Friend and law prof Eric Claeys sends these thoughts, regarding the conversation Tom and I have been having (here, here, and here) about federalism, judging, moral conflict, and John Roberts:
Tom and Rick are having a very interesting discussion about whether a judge is ethically responsible for the consequences that follow secondarily when he enforces a structural provision of the Constitution like federalism. I asked Rick to weigh in because I've been thinking about this issue, in connection with an article I just wrote critiquing thoughts by Hadley Arkes on the same issue.
Tom has a point that the judge ought to be concerned about being culpable, but if one tallies up all the other factors about which the judge ought to be comparably concerned, Rick turns out to be more or less right.
To illustrate my point, I'm going to run with Tom's example (civil-rights laws in 1960s America), assume that a judge follows pure original-meaning principles to decide how he is required to decide the case as a judge, and then applies some sort of prudential calculus to ask whether his action is morally justifiable and prudent in the circumstances. (Largely because I think original-meaning interpretation brings out the tensions especially starkly; I think other theories of interpretation could raise the same sorts of considerations in a different case.) Tom's right; the judge needs to be concerned about the possibility of providing material cooperation to some remote degree in a vivid and immediate injustice. But in the same vein, the judge also needs to consider ...
1. Whether the judge makes himself culpable for undermining the rule of law by upholding the civil-rights statute. Unclear. If the judge turns a blind eye to the original meaning of "interstate commerce" here, he lays down one small but unmistakable precedent for judges disregarding text for policy preferences in other cases. He's then a little bit responsible for deviations from the Constitution in other specific cases, and for general politicization and corruption of the judiciary if they occur.
2. Whether the judge makes himself culpable for other bad consequences to the federal-state system. Also unclear. If the judge upholds the civil-rights laws, the precedent he sets will be used to uphold other laws--federal environmental schemes, new anti-discrimination laws, gun-free school-zone laws, &c &c. Now, if one is Judge Noonan and thinks that federalism is a relic, no problem. But if one subscribes to the principle of subsidiarity, Commerce Clause federalism reflects an instinct that local governments tend to regulate more effectively on a lot of fronts than central governments. Now, local regulation can be parochial and organized to discriminate against local minorities, as Federalist 9&10 anticipated and Jim Crow confirmed. But the claim behind Commerce Clause federalism is that local regulation works better *often enough* that the local and national functions ought to hardwired constitutionally into the system. To take just one of thousands of examples implicated, maybe by upholding the civil-rights laws, the judge becomes responsible for the bad consequences that follow when national production quotas force poor urban consumers to pay a lot more for wheat and milk than they would probably pay in a system where states regulated agriculture in a competitive interstate market.
These balances of diffuse possibilities get pretty complicated pretty fast. Better for the judge to adjudicate with what he deems the best theories of interpretation & adjudication available. Those theories will mark off classes of cases where the judge has no power, or (in structural cases) where a level or branch of government that seems clearly incompetent or unjust ends up with practical control over a situation. A judge ought to lose sleep over cooperating formally with gross injustice; I don't think he ought to lose sleep over these kinds of situations.
[A piece worth pondering from the September 24th issue of The Tablet. Excerpts follow. To read the whole piece, click here.]
Don’t dare to speak its name
Paul Michaels
The
long-awaited Vatican document on homosexuality and the priesthood is
expected to be released soon. The signs are that, while it may please a
few in the Church, it could cause acute distress to many gay priests
who are faithful to their vows of celibacy
IS
THERE ANY purge coming in the Catholic Church? There are clues detected
by the secular media that this may be the case. Last week the
Associated Press flagged a story in the right-leaning National Catholic Register,
a weekly American newspaper published by the Legionaries of Christ, the
ultra-conservative religious order. In a front-page report, dated 7
September, Archbishop Edwin O’Brien told the Register: “I think anyone
who has engaged in homosexual activity, or has strong homosexual
inclinations, would be best not to apply to a seminary and not to be
accepted into a seminary.”
