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.

Wednesday, August 10, 2005

Old England and New England

By Robert John Araujo, SJ

Thanks to Rick for his posting on the Roberts and Religion issue addressed by Christopher Morris’s essay in yesterday’s Boston Globe.

Today’s Globe carries another interesting Editorial HERE about State Senator Marian Walsh’s proposed legislation that would subject religious organizations to financial disclosure requirements. This editorial replicates an earlier one published by the Globe in October of 2004 on the same subject. Today’s editorial also follows an article in the Globe by Frank Phillip entitled "Bill Would Force Church to Disclose Its Finances—Attitude Shifts on Beacon Hill." This article is a rich source of commentary on a variety of other issues involving the Boston Archdiocese, but these go beyond the scope of the Senator’s bill. However, I did find the use of the singular (Church) in the title to be intriguing.

Since I have limited computer time this month whilst I am away from Rome, I have not yet been able to find the text of Senator Walsh’s bill online. Consequently, my remarks may be incomplete. However, I would like to offer a few preliminary comments until such time as I can review the text of the Walsh proposal.

It should be clear that no one is insulated from liability for financial wrongdoings. Clerics, religious, and laity have misappropriated funds belonging to the religious institutions, and they have been held accountable for these misdeeds. In the case of the Catholic Church, there is access to two systems of accountability—one canonical, the other secular—for reviewing these misdeeds. But it is unclear to me why the civil legislation proposed by Senator Walsh and endorsed by the Globe is required to address the legitimate concerns that any other Catholic might have about the Church’s finances and property. Senator Walsh or any other member of the faithful could go to the parish financial council or appropriate diocesan office to get the information that the bill seemingly would require churches to file with civil authorities. Has she done this? This the Globe does not say.

Mr. Phillips reports that Senator "Walsh’s leadership on the issue is rooted in strong anger." The source of her anger is not identified in the article. I might share the Senator’s concerns if she asked appropriate church officials, clerical and lay, for information on revenues and expenditures and property but was rebuffed. But I wonder if the inquiry were made? The Globe does not say. If this avenue were not pursued, then I would suggest that the anger is premature and unwarranted.

The Globe editorial also comments on the many privileges churches seem to have including exemptions from property and sales taxes and the special mailing rates that are available to many institutions including political organizations. In a display of what appears to be an argument from "reasonableness," the Globe posits that being subjected to the disclosure requirements is "a small price" to pay in return for these "privileges."

But is it a small price? And is it reasonable?

It may be that this legislation is really directed at something else. Again, since I have not read the proposal, I must be careful in what I say. But at this stage I happen to recall certain precedents from Old England in the early Sixteenth Century that could have some bearing on the New England of today. There was a civil ruler in Old England who did not care for the Church’s position regarding a certain divorce. The civil leader put pressure on religious leaders and religious houses in order to obtain a more agreeable response. When they consented, the pressure was released; when they did not, the pressure was increased. One might recall the scene from the film adaptation of Bolt’s play presenting the conversation between Wolsey (Orson Welles) and More (Paul Scofield) on this topic.

Pressure was then used by the civil authorities on the Church and its officials and members for questionable objectives. Is what is going on in Boston today a repetition? In Old England it was the matter of a divorce. But today the matter generating tension between the Church and civil officials may be about abortion, embryonic stem cell research, or the meaning of family, just to mention a few areas of disagreement on contemporary issues between the Church and some civil authorities. Is the situation in New England of today like that of the Old England of Thomas More, Cardinal Wolsey, and King Henry? And is the use of pressure by civil authorities once again being contemplated for questionable purposes? Religious liberty was in harms way five hundred years ago. Is there reason to suspect that history may be repeating itself? It may well if its lessons have been forgotten. RJA sj

Human Endowment Taxation

By Rob Vischer

Michigan law prof David Hasen has an intriguing new article, "The Illiberality of Human Endowment Taxation."  Right now, only the abstract appears to be available:

Recent tax scholarship has embraced the idea of human endowment taxation, or taxation of human capabilities, as an approach to ideal tax theory. Under endowment taxation, individuals are taxed according to their native ability to command resources, rather than according to any actual index of goods or expenditures, such as income, consumption or wealth, that might otherwise be thought relevant to imposing tax burdens. This article argues that endowment taxation is generally incompatible with political theories that might broadly be described as "liberal," whether or not these theories are thought to authorize redistribution. The article also suggests that under a wide array of assumptions, lump-sum taxes such as endowment taxes are not optimally efficient and that, even where they represent the most efficient available alternative, lump-sum taxes generate undesirable costs.

