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, June 2, 2005

More on Law and Religious Arguments

Like Michael P., I substantially agree with Eugene Voloch here.  I think part of the difficulty with the criticism of the use of religious arguments is illustrated by the language of the reader Voloch quotes.  The reader complains that:

  "once someone says "a little man in the sky whom you don't think exists ordered humans not to do something", that ends the debate. I realize that I am being sarcastic, but to the nonbeliever, that is exactly what it means to say that God ordered something. To the nonbeliever, saying God ordered something is no different than someone saying that he was visited by an apparition who ordered him to do something, or that his palm or tarot card reader told him that the spirits have ordered it."

It is the grossest misstatement of those who take religion seriously to say that one's belief is simply a matter of God (I'll ignore for present purposes my views on characterizing God as a man in the sky, little or otherwise) ordering something.  Yet that is precisely how opponents of religious argument most often seem to characterize it.

A mature faith is not a matter of externally imposed rules incapable of being understood in rational terms.  (My own view is that God "orders" nothing, but, rather, invites us to grow in love and unity with Godself and with others.)  Rather, it is about living in accordance with a set of principles aimed at developing our full human potential.  Those principles are no less capable of being discussed and argued about than are nonreligious motivations for action.

It may be that some people making religious arguments are not making them well.  But I suspect it is also the case that many of those who criticize religious arguments are not really listening to the arguments being made, but are simply operating out of a knee-jerk fear of (and lack of understanding of the nature of) religious arguments. 

Susan

Religious Reflections on Property

Today I came across a book called Having: Property and Possessions in Religious and Social Life (William Schweiker and Charles Mathewes ed., Eerdmans 2004).   From a review on the website of the Center for Public Justice, a Canadian organization concerned with religion and public life:

The editors tell us that their book "aim(s) to show the contribution religious studies and theological reflection can make to considering and responding to a humanly basic reality, namely, property and possession." Sixteen essayists come at the theme from different perspectives and disciplines. From a brilliant study by Charles Mathewes of Augustine’s concept of "using the world." to Jean Bethke Elshtain’s anguished look at the rhetoric of today’s eugenics, this book reminds us that we inherit an ocean of meaning nuanced by our ancestors and fed by biblical streams.

Tom B.

Wednesday, June 1, 2005

More on Bush and God Talk

Continuing with the subject of President Bush's use of religious rhetoric in various speeches:  MOJ reader Jason Samuel, from Ave Maria Law School, points me to some interesting comments made by Michael Gerson, the President's speechwriter, during an Ethics and Public Policy Center conference in January.  Gerson gives a generally persuasive defense of the religious elements in Bush's speeches.

One of the more recent criticisms, by a U. Washington communications professor, compared Bush's supposedly arrogant "declarations of God's wishes" with Franklin Roosevelt's more humble "requests for divine blessing." I suspected from the start that the professor was giving a selective use of quotations designed to make FDR look more humble than Bush, and Gerson confirms my suspicion by citing some other examples from FDR's speeches:

On D-Day, most of you probably know, FDR did his announcement to the nation entirely in the form of a prayer. He said, “In the poignant hour, I ask you to join with me in prayer.” He asked for victory, for renewed faith, and said, “with Thy blessing we shall prevail over the unholy forces of our enemy. Help us to conquer the apostles of greed and racial arrogance.”

Or FDR’s State of the Union address a month after Pearl Harbor:

“They know that victory for us means victory for religion, and they could not tolerate that. The world is too small to provide adequate living room for both Hitler and God. In proof of this, the Nazis have now announced their plan for enforcing their new, German pagan religion all over the world, a plan by which the Holy Bible and the cross of mercy would be displaced by Mein Kampf and the swastika and the naked sword.

“We are inspired by a faith that goes back through all the years to the first chapter of Genesis: God created man in his own image. We on our side are striving to be true to that divine heritage. That is the conflict that day and night now pervades our lives. No compromise can end that conflict. There never has been, there never will be successful compromise between good and evil.”

Plug in "Bin Laden" for Hitler, and you've got something that Bush might have said today -- and boy, if he had, wouldn't there have been an uproar among the editorial-page writers and the communications professors (and more than a few law professors as well).  Actually, FDR went quite a bit further, it's my impression, than Bush ever has.  Would Bush dare (especially in a State of the Union address) to call a victory over terrorists "a victory for religion" -- as opposed to a victory for freedom, justice, and democracy?

