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, September 22, 2005

Response to Rick: Federalism and Moral Conflict

By Thomas Berg

I appreciate RIck's thoughtful response to my question about whether the enforcement of federalism limits can ever create a serious moral conflict for a justice/judge.  Rick makes clear that his suggestion "was not that positive law involves, always and in every context, such fact-ness that judges' decisions and obligations are beyond the reach of Catholic moral teaching."  His argument is

only that, whatever Catholic teaching might be about, say, the best way to approach certain problems, the fact that Congress lacks the power to address or resolve every such problem is not, itself, something that really can conflict with Catholic social teaching.

I appreciate this, and I think that this is certainly right as a general matter.  But what is it about federalism limits on congressional power that insulate them from any real moral conflict?  Perhaps the implied answer is that some other level of government -- state and local, for example, is empowered to deal with the problem or injustice.  But what if that level of government completely fails to deal with a serious injustice?  To pick a not-too-remote example, suppose 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?  Or is it enough to say that the justice isn't stopping the states and localities from acting (even though he knows they won't do so)?

Tom B.

Nostra Aetate anniversary

By Rick Garnett

The Los Angeles Times reports here on the approaching 40th anniversary of Nostra Aetate, and on various events commemorating that important document.  Notre Dame's Rabbi Michael Signer is participating in one such event in Los Angeles.

Home as a Legal Concept

By Rob Vischer

Widener law prof Benjamin Barros has posted his paper, Home as a Legal Concept, on SSRN.  Here is the abstract:

This article, which is the first comprehensive discussion of the American legal concept of home, makes two major contributions. First, the article systematically examines how homes are treated more favorably than other types of property in a wide range of legal contexts, including criminal law and procedure, torts, privacy, landlord-tenant, debtor-creditor, family law, and income taxation. Second, the article considers the normative issue of whether this favorable treatment is justified. The article draws from material on the psychological concept of home and the cultural history of home throughout this analysis, providing insight into the interests at stake in various legal issues involving the home.

The article concludes that homes are different from other types of property and give rise to legal interests deserving of special legal protection, but that these interests can be outweighed by competing interests in particular legal contexts. The result is that in many contexts special legal treatment of homes is justified. In other contexts, for example residential rent control, the strength of competing interests means that the law overprotects the home. In still other contexts, for example eminent domain law as embodied by the Supreme Court's recent decision in Kelo v. New London, the law tends to underprotect the home.

(HT: Solum)

Rob

Toward a Catholic Legal Theory of . . . Pets

By Rob Vischer

The next time someone asks you whether current legislative priorities at the federal level comport with the principle of subsidiarity, tell them no, and offer this example.

Rob

The New Tort: Insemination Discrimination

By Rob Vischer

I'm just as opposed to invidious discrimination as the next equality-loving fellow, but it seems a bit heavy-handed to suggest that any refusal by a physician to artificially inseminate an individual based on her marital status is unlawful, regardless of the religious convictions underlying the refusal.  Apparently, that may be the case in California.  The story of the litigation is here.  (It's pitched as a gay rights case, but it is just as easily classified as an issue of marital status.)  As the plaintiff's attorney remarked, “People have a right to choose to start families, and providers who offer these services to the public don’t get to pick and choose who can be a family.”  So much for the moral marketplace.  (Hat Tip: Open Book)

Rob

Ban on Gay Priests Approved (?)

By Rob Vischer

The New York Times is reporting that the Church's rule prohibiting homosexuals from becoming priests will probably be published within the next six weeks, and that, according to an unidentified church official with "authoritative" knowledge of the rule, the question is not "if it will be published, but when":

[T]he church official who discussed the expected new rules said the document called for barring even celibate men who considered themselves homosexual because of what he contended were the specific temptations of seminaries.

"The difference is in the special atmosphere of the seminary," he said. "In the seminary, you are surrounded by males, not females."

Rob

Wednesday, September 21, 2005

Millennium Development and the UN

By Robert John Araujo, SJ

I would like to echo most of Susan's post from earlier in the day, and I would like to call attention to Cardinal Sodano's intervention made on the same day as the Murray Symposium at Villanova, last Friday, September 16. Most of the Cardinal's address stressed the importance of the global community, through the UN, to pull together and provide relief to the hundreds of millions of people in the world who wonder what having a dollar a day to buy necessities of life would be like. Mosquito netting, clean water, and basic health care would be a wise investment in ensuring their survival and promoting the common good without upsetting the principle of subsidarity. You will note, however, that the Cardinal ended his intervention with a passing comment about "reproductive health", and he asked the rhetorical question why this term has become the consuming effort of of many delegates when the real issue of basic health is ignored. Under the guise of "human rights," the harsh reality of population control and the campaign for denying basic necessities of human life are hard at work. It strikes me that a core of Catholic Legal Theory on these points would sooner or later take into account the exhortation of St. Matthew's Gospel, Chapter 25: whatsoever you do to the least of my family, you do to me.   RJA sj

