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.

Friday, October 22, 2004

Equal Protection and Religious Schools in Maine

According to uber-lawblogger Howard Bashman the First Circuit just ruled, in Eulitt v. Maine, that the Equal Protection Clause does not require Maine to pay toward the tuition of students attending "sectarian" schools, even though the State does contribute toward the tuition of students attending private, "non-sectarian" schools. In a nutshell, the
First Circuit's old decision in Strout (also concerning Maine's "tuitioning" program) is still basically right, notwithstanding the Supreme Court's intervening decisions in Zelman and Davey.

Here is the opinion.

I apologize in advance for the "inside baseball" nature of these observations. That said, I think it is fair to say that Judge Selya embraced a broad reading of Davey's "play in the joints" idea. Although I had thought that the Chief Justice's opinion in that case took care to emphasize that Washington State *did* permit religious schools to participate in the education-funding program at issue there -- and simply excluded a particular course of study (for the ministry) -- Judge Selya said that Davey "recognized that state entities, in choosing how to provide education, may act upon their legitimate concerns about excessive entanglement with religion, even thought the Establishment Clause may not require them to do so." Again, I had read Davey as focusing not on "concerns about excessive entanglement" generally, but on a specific set of concerns -- with deep historical roots -- about funding the training of clergy.

Judge Selya also read, in my view, the Lukumi case quite narrowly. In his view, that decision is about (and only about) discriminatory laws that are motivated by "animus"; a law that treats religion differently -- or, that discriminates against religion -- but that is not obviously motivated by animus, is not, on Judge Selya's reading, vulnerable under the Free Exercise Clause. (The court did not take up the question whether -- as I believe -- exclusions like this were, as a historical matter, motivated by "animus" against Catholic education).

In any event, it appears that I and many others were mistaken in thinking that Davey would not undermine the argument that a school-voucher program that excluded religious schools (but not other private schools) is unconstitutional. So, for those who have not been following these cases closely, here's the bottom line: If Judge Selya's understanding of Locke v. Davey is validated and embraced by other courts, much of the promise for religious freedom and education reform of recent Religion Clause and Free Speech decisions by the Supreme Court will evaporate. At bottom, Selya's claim is that a majority's "anti-establishment interest" -- it's desire not to treat equally religious institutions and expression -- trumps the equal-treatment and free-exercise rights of religious institutions and believers, even if the State's understanding of "disestablishment" is idiosyncratic or overly restrictive. We'll see . . .

Rick

ND Center for Ethics and Culture blog

Notre Dame's Center for Ethics and Culture has a blog-type feature available now, here. This "Discussions" site has many entries that will be of interest to MOJ readers. Check out also the details of the Center's upcoming "Epiphanies of Beauty" conference.

Rick

Bishop Gumbleton

Thanks to Rick for posting the link to the Gumbleton op-ed, which i think is worth reading in its entirety. I'm a big fan of Gumbleton's and thought some MOJ readers might be interested in the fact that National Catholic Reporter make available his weekly homilies, which are automatically e-mailed to interested persons each week. I often find them quite good and his emphasis on addressing the needs of the poor and vulnerable is consistent and strong. The link from last week's (I haven't yet recieved this week's) is here.
--Susan

Bishop Gumbleton on Bush and the Culture of Life

Here is an op-ed (worth reading alongside Archbishop Chaput's, below) by Detroit's Bishop Gumbleton, called "President's Policies Are in Opposition to a Culture of Life." (Thanks to Amy Welborn for the link). Gumbleton states:

How are Catholics to deal with [the] split between [President Bush's pro-life] rhetoric and reality? Ours must be a prophetic voice. We must call on Bush to account for a deeply troubling record. And we must also challenge Democrats to embrace the entire culture of life, not just a selective economic and social agenda. The sad reality of American political life is that no candidate or party embraces and advances a "culture of life" in the fullest sense of the term.

Yet responsible citizenship calls us to cast our vote Nov. 2. How do we choose amongst imperfect candidates? We must each consult our conscience and consider the entirety of church teaching. And, as the U.S. Conference of Catholic Bishops' voter guide, Faithful Citizenship, encourages, we should measure "all candidates, policies, parties and platforms by how they protect or undermine the life, dignity, and rights of the human person, whether they protect the poor and vulnerable and advance the common good."

What we will not do is vote for a candidate just because he uses words that we like to hear; remembering, as scripture tells us, that we must be "doers of the Word and not hearers only."

Rick

Archbishop Chaput in the NYT

Here is a link to an op-ed by Denver's Archbishop Chaput, "Faith and Patriotism", in today's New York Times. He opens with this:

The theologian Karl Barth once said, "To clasp the hands in prayer is the beginning of an uprising against the disorder of the world."

That saying comes to mind as the election approaches and I hear more lectures about how Roman Catholics must not "impose their beliefs on society" or warnings about the need for "the separation of church and state." These are two of the emptiest slogans in current American politics, intended to discourage serious debate. No one in mainstream American politics wants a theocracy. Nor does anyone doubt the importance of morality in public life. Therefore, we should recognize these slogans for what they are: frequently dishonest and ultimately dangerous sound bites.