Archbishop
O’Brien told the paper that even a man who had been celibate for 10
years or more should be barred from entering seminaries. As an aside,
he noted: “The Holy See should be coming out with a document about
this.” Later he told the Associated Press that he expected such a
Vatican directive would appear before the end of the year.
His
blunt comments reveal what many priests have long feared: blame for
that clerical crisis is being placed squarely on the shoulders of
celibate gay men in the priesthood rather than on the bishops who moved
paedophile priests away from the scene of their assaults to new
locations where they struck again, abusing more children. . . ..
Certainly
the vast majority of the reported sexual abuse cases in the United
States were those of men preying on boys and adolescent males. But the
Vatican and many bishops have repeatedly blamed all gay priests
indiscriminately, and, as Archbishop O’Brien’s comments indicate, are
about to declare that even a psychologically healthy gay man who can
live a celibate life will be barred from seminaries.
This
is the worst kind of prejudice, and should be seen as an embarrassment
for the Church, rather than the basis for its selection of candidates
for the sacrament of orders.
If
a Vatican directive barring homosexuals from the priesthood appears, it
will be a disaster for the Catholic Church. First, it would mean
setting aside the example of countless hardworking and faithful gay men
who have served as priests, and who have lived their promises of
celibacy with integrity. Many American Catholics accept their gay
pastors, trusting that they lead celibate lives and valuing their
ministry in their parishes. Others go further in praising the
contribution of gay priests. In an article in the conservative journal First Things,
Father Richard John Neuhaus wrote, “It would seem more than likely
that, in centuries past, some priests who have been canonised as saints
would meet today’s criteria as having a homosexual orientation.”
Second,
such a ban would unjustly place blame for the abuse crisis on all gay
priests, even the celibate ones, not just those few psychologically
sick men who preyed on young boys. It wrongly conflates homosexuality
with paedophilia, which is not only bad science, it is an affront to
gays and lesbians, as well as an indication of just how little the
Vatican seems to understand about human sexuality.
Third,
during a crisis of plummeting vocations, any ban would drastically
diminish the pool of applicants to seminaries and religious orders. And
a number of gay men already in the process of training for the
priesthood – in novitiates and seminaries around the country – have
confided to me that if they were no longer officially permitted to
advance to ordination, they would have to leave. It’s hard not to feel
special sorrow for these men, who, after many years of discernment and
prayer, will be faced with a terrible choice: either lie and be
ordained, or leave and deny your vocation.
The
reduction in the pool of applicants would not result simply from fewer
gay vocations. Some heterosexual men have told me that they would be
less likely to enter a religious order or seminary that evinces such an
attitude to some of their fellow human beings.
Finally,
a document like the one Archbishop O’Brien predicts would in effect say
to gay priests: you should never have been ordained. It would further
demoralise a cohort of priests already burdened by the vilification
they received in the wake of the abuse crisis. . . .
Purging
the seminaries would contradict [an] injunction in the Catechism.
“[Homosexuals] must be accepted with respect, compassion and
sensitivity. Every sign of unjust discrimination in their regard should
be avoided” (2358). It is difficult to see how expelling a celibate man
from a seminary simply because he is gay could be construed as
“respect”. And a clearer example of “unjust discrimination” is hard to
imagine. . . .
Most
gay priests, like myself, have been prevented from speaking about our
own experiences, and sharing with our parishioners our rewarding lives
as celibate men. Most have been formally silenced by bishops or
religious superiors on the topic, so the Church can deny our existence.
(That is the reason for my pseudonym: I would much prefer to write
under my own name.) And many who have not been formally silenced fear
reprisals from their bishops and some parishioners. As a result, the
only public model of the “gay priest” is the notorious paedophile. So
what appears to be the Vatican’s stance is unsurprising. What moral
theologians used to call “invincible ignorance” only breeds prejudice,
fear and hatred.
I
estimate that between 20 and 30 per cent of Catholic priests in the
United States are gay, with the percentages being slightly higher in
religious orders. But since the American bishops have never (and will
never) commission a study, this is an entirely subjective guess.