Conscience in Context

By Rob Vischer

I have just posted (under my name in the righthand sidebar) my new paper, Conscience in Context: Pharmacist Rights and the Eroding Moral Marketplace, forthcoming from the Stanford Law & Policy Review.  Here is the abstract:

Our society has long esteemed the sanctity of conscience, and our legal system has reflected that esteem, effectively shielding the individual from state encroachment, especially in matters of religion.  A rapidly expanding range of disputes, however, is not readily settled under the individual-versus-state paradigm; rather, the new battle lines are forming between consumer and provider, with both driven to live out the dictates of conscience in the marketplace.  The legal community has been slow to adjust to this trend, presuming reflexively that resolutions are best reached by harnessing state power to defend some conception of individual conscience, as exemplified by pharmacists’ well-publicized entry onto the center stage of our nation’s ongoing culture war drama.  One side invokes conscience to justify legislation that would empower pharmacists to refuse to fill prescriptions on moral grounds without the possibility of negative consequences; the other side invokes conscience on behalf of the consumer to justify legislation that would require all pharmacies to fill all valid prescriptions.  Congress and the dozens of state legislatures to take up the issue have embraced the winner-take-all terms in which the combatants have framed the contest. 

This article asks us to step back from these two-dimensional terms of engagement and to contextualize the public relevance of conscience by outlining the contours of a marketplace where moral claims can operate and compete without invoking the trump of state power.  Instead of making all pharmacies morally fungible via state edict, the market allows individual consciences to thrive through overlapping webs of morality-driven associations and allegiances, even while diametrically opposed consciences similarly thrive.  The zero-sum contest over the reins of state power is replaced by a reinvigorated civil society, allowing the commercial sphere to reflect our moral pluralism.

Rob

"Discrimination" by religious student groups at ASU

By Rick Garnett

We've turned, several times (here, here, here), to the case at Arizona State University involving the tension between the Christian Legal Society's membership criteria and the University's non-discrimination policies.  It appears, from this story, that the case has settled:   

Religious student groups at Arizona State University can discriminate against those who don't share their religious beliefs, according to the settlement of a lawsuit against the school by a Christian legal organization.

But the settlement says religious organizations at the university cannot exclude students from membership on the basis of sexual orientation.

Rick

Communion and Liberation statement on Katrina and inequality

By Rick Garnett

MOJ-friend Paolo Carozza (Notre Dame) has passed along this statement, by Communion and Liberation, on Hurrican Katrina:

THE INFINITE PRESENT IN AMERICA’S SUFFERING Many commentators have pointed out how the New Orleans tragedy brings to light unresolved American social problems. The impact of the tragedy is being dissolved by those who reduce everything to a question of politics and only worry about finding “the guilty.” Without reaching the level of absurdity of those who speak of divine retribution, in their own way, they end up saying that America “was asking for it”. They automatically attribute what happened to global warming (because of the US refusal to sign the Kyoto Protocol), to the Iraq war (which emptied America’s military resources), or to indifference toward neighborhoods populated predominantly by African Americans. These rabid accusations betoken an inability or a refusal to look into the depth of what is human.

On the other hand, there are Pope Benedict XVI’s calm and simple words that go directly to the heart of what happened. “In these days, we are all saddened by the disaster provoked by a hurricane in the United States of America, particularly in New Orleans. I would like to assure you of my prayers for the deceased and their families, for the wounded and the homeless, for the sick, the children and the elderly; I bestow a blessing on those who are engaged in the difficult work of aid and rebuilding. I have given the President of the Pontifical Council Cor Unum, Archbishop Paul Josef Cordes, the task of bringing to the afflicted populations the witness of my solidarity.”

In front of death, in a person who—without forgetting social concerns—first of all bears in mind the human condition, the first sentiment to well up is sorrow. When man is truly himself and perceives his religious sense without becoming ideological, he discovers his original dependence, his not being omnipotent, his being at the mercy of natural catastrophes, diseases, mistakes and the evil which he himself can commit, as the lootings and violence following the hurricane show.

It’s exactly this perception of his limit that makes man aware of a need for liberation that is beyond the means of any exclusively human project. For this reason, it is not unreasonable that our tradition springs from the announcement of Someone who—as the Pope’s words demonstrate—does not try to explain evil or find the guilty, but prays and invokes the Father to defeat this evil and give hope anew. So, not a single one of the dead in this tragedy is lost, since the sorrow of those who remain can have a meaning, if it is lived with human dignity and faith. Indeed, if sorrow is lived this way, it can even become the starting point of social change. This kind of change has already happened by means of those who founded America with a desire for freedom that, throughout all its history, has never been dormant or cancelled, even by many mistakes. It has also happened by means of African Americans, who in their spirituals sang of the Infinite present and, thus, laid the foundations for a more just society.

In front of this tragedy, to once again announce Christian hope and love for every man—whatever be the color of his skin and his social status—means to nurture a desire for true solidarity, for sincere charity, for a will to rebuild with more social justice and intelligence. This is what gives value to the American quest for freedom, bringing it to fulfillment.

COMMUNION AND LIBERATION

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