, Manou, Saint Paul, Dante, contemplate with eyes flashing lightning, which seems by its steady gaze on the infinite to cause stars to blaze forth there.

Monseigneur Bienvenu was simply a man who took note of the exterior of mysterious questions without scrutinizing them, and without troubling his own mind with them, and who cherished in his own soul a grave respect for darkness.

Tuesday, July 11, 2017

Two Items: Horwitz on Positive Pluralism; Podcast on OT2016

Just a couple of items to flag for readers.

First, have a read of Paul Horwitz's well crafted review of John Inazu's book, Confident Pluralism. I was particularly interested to see Paul's steps toward a defense of the positive virtue of pluralism (as opposed simply to its observation as a social fact to be managed). This is, at least for me, a difficult step to take with respect to pluralism: in my own work, I incline much more toward the "fact of pluralism" side of things. But Paul and, of course, John, are making the case with their usual panache.

Second, my colleague Mark Movsesian and I have recorded a podcast wrapping up 3 major law and religion cases either decided by the Supreme Court or on for decision next fall. Hope you have a listen.

Monday, July 10, 2017

Letters on State RFRAs: Archive Here at MOJ

Over the last few years, in the controversies over various proposed state religious freedom restoration acts (state RFRAs), a group of scholars supportive of RFRAs in general have written memo-type letters to state legislatures. Given the often simplistic and distorted public debate, the letters' main purpose has been to set the record straight on what RFRAs are likely to do: their main effect would be to protect classic religious minorities in a wide variety of circumstances, far more than the handful of instances involving small-vendor objectors to weddings etc. (on which the precedents indicate the RFRA results would be uncertain).

Those letters are archived here at MOJ. To go directly to the post collecting the letters, click here. You can also find them now by clicking on the "Resources" link at the top of the MOJ page (then, on the Resources page, look under "Links"). 

The letter signatories do not always support the particular RFRA-related legislative proposal being considered; for example, some signatories to 2014 Arizona letter took no position on the amendments to the preexisting Arizona RFRA that triggered that controversy. (It also seems worth mentioning, given the context of the controversies, that the signatories have always included supporters of same-sex marriage, including yours truly, as well as skeptics or opponents.)

Hopefully this archive will be a useful resource for scholars, advocates, and decision makers of varying views.

Tuesday, July 4, 2017

Reflections on Freedom in Contemporary Society

Like our colleague, Rob, this Fourth of July caused me to reflect on what it means to celebrate our nation. While we can all say we treasure freedom, I often feel as though that word is an abstract term for many of us. Indeed, most Americans are fortunate to have been born into a state of freedom - in the sense that we are not actual slaves.  Therefore,  when we say we are "thankful for our freedom," do we really have any sense of what it is like to not be free?  I am not sure that someone from my generation who is not in the military can really can imagine a true threat to our free lives in the same way an American who survived Pearl Harbor or the Cuban missile crisis can.  When we see those bumper stickers that say "freedom is not free," do we really understand laying down our lives in order to live outside of a totalitarian regime, end enslavement, or allow others to escape oppression?  I suspect, again with the exception of our veterans of the longest war, not.  I think most of us would be perplexed in identifying what role we play in creating the freedom that we enjoy.

But the truth is we play a significant role in achieving or denying freedom.  If we define freedom more broadly to include more than freedom from totalitarian government or the institutution of slavery, but consistent with the TVPA's definition of modern slavery- we see we have a role to play in ending it as significant as the minutmemen of 18th century New England.  

This point was brought home earlier this week by Pope Francis who reminded us that so much hunger and poverty is cause by the "indifference of many and the selfishness of the few."   While we think of actively supporting an unjust government or the institution of state sanctioned slavery as the only ways in which we remove freedom from others, we are wrong. Our indifference can have the same effect. In a world with an estimated 21 million people working in conditions of forced labor, we must recognize that more people are enslaved today than at any other time in history - including at the height of the Trans-Atlantic slave trade. We also know through research that poverty and hunger are major causes of modern day slavery - operating as factors that push people into conditions of forced labor or sex trafficking. 

Therefore, every time we ignore or are indifferent to the hunger and poverty of others, we are encouraging modern day slavery. On this  Fourth of July, the Holy Father's words implore is to do more than eat hot dogs and apple pie and appreciate our freedom. Rather, they call us to appreciate our role as consumers or bystanders who, through our indifference, contribute to slavery of others. In the words of Pope Francis, "All of us realize that the intention to provide everyone with his or her daily bread is not enough. Rather, there is a need to recognize that all have a right to it...." Therefore, perhaps we can celebrate this freedom by - as consumers and bystanders - working to eliminate the enslavement of others and truly appreciate freedom in a new way. 

Catholic Convocation: Joy of the Gospel

The Catholic Convocation just ended with Mass celebrated by Cardinal DiNardo and words from the Nuncio, who was present throughout. As a follow-up to Rick's post, it was a true joy to be with 3500 fellow Catholics at this event convened by the Bishops. In addition to Rick's panel, Helen Alvare (MOJ alum) gave wonderful remarks on the complementarity of women and men and the need for that complementarity to be present throughout the Church. MOJ friend, John Garvey gave a wonderful talk for the need for the renewal of the Catholic Intellectual life on our college campuses. Bishop Barron must have been listening. This morning, in a moving talk, Bishop Barron said "I hate a dumbed down Catholicism."

The word that kept coming up in my mind throughout the Convocation was "accompaniment." Radical missionary disciples must be present in this broken world by accompanying others, especially those on the various peripheries, on this journey through life, meeting them where they are and helping them experience the infinite mercy that is saving us. Bishop Cheri of New Orleans reminded us a) that "we are all sinners! This does not prevent the witness of Christ and His mercy from shining through us." and b) he expressed the urgency in this call, "we must be living epistles" because "we might be the only book someone reads." Supreme Knight Carl Anderson mentioned a perfect example in the art of accompaniment in the life of Fr. Stanley Rother who will be beautified in Oklahoma City on Sept. 23 in a Mass open to all.

Monday, July 3, 2017

The Catholic Convocation: "The Joy of the Gospel in America"

Along with fellow MOJ-er Michael Scaperlanda (and a few thousand of our closest friends), I had the pleasure of attending and participating in the USCCB-hosted Convocation down in Orlando this weekend.  The theme for the 3 day event -- which gathered together a wide range of clergy, bishops, lay leaders, teachers, diocesan workers, etc. -- was "The Joy of the Gospel in America."  Here is the website.  I participated on a "breakout" panel -- one of dozens -- on church-state relations.  A number of the keynote talks, masses, homilies, etc. were recorded (and are still being recorded) -- I'd encourage MOJ readers to check it out!