More and more, these efforts to define ground rules for what kind of religious language is appropriate strike me as evasions of the real issues.  If the Bush administration has pursued too cocksure and dogmatic a policy on Iraq and terrorism, that case should be made on the merits of the policies.  There are plenty of grounds to sustain that charge.  But sustaining the charge would require actually analyzing the military, diplomatic, and cultural aspects of the Bush policies -- which are matters that communications professors (and we law professors) often try to evade because they lack real expertise in them.  It's so much easier, isn't it, to just read a speech and pick at the language in it.

Tom B.

LAW AND RELIGIOUS ARGUMENTS, CON'T

Thanks to Rick for calling the to-and-fro between Geoff Stone and Eugene Volokh to our attention.

Rick asked for our thoughts.  Here's mine:  Volokh is substantially correct.  Stone is quite wrong.

The most startling thing to me about Geoff Stone's comment is not that it's wrong but that it's uttered with such confidence.

One danger of teaching at an elite law school (like Chicago) for your whole career, I suppose, is that you may come to feel entitled to opine--ex cathedra, as it were--on matters with respect to which you are simply not up to speed.  One wonders whether Geoff Stone has gone to the mat with the relevant literature (Eberle, Greenawalt,  Wolterstorff, Audi ...).

Michael P.

Law and Religious Arguments

There is a very interesting conversation going on at the Volokh blog about law and religious arguments.  (Click here for one post, which has links to others).  This post by Professor Geoffrey Stone -- a First Amendment expert -- at the "Huffington Blog" started things going.  Here are pieces of the exchange:

Stone:

George Bush appears to have no idea whatever of the difference between faith and morality. He acts arrogantly on the premise that cell-stem research, gay marriage and abortion are immoral, when in fact his views are based entirely on his own sectarian religious beliefs. His opposition to cell-stem research is no different, and no more legitimate, than a Muslim's opposition to Bush eating pork. Such a policy is merely faith masquerading as morality. As such, it is profoundly, blindly, and disturbingly incompatible with a basic premise of a well-functioning democratic society.

Volokh:

[I]t shouldn't matter whether someone supports [laws banning -- or allowing -- abortion, infanticide, the destruction of embryos or chimpanzees for medical purposes, or the killing of members of endangered species might be sound or unsound] because of his belief that laws should turn on the greatest good for the greatest number, his belief that we are all sons and daughters of Gaea and must thus protect our environment, or his belief in the Bible. For most, quite possibly all, of us, our moral beliefs ultimately rest on unproven and unprovable moral axioms. The Constitution doesn't consign those whose moral beliefs rest on unproven and unprovable religious axioms to a lesser citizenship, under which they may not enact their views into law, while others with the same views that rest on unproven and unprovable secular axioms are free to do so.

Any thoughts?  Michael P?

Rick

Op-ed on RLUIPA decision

I have posted a short op-ed about the Supreme Court's decision yesterday upholding the Religious Land Use and Institutionalized Persons Act in the face of an Establishment Clause challenge.  I also recommend Marty Lederman's analysis, at "SCOTUSBlog."

Rick

So Now We're Getting Moral?

In the new First Things, Joseph Bottum has a provocative article titled, "The New Fusionism" in which he addresses the fact that:

Those who believe the murderousness of abortion to be the fundamental moral issue of our times and those who see the forceful defeat of global, anti-Western Islamicism as the most pressing political concern we face . . . seem to be increasingly voting together, meeting together, and thinking together. If you want to advance the pro-life cause, you will quickly find yourself seated beside those who support an activist, interventionist, and moralist foreign policy for the United States. And, conversely, if you are serious about the war on terror, you will soon discover that you are mingling with those fighting against abortion.

This makes sense, in Bottum's view, because both issues "require reversing the failure of nerve that has lingered in America since at least the 1970s, and success in one may well feed success in the other." Traditional conservative issues have been sidelined for the moment because:

however important, they do not bear hard on the immediate question of social defeatism—on the deep changes that might reawaken and remoralize the nation. The one thing both the social conservatives and the neoconservatives know is that this project comes first.

The angry isolationist paleoconservatives are probably right—this isn’t conservatism, in several older senses of the word. But so what? Call it the new moralism, if you like. Call it a masked liberalism or a kind of radicalism that has bizarrely seized the American scene. Mutter darkly, if you want, about the shotgun marriage of ex-socialists and modern puritans, the cynical political joining of imperial adventurers with reactionary Catholics and backwoods Evangelicals. These facts still remain: The sense of national purpose regained by forceful response to the attacks of September 11 could help summon the will to halt the slaughter of a million unborn children a year. And the energy of the pro-life fight—the fundamental moral cause of our time—may revitalize belief in the great American experiment.

