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.

Sunday, February 13, 2005

"Neither Tyrant Nor Tree Hugger"

By Rick Garnett

The ZENIT news service has a helpful (if weirdly titled) discussion of the new Compendium of the Social Doctrine of the Church, which "dedicates an entire chapter to environmental issues, in recognition of the subject's increasing importance. The opening numbers urge Christians to view the environment with a positive attitude, to avoid a gloom-and-doom mentality, and to recognize God's presence in nature."  Invoking Genesis, the new Compendium observes that "[t]he relationship of man with the world is a constitutive part of his human identity. This relationship is in turn the result of another still deeper relationship with God" (No. 452).  Also:

If we need to avoid the error of reducing nature to purely utilitarian terms, in which it is only something to be exploited, we also need to avoid going to the other extreme of making it an absolute value. An ecocentric or biocentric vision of the environment falls into the error of putting all living beings on the same level, ignoring the qualitative difference between humans, based on the dignity of the human person, and other creatures.

The key to avoiding such mistakes is to maintain a transcendent vision. Acting responsibly toward the environment is more likely when we remember God's role in creation, explains the Compendium. Christian culture considers creatures as a gift from God, to be nurtured and safeguarded. Caring for the environment also falls within a responsibility for ensuring the common good, in which creation is destined for all. The Compendium also notes that we have a responsibility toward future generations.

And:

A section of the chapter is also devoted to the question of sharing the earth's resources. God created the goods of the earth to be used by all, notes the Compendium, and "They must be shared equitably, in accordance with justice and charity" (No. 481). In fact, international cooperation on ecological issues is necessary, as they are often problems on a global scale.

Ecological problems are also often connected with poverty, with poor people unable to cope with problems such as the erosion of farming land because of economic and technological limitations. And many poor people live in urban slums, afflicted by pollution. "In such cases hunger and poverty make it virtually impossible to avoid an intense and excessive exploitation of the environment" (No. 482).

The answer to these problems is not, however, the policies of population control that do not respect the dignity of the human person. The Compendium argues that demographic growth is "fully compatible with an integral and shared development" (No. 483). Development should also be integral, continues the text, ensuring the true good of people.

Rick

The Demise of Parochial Schools?

By Rick Garnett

Today's New York Times includes an article, "Once Mighty, Catholic Schools Find Status is Diminished," on the news (and its implications) that "the bishop of the Brooklyn Diocese announced that 22 Roman Catholic elementary schools in Queens and Brooklyn would shut down in June":

So what was lost, in a single day last week, were the identities of 22 neighborhoods honed over generations. What emerged was an unmistakable milepost. The mighty parochial school system that rose a century and a half ago from immigrant ghettos to serve as a portal into American society for millions - and as a virtually unlimited source of power for the institutional Catholic Church - is fading into history.

Put aside the tiresome throw-away line about the "power of the institutional Catholic Church" -- It is interesting to consider whether, although the parochial school system did, in fact, rise "to serve as a portal into American society for millions," its purposes had more to do with protecting Catholics and Catholic families from the aggression (ideological and otherwise) of 19th century "American society." 

The article also includes some interesting observations about the role of parochial schools, and parishes more generally, in the landscape and civil society of urban areas.  We're told, for example, that parishes often served as "mini-states," and that they were often more important to urban geography, and to city-dwellers' identity, than the conventional markers and boundaries.

Rick

Kristof on "God and Evolution"

By Rick Garnett

Nicholas Kristof's op-ed in today's New York Times, "God and Evolution," considers the possibility that "our DNA may predispose humans toward religious faith. "  "Granted," he continues, "that's not very encouraging news for the secular left. Imagine if many of us are hard-wired to be religious. Imagine if, as a cosmic joke, humans have gradually evolved to leave many of us doubting evolution."  After setting out the debate, he concludes:

Of course, none of that answers the question of whether God exists. The faithful can believe that God wired us to appreciate divinity. And atheists can argue that God may simply be a figment of our VMAT2 gene.

But what the research does suggest is that postindustrial society will not easily leave religion behind. Faith may be quiescent in many circles these days, or directed toward meditation or yoga, but it is not something that humans can easily cast off.

A propensity to faith in some form appears to be embedded within us as a profound part of human existence, as inextricable and perhaps inexplicable as the way we love and laugh.

Many times, on this blog, it has been suggested that one of the key components of a "Catholic Legal Theory" would be a "moral anthropology" that emphasized human dignity, dependence, and creature-hood more than autonomy.  It does not surprise me to learn that "a propensity to faith in some form appears to be embedded within us" -- as Augustine recognized, "You have made us for Yourself, and our hearts are restless until they rest in You."  And, even conceding Kristof's cautionary statements about drawing unwarranted conclucions from this "propensity," it does seem reasonable to say that laws and structures whose premises, aims, or effects are in fundamental conflict with what Kristof calls our "hard wiring" will be, for that reason, more difficult to justify and -- in any event -- are unlikely to succeed or flourish.