What
I can say for sure is that the vast majority of these men who I know
and work with are not only compassionate, hardworking and faithful
priests; they are also celibate. And a Vatican declaration that we
should cease to exist would not be the last cross pressed down on us by
the Church that we serve.
Fr Paul Michaels, a pseudonym, is a priest in active ministry in the United States. _______________
The 40th Anniversary of Vatican II and the Declaration on Religious Liberty
Monday, October 17, 2005, 9:00-4:30
Fordham University, McNally Amphitheatre, 140 West 62nd Street
Free and Open to the Public
Sponsored by: The Fordham Center on Religion and Culture
The Curran Center for American Catholic Studies
Institute on Religion, Law, and Lawyer’s Work, Fordham Law School
"Faith & Freedom:
The 40th Anniversary of Vatican II and the
Declaration on Religious Liberty"
Dignitatis humanae, the Declaration on Religious Liberty,
was adopted by Vatican II on December 7, 1965. This landmark event in
Catholic history transformed the church’s teaching on religious
freedom, church and state, and conscience. Scholars, intellectuals,
lawyers, and theologians from the United States and Europe will explore
the background of this historic change as well as examine developments
in the understanding of religious freedom both within faith groups and
in the civil order over the last forty years.
Session 1: A Change of Mind on Religious Freedom- The American and European Contribution
What was the important American contribution (and in particular that
of the Jesuit theologian John Courtney Murray) to the Declaration on
Religious Liberty? How did the American view interact with the
corresponding contributions of the European experience and theological
analysis?
Speakers: The Reverend Joseph Komonchak is John C.
and Gertrude P. Hubbard Professor of Religious Studies at The Catholic
University of America in Washington, D.C. He is an ecclesiologist
specializing in the history and reception of Vatican II.
The Reverend Jean-Yves Calvez, S.J., a philosopher and theologian,
is currently Director of the Department of Public Ethics, Centres
Sèvres, Paris, and teaches at the Institut Catholique. He served as a
member of the Pontifical Council for Non-Believers and the Pontifical
Council for Justice and Peace, and is author of many books dealing with
ecumenism, social development, and the social doctrine of the church.
Session 2: Conscience, Freedom, and Community in the 21st Century
The Declaration on Religious Liberty affirmed traditional
views of the binding power of religious truth while also stressing the
right of conscience to be free of every kind of coercion, including
psychological. What does that mean for the formation and exercise of
conscience? How can religious communities respect individual conscience
while maintaining their own standards of belief, practice, and identity?
Speaker: The Reverend J. Bryan Hehir is the Parker
Gilbert Montgomery Professor of the Practice of Religion and Public
Life at the Kennedy School of Government, Harvard University. He is
also the Secretary for Social Services and the President of Catholic
Charities in the Archdiocese of Boston. His research and writing focus
on ethics and foreign policy and the role of religion in world politics
and in American society. Respondent: Marie Failinger is Professor of Law at
Hamline University School of Law and is editor-in chief of the Journal
of Law and Religion. She has also served on the editorial council of
the Journal of Lutheran Ethics.
Session 3: Faith Traditions and Public Discourse
What is the appropriate place of religion in the public and
political discourse of a society marked by religious diversity and the
separation of church and state?
Panel:
Melissa Rogers is Visiting Professor of Religion and Public Policy,
Wake Forest University Divinity School. She has served as Executive
Director of the Pew Forum on Religion and Public Life, and general
counsel of the Baptist Joint Committee on Public Affairs.
M. Cathleen Kaveny is the John P. Murphy Foundation Professor of Law
at the University of Notre Dame Law School. Her writing and teaching
focuses on the relationship among theology, philosophy, and law. She is
a columnist for Commonweal magazine.
Russell Pearce is Professor of Law and Co-Director of the Louis
Stein Center for Law and Ethics at Fordham University. He teaches,
writes, and lectures in the field of professional responsibility,
including the role of religion in a lawyer's work. He is the co-author
of Religious Lawyering in a Liberal Democracy: A Challenge and an
Invitation, and the author of The Jewish Lawyer's Question.