I know nothing about tax law (I've even forgotten anything I learned about it in law school), but endowment taxation seems fairly provocative from the standpoint of Catholic legal theory.  The Church instructs that, "In the redistribution of resources, public spending must observe the principles of solidarity, equality, and making use of talents." (Compend. of Soc. Doctrine 355)  I'm not sure that "making use of talents" means that the state should ascribe a taxable value to those innate talents regardless of an individual's initiative, but I'd welcome the input of someone who has followed this debate in the literature.

(HT: Solum)

Rob

UPDATE: William & Mary tax law prof Eric Chason offers this helpful explanation:

The idea is that everyone is taxed according to their ability to earn income, rather than their actual income. Taxing actual income distorts the decisions one makes about work versus leisure. Knowing that the government takes a cut from the returns on your work efforts makes you less likely to work. Contrast this with a poll tax, where everyone pays the same amount. The poll tax does not distort your work decision, because you keep everything from your work efforts. But most people think that a poll tax is intolerable because of the burdens it would place on the poor.  An endowment tax is essentially a progressive poll tax. The amount you pay is calibrated to the amount you could earn--whether or not you could actually earn it.

"Extraordinary Rendition"

By Susan Stabile

Re Rob's reference to the Lederman post on "extraordinary rendition," see the article in this morning's NY Times linked here regarding the government's defense of its practices.  The article concerns a lawsuit brought by a naturalized Canadian citizen who charged that he was "plucked" from Kennedy airport while on the way home to Canada, and after being held in a Brooklyn detenion center (during which he was deprived of food, sleep and access to either his family, a lawyer or the Cahadian consul), shipped to Syria to be interrogated under torture.  This appears to be the first suit challenging the practice of transfering suspects to countries known for torture.  I'll let readers  follow the link to read the government's position; it is not uplifting.

Susan

Rendition, Torture, and Culpable Cooperation with Wrong

By Rick Garnett

Marty Lederman has a detailed post at Balkinization on several of the legal questions surrounding the issue of "extraordinary rendition."

Rick

Tuesday, August 9, 2005

More confusion on Roberts and Religion

By Rick Garnett

Thanks to Greg Kalscheur for passing on a link to this op-ed, "Stopping a judicial conflict of interest," by Christopher Morris, in today's Boston Globe.  One word:  Argh.

Well, not just one word.  Morris's piece is yet another example of (a) a failure to even acknowledge the distinction between a judge's decision on the meaning and validity of a law and a legislator's decision to promote and pass a law; and, relatedly, (b) the already-tiresome effort to suggest that the Catholic Bishops are somehow required to excommunicate (or threaten to excommunicate) John Roberts if he does not vote to overturn Roe v. Wade.  Morris writes:

IN THE presidential campaign, a new threshold in church-state relations was crossed when Catholic bishops threatened to exclude Senator John Kerry from the Eucharist because of his support for Roe v. Wade. The Senate Judiciary Committee is now fully justified in asking these bishops whether the same threats would apply to Supreme Court nominee Judge Roberts, if he were to vote to uphold Roe v. Wade.

The bishops have made this question legitimate because Americans no longer know whether a Catholic judge can hear abortion cases without an automatic conflict of interest.
Well, they can know, if they get their information about the matter from a source other than Mr. Morris.  Then there's this:

Of course, such a new law should cover anyone whose religion makes it impossible for them to decide on their own whether abortion should be legal; therefore, testimony should be taken from the leaders of Protestant, Jewish, Muslim, and other faiths as well. It is clear that several mainline Protestant denominations separate the issue of abortion from church membership and personal salvation; judges from these faiths would face no conflict of interest.