Rick

Friday, February 11, 2005

Allowing Suits Against Churches for Sexual Harassment

By Susan Stabile

Rick's post about the the Ninth Circuit's decision in Elvig vs. Calvin Presbyterian, which holds that a suit for damages may be brought against a church for sexual harassment committed by a pastor/supervisor to a minister, quotes the dissent position that the decision is "an invasion by the federal government into the church's core prerogatives and autonomy.''

I disagree with the position that the availability for damages for harassment is an impermissible interference with the church's constitutionally protected decisions to hire and retain ministers.  It is one thing to say that a church may engage in what would otherwise be termed employment discrimination in hiring its ministers.  It is another to suggest that respect for religious freedom requires protecting the ability of pastors to sexually harass those employees they choose to hire.  If the pastor had physically assaulted the minister, would anyone think it inappropriate if the minister sued for damages to compensate for those injuries?  (The court in this case was clear that there could be no damages for the resulting termination of employment of the harassed employee, only for the harassment itself.)

Dissenting from the Ninth Circuit's decision not to rehear the case en banc, Judge Kleinfeld argued that the availability of damages for sexual harassment necessarily interferes with hiring decisions becuase "to prevent lawsuits alleging sexual harassment, churches will fire ministers who they think expose them to risk of damage awards and hire those who they think will not."  I'm not entirely sure how one determines whether a potential employee is likely to expose the church to damage awards, but unless a church is trying to preserve its ability to engage in sexual harassment of its employees, it is difficult for me to see the danger here.

  As the Ninth Circuit said in denying a rehearing en banc, there was no allegation by the church that that there was a religious justification for the sexual harassment.  Thus the court did not address the question left open in its prior decisions concerning whether sexual harassment based on a religious justification was constitutionally protected.

Susan

Ninth Circuit Religious Autonomy Case

By Rick Garnett

Howard Bashman is reporting on an important ruling out of the U.S. Court of Appeals for the Ninth Circuit:  "The dissent by Circuit Judge Andrew J. Kleinfeld, in which three other Ninth Circuit judges joined, begins:

For the one of every five Americans who live in our circuit's jurisdiction, the "wall of separation" between church and state now has a gate. The gate is one-way. The government may pass through to regulate the internal affairs of a church, but the church must remain on its own side."

Here is a news story about the case:  "A church can be sued for allowing sexual harassment of one minister by another, despite constitutional protection for religious institutions' employment actions, a divided federal appeals court in San Francisco ruled Friday." 

Judge Raymond Fisher said that the constitutional guarantee of religious freedom does not shield the church from "its obligation to protect its employees from harassment.'' A judge does not have to examine religious doctrine to decide whether Elvig was subjected to a hostile work environment, Fisher said.

In dissent, Judge Stephen Trott called the case "an invasion by the federal government into the church's core prerogatives and autonomy.'' He said the suit would inevitably plunge the courts into religious doctrine.

Rick

More on Marquette

By Rob Vischer

Last week I posted on Marquette's decision to ban the College Republicans from promoting an "Adopt a Sniper" program on campus.  Now Town Hall columnist Mike Adams criticizes the school for adhering more to the Democratic Party platform than to its Catholic identity.  Portraying the school's stance as forbidding "pro-war" speech, he fails to mention that the group was distributing bracelets reading "One Shot One Kill No Remorse I Decide."  The episode does provide an opportunity for valuable conversations on free speech, institutional identity, and the Catholic university.

Rob

Catholic Contributions to Understanding "The Mystery of Human Life"

By Michael Scaperlanda

Continuing the conversation begun with the insightful posts of Rick, Rob, and Steve on the relevance of Catholic Legal Thought, I'll contribute a few thoughts.

Our project (and I assume we are all in agreement on this) is not about viewing liberty as "the right to define one's concept of existence, of meaning, of the universe, and of the mystery of human life."  Instead, our project is about discovering the meaning of our existence, of the universe, and the origins, purposes, and destination of human life.  As we enter ever more deeply into these mysteries and give ourselves completely to Christ, "the presence at the center of all things" (Morris West), we will receive authentic freedom or liberty. 

It seems to me that our methodology, which is the opposite of the prevailing methodology, makes a tremendous difference, even if we reach the same policy conclusions as our secular colleagues or our even our own previous conclusions based on secular reasoning before we put our reasoning through the Catholic wringer, as Mark would say.

And, sometimes, filtering our own views through the teachings of the Church will cause us to shift our conclusions.  This happened to me with respect to immigration law and policy.  For a long time, I was in agreement with my secular liberal colleagues who find it hard to justify immigration restrictions and therefore favor immigration policies bordering on open borders.  While I agreed with them, I thought I was doing so on different grounds, filtering my views through Catholic teaching.  Recently, and this will be the subject of part of a talk I will give later this month at Fordham, I have come to realize that my Catholic view was filtered (unbeknownst to me) through liberalism's lens that viewed the would be immigrant as an autonomous seeker of a better life, unconnected to the family, culture, and history of her country of origin.  I don't know where this realization leaves me with respect to how open or restrictive our immigration policy ought to be, but I now see more fully the cost and the tragedy of e/immigration.  I'll post my paper on the blog after the conference.