Asifa Quraishi is Assistant Professor of Law at the University of
Wisconsin, where she teaches course in Islamic law and U.S.
constitutional law. She is the author of “No Altars: An Introduction to
Islamic Family Law in U.S. Courts,” in Islamic Family Law.
Margaret Steinfels, Co-director
Fordham Center on Religion and Culture
113 West 60th Street, Room 224
New York, NY 10023-7484
Phone: 212-636-7624
Fax: 212-636-7863
e: [email protected]
web: www.Fordham.edu/religculture _______________
Is there any book that can rival The King James Bible for its influence on the literature and culture of the West? Even The Catholic Enyclopedia admits that it "remained in undisputed possession for the greater part of three centuries, and became part of the life of the people." A working familiarity with any good translation would seem an essential part of a true liberal education, but for those of us in the English-speaking world, the KJV remains an essential part of cultural literacy.
Up until, say, 100 years ago, biblical literacy would have been practically mandatory. If you didn't know what "the powers that be" originally referred to, or where "the writing on the wall" was first seen, or what was meant by "the patience of Job," "Jacob's ladder" or "the salt of the earth"--if you didn't know what an exodus was or a genesis, a fatted or a golden calf--you would have been excluded from the culture. It might be said that a civilization consists, at its core, of these easily transmitted packages of implication. They are one of the mechanisms by which cultures can be both efficient and rich. You don't have to return to first principles every time you wish to communicate. You can play your present tune on a received instrument, knowing that your listener hears not only your own music but the subtle melodies of those who played it before you. There is a common wisdom in common knowledge. But does this Bible-informed world still exist? I would guess that on the whole, and outside committed Christian groups, biblical literacy is a thing of the past. That long moment of Christian civilization is over. The lingua franca of modern, English-speaking people is not dense with scriptural allusion, just as the conversation of educated people no longer makes reference to classical civilizations. If you dropped the names nowadays of Nestor, Agamemnon or Pericles--every one of which would have come trailing clouds of glory up to a century ago--you would, I think, draw a near total blank from even educated listeners. ...
... if this loss of biblical literacy is not disastrous, it is at least a shame, the fading of an aspect of our civilization that has enriched it. Without the set of archetypes and fount of wisdom in the Bible, our lives would be thinner and poorer. I know my own life would have been immeasurably less if I had never encountered the majestic language of scriptural stories, as told in the King James Version. I think of the Bible as our great joint cathedral, a place where, as Philip Larkin wrote in "Church Going," "someone will forever be surprising / A hunger in himself to be more serious."
As an antidote, Nicolson directs our attention to The Bible and its Influence, a new high school text book, which he describes as:
... exceptionally well-executed introduction to the books of the Bible and the shaping effect that it had on the writers and artists of Western civilization. It is a scholarly, clear and richly illustrated amplification of the stories of the Old and New Testaments. And where else will a high-school student find out that the Eucharist was the inspiration for Beethoven's "Missa Solemnis"? Or that when Hamlet calls Polonius "Jepthah," he is pointing to the willingness of Ophelia's father to sacrifice his daughter for his own advantage? The textbook's intention is to provide precisely the kind of biblical understanding that has drained out of the culture in the past century. ... The Bible Literacy Project, which published the textbook, aims to provide a way for students to read the Bible in public schools without trampling on the rights of religious or secular families.
It's been a long time since I bought a textbook, let alone one intended for use is high school, but I loved Nicolson book God's Secretaries: The Making of the King James Bible, so I'm inclined to take his recommendations on these issues, and I'm sure my own cultural literacy could stand a wash and a brush-up.
This article, in the Chronicle of Higher Education, looks worth a read.
Last year Habermas engaged in a high-profile public dialogue with Cardinal Joseph Ratzinger -- who, on April 19, was named as Pope John Paul II's successor -- at the cardinal's behest. A number of the philosopher's left-wing friends and followers were taken aback by his willingness to have a dialogue with one of Europe's most conservative prelates. In 2002 Habermas had published In Defense of Humanity, an impassioned critique of the risks of biological engineering and human cloning. It was this text in particular, in which the philosopher provided an eloquent defense of the right to a unique human identity -- a right that cloning clearly imperils -- that seems to have piqued the cardinal's curiosity and interest. Yet if one examines the trajectory of Habermas's intellectual development, the Ratzinger exchange seems relatively unexceptional.