I have no doubt that the "separation of church and state", properly understood, is good for -- even necessary for -- authentic religious freedom. That said, Archbishop Chaput makes a good point here, I think. He continues, later in the piece:

The civil order has its own sphere of responsibility, and its own proper autonomy, apart from the church or any other religious community. But civil authorities are never exempt from moral engagement and criticism, either from the church or its members. The founders themselves realized this.

The founders sought to prevent the establishment of an official state church. Given America's history of anti-Catholic nativism, Catholics strongly support the Constitution's approach to religious freedom. But the Constitution does not, nor was it ever intended to, prohibit people or communities of faith from playing an active role in public life. Exiling religion from civic debate separates government from morality and citizens from their consciences. That road leads to politics without character, now a national epidemic.

It strikes me that Chaput's observations are valuable, wherever we might stand on the question that Michael Perry, Greg Sisk, Cathy Kaveny, Mark Roche, Gerry Bradley, and Robert George have been addressing (i.e., can faithful Catholics conclude that, all things considered, it is better for the common good to vote for John Kerry?).

Rick

Faith and Patriotism

Archbishop Chaput has an op-ed in today's New York Times entitled, "Faith and Patriotism." In it, he chides Catholics who argue that we must not "impose our beliefs on society" or who are unwilling to stand up for Catholic principles in public debate out of respect for the concept of "separation of church and state."

"We are doubly unfaithful--," he writes, "both to our religious convictions and our democratic responsibilities--if we fail to support the right to life of the unborn child. Our duties to social justice by no means end there. But they do always begin there, because the right to life is foundational."

I certainly agree wholeheartedly with the archbishop. The right to life is foundational, and it encompasses a number of issues beyond abortion. The problem for me is how do I go about supporting the right to life in a way that is consistent with both my religious faith and my democratic responsibilities? As Michael Perry so aptly pointed out in his most recent post, I would not dream of telling anyone that she could not vote for President Bush and honor her faith commitments The issues with which we are confronted in this election are much too complicated for such simplistic reductionism. I take my religious faith and my democratic responsibiilities very seriously. Personally, however, I would abstain from voting rather than vote for George Bush.

I find it incredibly disturbing that many Catholics see the theoretical potential for an overturning of Roe v. Wade under a Bush administration as the only responsible way a Catholic can support the lives of unborn children. As other posts have pointed out, more unborn children have died during this Republican administration than in the previous Democratic one. One may argue about the reasons, but the facts remain the same. And what of the lives of countless innocents in Iraq, and potentially, Iran and North Korea that would be at risk under a second Bush term? The fact that war may be licit in some circumstances does not relieve this administration of its moral responsibility for the current conflict, which now rests on justifications that have little or no support in Catholic teaching, or for the destabilization of the global order that their announcement of an immoral policy of pre-emptive wars will inevitably create. Are unborn children in the United States more deserving of life than Iraqi children, many of whom die slowly and painfully as a result of injuries sustained during this conflict, or because of the poor health and nutrition that is always a part of the social breakdown that results from war?

Democratic responsibility is about a lot more than voting. A Catholic citizen can certainly practice "faith with works" in any number of meaningful ways that have a much more profound effect on the life of the society in which he lives than the simple act of casting a ballot for president. Indeed, it is often on the local level (and in local elections) that the real work for supporting life often has its most immediate effects. Are Catholics voting to fund health, nutrition, education, and social service programs for poor children? Are they working to help these children in other ways? When a Catholic votes for a candidate who vows to cut taxes and the public services those taxes support, does she recognize the long-term consequences of that choice?

It will take years, at best, for a Republican administration to do anything meaningful to change the current abortion laws, but I know that George Bush and his allies have been doing, and will continue to do, all that they can to redistribute wealth upward as quickly as possible. I know that they see war as just another foreign policy tool and they are willing to use it regardless of what the international community (or the Catholic Church, for that matter) thinks. I know that they disparage our longstanding allies and that they have disdain for international institutions and processes that they cannot control. I know that innocent people have suffered and died because of these things, and that they and others will continue to suffer and die as a direct result of his policies if he remains in office. I know that this administration has brought out some of our nation's worst isolationist and nativitist tenedencies. Yet, I am supposed to ignore all this and vote for him because he might make a few appointments to the Supreme Court that might lead to more restrictive abortion laws? I don't think so.

Vince

Religion and Culture in the Chron. of Higher Ed.

The web site of the Chronicle of Higher Education has made available some fascinating essays on Religion and Culture by 10 scholars. Here's the blurb:

What role do or should religious institutions play in society? Does religion shape culture, or vice versa? Does it have a political content? How has the relationship of religion to American society changed in the contemporary world?

Many new and forthcoming scholarly books on religion and American culture seek to answer questions like those, which are part of some of today's most pressing public debates, underlying such controversies as abortion, school vouchers, the roots of terrorism, and many more.