Michael  S.

Professor Klick Responds

By Michael Scaperlanda

Responding to Rob's post and my speculation about his paper, Salvation as Selective Incentive, Jonathan Klick writes:

Thanks for the attention your blog is giving to my old (in working paper form at least, though it just now made it into an econ journal) paper “Salvation as a Selective Incentive.”  The econometric design does control for the possibility of larger Catholic families (though, truth be told, during the relevant time period Catholic families were not systematically larger than Southern Baptist families or AOG families, which are also in the dataset, but are larger than the other two denominations in the dataset – Presbyterians and Lutherans) in earlier years and does control for income/wealth directly as well.

The stronger alternative hypothesis to the one I argue for is that there is simply a very strong difference between those Catholics who had their formative years before Vatican II and after Vatican II and that drives my results.  I provide some indirect evidence against this possibility such as discussion of others people’s work that suggests “formative years” type analyses (especially wrt Catholics and Vatican II) do not explain other kinds of religious data.  Also, in my sample, my “near death” category of Catholics (those aged > 75) look substantially different in their giving behavior than do those in the next oldest groups (65-70 & 70-75 controlling for income, demographic, etc differences) even though all members from those groups would have had their formative experiences pre Vatican II (the data are from a 1993 survey).

However, I cannot directly rule out the possibility because as of yet we do not have any very old Catholics whose formative years occurred after Vatican II to create a sufficient control group.

Thanks again for the attention.  As a fellow Catholic law prof, I visit the blog from time.

Jon

Adult Stem Cells and the Gospel of Life

By Steve Bainbridge

Those of us who have worried about the morality of embryonic stem cell research have long wondered whether adult stem cells could not provide the same or better results. According to a TCS column by Michael Fumento, they can:

Supporters of expanded federal funding for embryonic stem cell (ESC) research were disappointed by President Bush's State of the Union Address, which indicated no softening of restrictions. Instead, he said he'd work to "ensure that human embryos are not created for experimentation." But those who support expanded government ESC funding because they believe it will bring medical breakthroughs have naught to fear. For there's a far more promising approach likelier to produce more benefits and much sooner.

That's because we're being flooded with exciting new developments from the alternatives to ESCs, called adult stem cells. Taken from a person's own body or from umbilical cords or placenta, these cells continue to be used to treat ever more diseases. Further, ASC research in humans and animals keeps biting away at the alleged trump card of ESC-backers, that only ESCs can be transformed into every type of cell in the body. Cardiologist Douglas Losordo's research lab at Caritas St. Elizabeth's Medical Center in Boston has now become at least the fourth to indicate ASCs can do just that.

Healing without murder. Isn't that exactly what the Gospel of Life commands? (Crossposted from my personal blog).

Thursday, February 10, 2005

"Catholic Legal Thought": What's the Point?

By Rick Garnett

I appreciate very much Rob's and Steve's posts, below, about the point or "value" of "Catholic legal thought."  A few reactions:

I have huge respect and affection for Tom Shaffer but, like Steve, I do not believe that Catholic Social Thought supports, let alone requires the embracing of, Marx's core principles.  CST provides, as I understand, a set of principles that, if implemented, should create a context within which human flourishing can and does take place.  Borrowing from Rob's post, I regard CST itself as a "means" to the "end" of authentic human freedom.  I am not an expert, but I do not believe that Marx ever did, or that Marxism really can, take human freedom seriously.

Next, Rob writes:  "[t]he impact on the poor must be central to economic policy if the vision laid out by CST is to be taken seriously. The means by which the poor can best be helped should be debated with vigor, but the plight of the poor as a foundational concern of economic policy is non-negotiable."  I think this is right, and well said.  I'm not sure, though, that this means that a particular policy -- e.g., tax cuts -- must always be linked explicitly by its supporters to the good of the poor in order to be morally permissible.  If President Bush says, in his speeches about tax cuts, that they are good because (a) they help the economy and (b) are more consistent with a vision of limited government and property rights, but neglects to state explicitly that (c) tax cuts are (he thinks) consistent with the preferential option for the poor, I don't think this omission undermines the CST case for the policy.

Finally, I wonder if "Catholic Legal Thought" is (or can be) more than and bigger than the Catholic Social Thought tradition?  That is, our effort here at MOJ to develop a "Catholic Legal Theory" is about more than applying CST to policy questions or legal enactments -- isn't it?  The Catholic tradition includes other claims and resources -- e.g., the possibility of actual knowledge about reality, the nature of the human person, etc. -- besides the rich resources of CST. 

It is, as Steve points out, possible (if not inevitable) for reasonable people, thinking in light of CST principles, to reach different conclusions on a range of policy questions.  (And, unlike Mark, I do not regard the Bainbridge / Novak / etc. approach as an "outlier", except in a purely descriptive sense).  Still, a commitment to, and application of, Catholic thinking about, say, the reality of morality, will, I think, make a difference.  So, keep on blogging!   

Rick

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