Glance back at Habermas's philosophical chef d'oeuvre, the two-volume Theory of Communicative Action (1981), and you'll find that one of his key ideas is the "linguistification of the sacred" (Versprachlichung des Sakrals). By this admittedly cumbersome term, Habermas asserts that modern notions of equality and fairness are secular distillations of time-honored Judeo-Christian precepts. The "contract theory" of politics, from which our modern conception of "government by consent of the governed" derives, would be difficult to conceive apart from the Old Testament covenants. Similarly, our idea of the intrinsic worth of all persons, which underlies human rights, stems directly from the Christian ideal of the equality of all men and women in the eyes of God. Were these invaluable religious sources of morality and justice to atrophy entirely, it is doubtful whether modern societies would be able to sustain this ideal on their own.
In a recent interview Habermas aptly summarized those insights: "For the normative self-understanding of modernity, Christianity has functioned as more than just a precursor or a catalyst. Universalistic egalitarianism, from which sprang the ideals of freedom and a collective life in solidarity, the autonomous conduct of life and emancipation, the individual morality of conscience, human rights, and democracy, is the direct legacy of the Judaic ethic of justice and the Christian ethic of love." . . .
One of Habermas's mentors, the Frankfurt School philosopher Max Horkheimer, once observed that "to salvage an unconditional meaning" -- one that stood out as an unqualified Good -- "without God is a futile undertaking." As a stalwart of the Enlightenment, Habermas himself would be unlikely to go that far. But he might consider Horkheimer's adage a timely reminder of the risks and temptations of all-embracing secularism. Habermas stressed in a recent public lecture "the force of religious traditions to articulate moral intuitions with regard to communal forms of a dignified human life." As forceful and persuasive as our secular philosophical precepts might be -- the idea of human rights, for example -- from time to time they benefit from renewed contact with the nimbus of their sacral origins. [RG: The "idea of human rights" is a "secular philosophical precept" that might "benefit from renewed contact with the nimbus of their sacral origins"? Michael Perry: Is this a bit of an understatement?] . . .
Last April Habermas presented a more systematic perspective on religion's role in contemporary society at an international conference on "Philosophy and Religion" at Poland's Lodz University. One of the novelties of Habermas's Lodz presentation, "Religion in the Public Sphere," was the commendable idea that "toleration" -- the bedrock of modern democratic culture -- is always a two-way street. Not only must believers tolerate others' beliefs, including the credos and convictions of nonbelievers; it falls due to disbelieving secularists, similarly, to appreciate the convictions of religiously motivated fellow citizens. From the standpoint of Habermas's "theory of communicative action," this stipulation suggests that we assume the standpoint of the other. It would be unrealistic and prejudicial to expect that religiously oriented citizens wholly abandon their most deeply held convictions upon entering the public sphere where, as a rule and justifiably, secular reasoning has become our default discursive mode. If we think back, for instance, to the religious idealism that infused the civil-rights movement of the 1950s and 1960s, we find an admirable example of the way in which a biblical sense of justice can be fruitfully brought to bear on contemporary social problems.
The philosopher who addressed these issues most directly and fruitfully in recent years was John Rawls. In a spirit of collegial solidarity, Habermas, in his Lodz paper, made ample allusion to Rawlsian ideals. Perhaps Rawls's most important gloss on religion's role in modern politics is his caveat or "proviso" that, to gain a reasonable chance of public acceptance, religious reasons must ultimately be capable of being translated into secular forms of argumentation. In the case of public officials -- politicians and the judiciary, for example -- Rawls raises the secular bar still higher. He believes that, in their political language, there is little room for an open and direct appeal to nonsecular reasons, which, in light of the manifest diversity of religious beliefs, would prove extremely divisive. As Habermas affirms, echoing Rawls: "This stringent demand can only be laid at the door of politicians, who within state institutions are subject to the obligation to remain neutral in the face of competing worldviews." But if that stringent demand is on the politician, Habermas argues, "every citizen must know that only secular reasons count beyond the institutional threshold that divides the informal public sphere from parliaments, courts, ministries, and administrations."