Even evangelical Protestants do not oppose abortion at the risk of being separated from a particular church, because their faiths are based on being ''born again," not on adherence to certain articles of faith or a catechism. In theory, the same Holy Spirit that made evangelicals born again could also move them to change a social or political view at any time. (In drafting mandatory recusal legislation, senators should probe the foundations of these beliefs and persuade themselves that evangelicals retained a meaningful, not just a technical, choice.) Inquiry into Judaism, Islam, and other religions should also focus on whether any of them make threats against members who hold particular views about abortion.

What is Morris talking about?  Why would an editor at the Boston Globe even entertain the thought that this op-ed contained an argument worthy of such an eminent newspaper?  A final word:  Sigh.

Rick

Pharmacists, Conscience, and Civil Society

By Rob Vischer

Thanks to Rick for drawing my attention to a post by Elizabeth Anderson over at Left2Right regarding the controversy over pharmacists and conscience.  It's a very thoughtful analysis, but Anderson leaves scant space for the operation of subsidiarity.  Here's an excerpt:

Imagine that you lived in a place where you had to ask someone else's permission to leave your property.  Even if the other person always gave permission, you wouldn't be free.  You'd be under conditional house arrest, with the other person your discretionary jailor.  The case wouldn't be much better if you had a choice of 5 people to ask, any one of whose permission would let you leave your property.  Then those 5 would be your joint jailors.  You'd have somewhat wider opportunities, assuming their decisions were not coordinated.  But you'd still be dominated by them. . . .

[T]he "tender religious conscience" against filling birth control prescriptions is inseparable from a religious world-view that regards women as properly confined to a mothering caste (with their sexuality limited to reproductive purposes).  The Christian pharmacist who refuses to fill birth control prescriptions differs only in degree and not in kind from the Talibanesque taxi driver who refuses to serve women who are unaccompanied by their male relatives.

The potential availability of competing pharmacists who assert no conscience exemptions is no argument in favor of allowing them in some cases.  For there may be no such providers. . . . Even if there are some in the same county, this is like the person who has five independent jailors rather than just one.  If women in many towns and counties are not to be turned into a subordinate, unfree caste, limited to the opportunity package [motherhood, celibacy] by the dominion of others, then pharmacists must not have a right to deny them access to birth control.  The freedom to use one's pharmacy as an instrument for promoting one's religious beliefs is nothing compared to the freedom of escape from subordinate caste status-- and even to the freedom of being branded with the badges of subordinate caste status (in the case where women have other easily accessible pharmacies willing to serve them, but still may be snubbed by this or that pharmacist).

Let's put to the side Anderson's assertion that objections to the morning-after pill necessarily flow from a desire to confine women to "a mothering caste."  I'm more interested in the status of civil society under her analysis.  Essentially, she seems to be granting a trump to consumers when it comes to the provision of morally objectionable but publicly vital goods and services.  I agree that calls for conscience clauses by pharmacists are misplaced and are themselves harmful to civil society, as the elevation of individual rights erodes the space in which unique associational identities can be fostered -- i.e., the pharmacist can trump the pharmacy.  I also agree that, when a certain pharmaceutical is not available within a reasonably defined geographic area, the state is justified in mandating that drug's provision as a condition of licensing.  But in most areas, this will not be an issue.  Where there is no discernible access problem, the state should step back and let the market operate.

The common inclination when we're dealing with unresolvable moral controversies is to invoke state power to end the debate on behalf of one side or the other.  This tendency leads to alienation and isolation, short-circuiting any opportunity for contesting values to co-exist in the marketplace and reducing fundamental debates regarding the good to simplistic terms of individual rights and state action.  In allowing all sides in the pharmacist controversy to live out their convictions in the market, the state can maintain a forum in which pharmacies craft their own particular conscience policies in response to the demands of employees and customers.  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. 