In light of the recent scholarship and public debates, The Chronicle asked 10 leading scholars to give their views on religion in American life today.

The participating scholars include George Marsden, Jean Bethke Elshtain, Robert Wuthnow, and many others. Check it out.

Rick

Voting Made Easy

Here's a voter's guide for "serious Catholics." It has been ordered in bulk by 1500 parishes across the country, including 50,000 copies distributed within the St. Louis archdiocese. It lists five "non-negotiable issues": abortion, euthanasia, cloning, embryonic stem cell research, and homosexual marriage. It instructs Catholics to rank the candidates based on their positions on "these non-negotiable principles," and warns that they should not vote "for candidates who are right on lesser issues but who will vote wrongly on key moral issues. One candidate may have a record of voting in line with Catholic values except, say, for euthanasia. Such a voting record is a clear signal that the candidate should not be chosen by a Catholic voter, unless the other candidates have voting records even less in accord with these moral norms."

Rob

Thursday, October 21, 2004

Revisiting the Naked Public Square

It's not available online yet, but try to secure a hard copy of the new First Things, which features a symposium marking the 20th anniversary of the publication of Richard John Neuhaus' The Naked Public Square. Among the many noteworthy contributions, a couple stand out in light of the discussions we've had regarding the collectivization of religiously driven moral norms. Stanley Hauerwas notes his fondness for the book despite the fact that it "has little time for 'sectarians' who have allegedly given up on the public square." Indeed, Hauerwas observes that he and his ilk would seem to favor the public square's nakedness, for they "get to say you never should have trusted the world to underwrite your faith in the first place." Hauerwas also declines to accept Neuhaus' compliment that sectarians are a "needed corrective" to "the spineless acquiescence of mainline Protestantism." Sectarians, Hauerwas reminds us, "do not think of ourselves as a 'corrective.' We think what we say about what it means to be a follower of Jesus is true and, therefore, not simply a reminder to those who responsibly get their hands dirty."

On a related line, David Novak applauds the book, but expresses concern with Neuhaus'

growing nationalism, especially his recent tendency to employ the theological concept of election to describe the United States of America as "an almost chosen people." The public morality advocated by the American government, especially by President George W. Bush and his administration, might well put America in the forefront of both the local and international struggle for authentic human rights. Nevertheless, "chosenness" is the preserve of those peoples, like the Jewish people and the Christian Church, who see themselves as having been elected by God. There is a fundamental difference between a community whose immediate warrant comes from a transcendent source ("I am the Lord your God") and a nation whose immediate warrant comes from an interhuman agreement ("We the people of the United States").

As the symposium richly reflects, there is certainly no uniform "Christian" take on the relationship between faith and our common life. There is, however, welcome agreement that the relationship merits continuing exploration.

Rob

Wednesday, October 20, 2004

My Own Take on Catholics and the Presidential Election

I've not heard anyone claim that a faithful Catholic cannot conscientiously vote for President Bush. Nor have I heard anyone claim that a faithful Catholic cannot conscientiously decline to vote either for President Bush or for Senator Kerry. (Have I missed something?)

However, I have heard many argue to the effect that a faithful Catholic cannot conscientiously vote for Senator Kerry--and, moreover, that there is no room for a reasonable difference of judgment about whether a faithful Catholic can conscientiously vote for Kerry. Gerry Bradley and Robby George make an argument to that effect in the National Review Online piece to which Rick Garnett posted a link on October 12, 2004. This argument is implausible.

Consider, in that regard, John Langan, SJ, Observations on Abortion and Politics, AMERICA, Oct. 25, 2004, at pp. 9-12. (Father Langan is the Joseph Cardinal Bernardin Professor of Catholic Social Thought at Georgetown University.)

Consider, too, Margaret O'Brien Steinfels, Time to Choose: Voting With a Catholic Conscience, COMMONWEAL, Oct. 22, 2004, at pp. 10-13. (Ms. Steinfels was editor of COMMONWEAL from 1988-2002.)

Now, I'm confident that Gerry Bradley and Robby George and many others do not agree with Father Langan and Ms. Steinfels. Nothing wrong with that. But for Bradley or George or anyone else to insist that Father Langan's argument and Ms. Steinfels kindred argument are unreasonable is breathtakingly arrogant. Read Father Langan's and Ms. Steinfels' essays. See for yourself.

The Steinfels essay is here.

The Langan essay, in a somewhat longer version than the one just published in AMERICA, is here.

If you disagree with me--if you think that, Father Langan and Ms. Steinfels to the contrary notwithstanding, a faithful Catholic cannot conscientiously vote for Kerry, and, moreover, that there is no room for a reasonable difference of judgment about whether a faithful Catholic can conscientiously vote for Kerry--then please tell me and the other readers of this blog precisely where, in your view, Father Langan's and/or Ms. Steinfels' arguments are not merely arguments that you reject, but unreasonable arguments that any faithful Catholic must, in good conscience, reject.

Michael P.