With his broad-minded acknowledgment of religion's special niche in the spectrum of public political debate, Habermas has made an indispensable stride toward defining an ethos of multicultural tolerance. Without such a perspective, prospects for equitable global democracy would seem exceedingly dim. The criterion for religious belief systems that wish to have their moral recommendations felt and acknowledged is the capacity to take the standpoint of the other. Only those religions that retain the capacity to bracket or suspend the temptations of theological narcissism -- the conviction that my religion alone provides the path to salvation -- are suitable players in our rapidly changing, post-secular moral and political universe.
Too bad. It sounds like, at the end of the day, the developments in Habermas's though about religion have brought him only to the tired Rawlsian demand that religion translate itself, and remake itself, before it is admissible in public life. The author imposes a "criterion" for "religious belief systems" that hope to be "suitable players" in our new "universe". To which we might respond, following Arthur Leff, "sez who?"
As a follow up to Rick's post on the fortieth anniversary of Nostra Aetate, the Pontifical Gregorian University will host a four day symopsium offering reflections on the Conciliar document. Presenters will speak from Catholic, other Christian, Jewish, Muslim, and other perspectives. The link to the eighteen page detailed program is here . RJA sj
After some reflection, and with Tom's help, I have decided that I was not quite fair to David O'Brien's Commonweal essay, "The Church, Judge Roberts, and the Common Good." In my original post, I wrote (among other things):
it is not the case that it conflicts with "important elements of Catholic social teaching" to believe that, the Constitution -- a legal document -- really means something that, let's concede for now, might make achieving certain Catholic-supported policy goals more difficult. If it is a fact -- and, I think it is -- that the Constitution does not give Congress a general police power or general regulatory authority, then it is hard for me to see how this "fact" could conflict with "Catholic social teaching," any more than could the "fact" that, say, edible and nutritious grains don't grow everywhere.
Now, to be precise, here is the statement in O'Brien's piece to which I was responding:
Will a Chief Justice Roberts join “originalist” justices such as Clarence Thomas, committed to eighteenth-century ideas about government and liberty? Some early reports associated Roberts with the Federalist Society and its hankering to return to pre-New Deal restrictions on federal powers. That position is at odds with important elements of Catholic social teaching.
On reflection -- and giving him the benefit of the doubt -- I think that O'Brien could be arguing that the "position" which is "at odds with important elements of Catholic social teaching" is the "hankering to return to pre-New Deal restrictions on federal power", i.e., the desire to impose new restrictions on existing federal power, the effect of which would, the argument goes, invalidate important social-welfare legislation.
Of course, Judge Roberts has no such "hankering." To think that Congress lacks plenary regulatory power, and that Article I of the Constitution is judicially enforceable, is not to commit oneself to undoing the New Deal. In any event, I think that O'Brien is wrong that "pre-New Deal restrictions on federal power" -- by which some might mean, "the structural arrangements actually designed by the framers and endorsed by the ratifiers" -- are "at odds with important elements of Catholic social teaching." As I said in my original post, I do not think that these structural arrangements, in themselves, could plausibly be said to "conflict" with anything in Catholic teaching or thinking. (Quite the contrary, in fact).
This does not mean -- as Tom's post reminds me -- that (a) a judge enforcing the founders' design would not feel any "moral conflict" about invalidating a well-meaning federal law, particularly if the judge believed that local authorities were not responding justly to pressing problems; or that (b) a state of affairs under this design -- say, a state of affairs in which state governments were permitting abortion on demand but the federal government was powerless to intervene to protect unborn children -- would be immune from moral criticism.