To be clear, I support the Civil Rights Act of 1964, which was a prudent means to securing full participation by racial minorities in the economic life of society.  A similar argument could be made by women in the pharmacy context, but only if they face no reasonable means of securing birth control in their community; if that is the case, then I favor state action.  But actions like those by Illinois Governor Blagojevich, in which he ordered all pharmacies serving the public to carry all contraceptives based on two reported customer denials in downtown Chicago (where the customers could have filled their prescriptions by walking several hundred feet) unnecessarily shuts down any space for divergent practices on a hotly contested moral issue.  It is one thing for a pharmacy to wither in the marketplace due to its unpopular stance on the provision of contraceptives; it's quite another for the state to foreclose the pharmacy from that stance in the first place.

Rob

Judging Faith

By Steve Bainbridge

My latest TCS column pulls together some thoughts on SCOTUS nominee John Roberts' Catholicism.

Monday, August 8, 2005

Pharmacists, Property, Common Carriers, and Freedom

By Rick Garnett

Here, at the "Left2Right" blog, is a very long, detailed, and careful post by Professor Elizabeth Anderson that, among other things, explores the implications for the "pharmacists with religious objections to dispensing certain drugs" debate of this claims:  "In a free society, it is impossible for private individuals to avoid supporting the freedom of others to do things of which they disapprove."

Here is the conclusion:

There are some public accommodations of such vital interest to each person that each has a compelling liberty interest in unfettered access to it, without being subject to the arbitrary decisions of those who operate them.  The right to operate a public accommodation is not the right to inflict one's religious beliefs on others.  The pharmacist's license is a license to practice pharmacy for others, not a license to practice one's religion on others.  The state, in the name of freedom, properly enforces a common carrier rule in such cases.

I link; you decide.  Check it out.

Rick

Roberts and "Constitutional Faith" in the Globe

By Rick Garnett

Legal scholar Professor Sandy Levinson's book, "Constitutional Faith," was the theme of an opinion essay in the Boston Globe today.  (I'm looking forward to seeing if the book moves up in the Amazon rankings as a result!).  According to the writer:

Levinson, in an argument first made in his 1988 book ''Constitutional Faith," argues that disputes over how to interpret the Constitution descend from the original schism of the Reformation. ''Anyone seeking to examine the operation of the Constitution within the American polity," he writes, ''must come to terms with the implication and traces left over from the Reformation era."

The constitutional schism, as he sees it, runs along two different axes. The first is methodological, and concerns the source of doctrine. For ''protestant" jurists--originalists like Scalia and Clarence Thomas (both, ironically, devout Catholics)--that source is the constitutional text alone. For their constitutionally ''catholic" colleagues, however, the text is augmented by ''tradition," even unwritten tradition. These are the ''living constitutionalists" (in the words of former Justice William Brennan), justices like Ruth Bader Ginsburg and Stephen Breyer, who are willing to believe the Constitution has something to say about issues like abortion and gay marriage that the Founders never thought to mention in the document itself.

The second axis concerns who has ultimate authority to interpret the Constitution. And here the Catholic position takes on a more conservative tint. As Levinson points out, the Reformation wasn't just a dispute over how much to interpret the Bible, but over who gets to interpret it. For Luther and his followers it was the individual worshipper, not the Church hierarchy, who was best qualified for the task.

And, by way of background, the writer points out that:

These days, when Republican senator Sam Brownback of Kansas can convert from conservative Methodism to conservative Catholicism without any appreciable effect on his public profile, it's perhaps easy to forget that there are, in fact, fundamental differences that separate the Catholic and Protestant traditions. At root, they are disputes over interpretation of Scripture and the authority of the Bible.  [RG:  As I mention below, it seems to me that they are just as much "disputes over" the nature, mission, and authority of the Church].

''The notion of Biblical inerrancy, of Biblical literalism, is really un-Catholic," says Alan Wolfe, a political scientist and scholar of religion at Boston College. ''The whole point of having a priesthood and a magisterium [the Latin term for the Church's teaching authority] is to say that the Bible, while a supreme guide, is constantly to be reinterpreted. That's why you have the Church." For Catholics, in other words, coequal with the Bible itself is ''tradition," the accretion of interpretation and elaboration that the Church builds onto Scripture.