An interesting thesis, but it's hard for me to see the post-9/11 climate in this country as indicative of our national "remoralization." In many instances, it seems more about a self-absorbed and self-aggrandizing concern for our own physical well-being. Whatever their merits, why are the invasions of Afghanistan and Iraq more of a signal of the country's upward moral trajectory than, for example, President Clinton's failed (and largely mocked) effort to secure universal health care?

Rob

UPDATE: Matthew Festa takes issue with my characterization of the post-9/11 environment:

if you look at the 2000 election, no candidate stressed international issues and problems (especially President Bush, minus SDI). The entire election revolved around "who can best spread the goods." Those who did focus on international problems, engaged in empty moralism. Sure, we helped out in the Balkans, but that's an exception to the rule (and we didn't even use ground troops)

After 9/11, America woke up from this slumber and took action. You may not like the action, but the action itself is not reducible to "self-absorption." America has gone out of its way to promote democracy (at great cost to itself) in both Afghanistan and (especially) Iraq. In addition, it has promoted democracy in the Ukraine, Lebanon, Egypt, and other countries where it didn't exist before. If you are going to make the claim that these actions are "concern for our own physical well-being," then you are going to have to explain how the sacrifices made fit into your thesis.

I did not mean to suggest that there are not noble elements of self-sacrifice on display in our current foreign policy.  But as I've argued earlier, there is an unmistakable pursuit of self-interest regardless of cost to others, typified both by Bush's stated justification of the war on his unwillingness "to stake one American life on trusting Saddam Hussein," and on his assertion that the chaos in Iraq has a positive aspect because it allows us to battle the terrorists over there instead of here.

Festa also asserts that Clinton's health care plan deserves to be mocked.  That might be.  I'm not defending its terms, but simply pointing out that it represented just as morally driven and bold of a change in course for American policy as an increasingly interventionist democratization project does.  The fact that discussions of universal health care have largely fallen off the radar screen represents a huge void in our country's "remoralization," regardless of our military actions overseas.  Can and should the "war on terror" be a morally laden exercise?  Certainly, but we shouldn't pretend that the moral compass of the country is defined by the electoral power of the pro-invasion / anti-abortion overlap.

Rob

Tuesday, May 31, 2005

Steve Smith on Disowning our Past

My friend and former colleague, Steve Smith, has posted his latest paper, "Justice Douglas, Justice O'Connor, and George Orwell:  Does the Constitution Compel Us to Disown our Past?"  Here is the abstract:

Justice William O. Douglas's majority opinion in Zorach v. Clauson famously asserted that [w]e are a religious people whose institutions presuppose a Supreme Being. What did Douglas mean, and was he right? More recently, in cases involving the Ten Commandments, the Pledge of Allegiance and other public expressions and symbols, the Supreme Court has said that the Constitution prohibits government from endorsing religion. Can Douglas's Supreme Being assertion be reconciled with the no endorsement prohibition? And does the more modern doctrine demand that we forget, falsify, or forswear our pervasively religious political heritage? This essay, presented as the William O. Douglas lecture at Gonzaga Law School, addresses those questions.

Thanks to Larry Solum for the link.

Rick

Important Supreme Court Religion Clause case

In the Cutter case, the Justices unanimously (!!) upheld the Religious Land Use and Institutionalized Persons Act, rejecting the claim that the Act -- by mandating a more religion-friendly standard in accommodation-of-religion cases arising in prisons -- violates the First Amendment's Establishment Clause.  Justice Ginsburg wrote the opinion for the Court, and emphasized -- correctly -- that the government may accommodate religion, even when such accommodation is not required by the Free Exercise Clause, without violating the no-establishment rule.

Justice Thomas's separate concurrence is particularly interesting, since he re-presents, and elaborates upon, his view that the Establishment Clause was primarily a "federalism" provision.

Rick

Public schools, Catholicism, and "Confusion"

I just want to add one additional criticism to Rick's thoughtful dissection of the court ruling barring parents from exposing their child to Wicca given his attendance at a Catholic school. If a child's "confusion" arising from the conflict between the messages expressed in the home and school environments becomes a proper ground on which to define the child's best interests, religious folks of all stripes are in for a rough ride. I haven't read the opinion itself, but it seems that the logic could apply equally to Catholic parents sending their child to public school (or to a secular private school, if the voluntariness of the attendance decision undergirds the court's reasoning). A court could reason that exposure to Catholicism creates too much confusion for a child exposed to public school values, particularly in the areas of homosexuality and gender equality. Another reason to defend government neutrality as an (admittedly elusive) guiding ideal in this area.

Rob