[S]uppose a justice in 1966 conscientiously concluded that under proper interpretation of the Commerce Clause, he would have to vote to strike down the Civil RIghts Act's prohibitions on discrimination in employment, restauraunt service, and lodging accommodations (on the ground, correct or not, that the Act was a police-power rather than a commercial regulation). Suppose the justice further concluded, in good faith (and I'd say reasonably) that blocking Congress from prohibiting discrimination would leave African-Americans in southern states subject to serious oppression and deprivation of basic human goods such as decent work and the ability to move with some freedom, and that the state and local governments would do nothing to correct the injustice (in fact, would support the discrimination vigorously). Shouldn't the justice in this situation feel a serious moral conflict?
In my view, Catholic moral teaching need not be understood as requiring the justice to avoid this effect by, in effect, exercising power he or she lacks, or validating others' exercise of power that they lack. And, in my view -- again -- the fact about our Constitution that Congress lacks a police power, standingalone, is not one that is, or even can be "at odds with important elements of Catholic social teaching.
A reminder to all those in or near (or even not near!) lovely "Michiana" that Notre Dame's Center for Ethics and Culture is hosting its annual Fall conference next week, from Sept. 29 through Oct. 1. The conference, "Joy in the Truth," will "bring together a large number of respected scholars representing all the main academic fields, from Catholic, non-Catholic, and secular institutions, to discuss a broad range of issues relating to the way in which the Catholic university as a whole, as well as the particular disciplines which comprise it, can best respond to Pope John Paul II's call for a renewal of Catholic institutions of higher learning."
Here is the conference line-up. A number of papers and panels caught my eye, including this one, "Finding Joy in the Truth of Creaturehood," by my friend and neighbor Harold Ernst, a theologian. (I offered some thoughts about the implications of our "creaturehood" for our thinking about capital punishment here). Villanova's Jeanne Heffernan is presenting a paper, "Catholic Tradition and the Claims of Modern Democracy." (Prof. Heffernan was a commenter at the recent John Courtney Murray conference, held at Villanova, and her remarks were, I thought, extremely thoughtful and insightful).
I am "chairing" a panel, called "The Catholic Law School," which will include papers by fellow Catholic blogger Prof. Kevin Lee, and MOJ-alum John Breen. Breen will be presenting a paper, "A Critical Look at Jesuit Legal Education", that has been discussed here before. Another MOJ-alum, Paolo Carozza, will be leading what looks to be a wonderful discussion on Fr. Luigi Guissani's book, "The Risk of Education." And, the lovely-and-talented Professor Nicole Garnett -- along with my colleague Prof. Amy Barrett, will participate in a panel discussion, "Women, Families, and the Catholic University." And on and on . . .
Check out this post by Prof. Christine Hurt, at Conglomerate: "Pope Benedict XVI has been named in a lawsuit alleging conspiracy to cover up sexual molestation. The act in question is a 2001 letter referencing a 1962 policy guideline for addressing sexual molestation complaints. Judge Rosenthal will have to determine whether the Pope is a head of a church or the head of a state for immunity purposes." (More here).
We've had discussions before concerning Rumsfeld v. FAIR, the Supreme Court case on whether law schools have a constitutional rigt of expressive association to refuse to allow military recruiters (because of the military's ban on gays) without being denied federal funding. Our discussions (for example, here, here, here, here, here, and here) have mostly concerned the relation between the issues in this case and important matters of subsidiarity. Georgetown Law School has collected Supreme Court briefs and other filings in the case here. Briefs of the government (petitioner) and its supporting amici have all been filed, and briefs of the law-school consortium (appellee) and its supporting amici are just appearing. Oral argument is set for December 6.
I've previously asserted that the Court should recognize a distinction between the rights of private law schools and the (much lesser) rights of state law schools. The theory is that while private entities are classic mediating institutions and enjoy constitutional rights of association, state entities are generally the targets of constitutional limitations rather than the beneficiaries, and because of their favored status in receiving compulsory-tax-supported funding, they are not classic mediating institutions either. That constitutional distinction is argued in the amicus brief of the Christian Legal Society and Alliance Defense Fund (supporting neither party in the case, since FAIR includes both private and state law schools). (I participated in a few discussions concerning the content of the brief but played no role in writing it.)