It's been a few years since I read Levinson's book.  It struck me, I remember, as intriguing and interesting, but maybe a bit forced.  Certainly, there's something to the points that (a) constitutional law involves an authoritative text and an interpretive tradition, (b) there is a debate about the authority of the tradition's "take" on the text, and (c) over the years, the disagreements between Protestants and Catholics have also touched upon, if not stemmed from, similar arguments about the authority of, and connection between, text and tradition.

It's fine, I suppose, to lift the labels, "Catholic" and "Protestant" from the religious and theological contexts, and then re-attach them to the (apparently) similar "sides" of the debate in constitutional law.  The mistake, though -- it seems to me -- is in thinking that there is anything really "Catholic" about reading the Constitution in the way that Professor Levinson labels "Catholic" (same with "Protestant").  I'm not a theologian, of course, but it strikes me that the "Catholic" position in the text-and-tradition argument in the theological arena has a lot to do with the Catholic Church's (and the Protestants') ecclesiological claims.  The editorial writer suggests -- and I think he might go beyond Professor Levinson here -- that a "textualist" or "literalist" approach to constitutional law (the "Protestant" approach) is somehow inconsistent with a judge's Catholic faith.  But there's no reason for a Catholic judge -- who endorses entirely the "Catholic" take on text, interpretation, development, etc., -- to think that a written Constitution, ratified and amended through (pretty much) democratic processes, is the same kind of thing and should be interpreted in the same way as the "deposit of faith," or that the Supreme Court should be regarded in the legal scheme of things in the way that the Church's magisterium is regarded on the theological side.

I know there are theologically trained readers out there who can capture better what I'm trying to say, or point out my mistakes.  My point, in the end, is that -- while it might be useful to refer, as Levinson does, to a "Catholic" constitutionalism (i.e., the "living" Constitution, etc.) -- it actually is not the case that such an approach to reading our Constitution is, in fact, "Catholic" (or "Protestant").  Any thoughts?

Rick

Why Catholicism is Different

By Rob Vischer

Forgive my tardiness as I've been milking the last ten days of vacation out of summer, but I wanted to offer a response to Rick's post last week in which he wonders why folks like Christopher Hitchens single out Catholicism as a threat to a judge's impartiality. Rick asks "why the possibility of exclusion from the Catholic Church and its sacraments is treated so differently by Hitchens, in terms of its possible corrupting influence on a judge's deliberations, than would be the possibility of exclusion from any other association, institution, or relationship?"

There are two reasons, in my view, why Catholicism is seen as more threatening to impartial judging than other associational ties, even religious ties. Take Catholicism versus Protestantism. First, the vast majority of Protestant denominations are congregational with nothing approaching the hierarchical authority found in the Catholic Church (for better or worse).  Many years ago one of my family members engaged in some outrageously un-Christian behavior and was removed from the membership of our evangelical congregation (by a majority vote of members). This act had no impact on his ability to attend or participate in worship at the church, nor did it hinder his ability to join another church -- even another church within the same denomination. Bill Clinton's public positions or private conduct could get him kicked out of his local congregation, but there's no mechanism (as far as I know) by which the Southern Baptist Convention could have him excluded from all member churches. In other words, the threat of exclusion is much broader for Catholics than for Protestants.

Second, for Protestants, exclusion from the church has little or no impact on their salvation. There is nothing akin to the Catechism's statement that "they could not be saved who, knowing that the Catholic Church was founded as necessary by God through Christ, would refuse either to enter it or remain in it." For Protestants, belief on the Lord Jesus Christ (John 3:16) is the whole ball of wax; whether or not an individual is in or out of a church's fellowship is important, but has no eternal ramifications. In other words, the threat of exclusion is much more serious for Catholics than for Protestants. (And obviously, of a wholly different nature than is an exclusion from the Boy Scouts, the 4-H Club, etc.)

To be clear, I agree with Rick and others that Hitchens is wrong, chiefly because it's difficult even to imagine situations where the Church would consider excluding a judge for fulfilling her public duties. But I don't think we can equate Catholicism with other associational ties in terms of the pressure they could bring to bear on an individual member.

Rob

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