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.

Tuesday, July 29, 2014

Civil Religion and the First World War

Yesterday was the centenary anniversary of the beginning of World War I. On July 28, 1914,  one month after Archduke Franz Ferdinand of Austria was assassinated, the Austro-Hungarian empire made its first moves against Serbia. The Great War would end more than four years later.

This weekend, I visited the Museum of Fine Arts in Boston, which was hosting a very fine exhibit of American World War I posters. I was struck by the powerful imagery of civil religion in many of them. Here are two exhorting the purchase of war bonds that stood out to me as particularly representative of the genre:

World War I #1World War I #2

 

 

 

 

 

 

 

 

 

 

 

 

 

 

And this afternoon, to remember the War, Mark Movsesian and I visited Flag Pole Green in Queens, New York, which has this lovely memorial to the men of Queens who died in the War:

World War I #3

Just a few fragments of civil religion–that perennial American socio-political coagulant–in memory of the war to end war.

Frum on Ryan's Anti-Poverty Proposal in a Time of "Pervasive Economic Insecurity"

David Frum, the at The Atlantic, joins others in welcoming Paul Ryan's anti-poverty proposals as an important step in returning Republican political leaders to serious discussion about how to deal with poverty. But Frum thinks the compassionate conservatism of the early Bush II years--which Ryan's proposal so far largely resurrects--won't be adequate for today's "more difficult [economic] circumstances," in which long-lasting unemployment is less attributable to bad personal decisions and social environments than it was, and more attributable to broad structural features of the economy:

In 1999-2000, it seemed realistic to draw a sharp line of distinction between the vast majority of adults willing and able to work full-time—and thereby earn a living somewhere north of the poverty line—and the small minority of adults whose bad choices or bad situation rendered them dependent on public assistance. But for half a decade now, that distinction has looked blurry. The specific problem of poverty among those who don’t work full-time is no longer so easily separated from the broader problem of pervasive economic insecurity among those who do.

Frum makes several suggestions, in the vein of Douthat/Salaam "reform conservatism," for how conservatives can compete in the upcoming policy debates. (Among other things, support the earned income tax credit and mother's allowances; oppose minimum-wage raises, universal pre-K education, and immigration reforms that would keep the market for labor soft.)

The poise and patience of Ryan Anderson

I marvel at Ryan Anderson's poise, patience, and brilliance in defending marriage as a conjugal partnership--which is to say, defending marriage--in the face of hostile critics.

http://dailysignal.com/2014/07/25/ryan-t-anderson-responded-gay-man-wants-redefine-marriage/ 

Demagoguery

I was just reading about how the cause for the canonization of Pope John Paul I is advancing in Rome.  This on the heels of the announced beatification of Pope Paul VI in October and the recent canonizations of Pope John XXIII and Pope John Paul II.  Only Pope Francis and Pope Benedict XVI among the pontiffs to reign during or after the Second Vatican Council are not either declared saints or current candidates for sainthood.  Meanwhile, Pope Francis has reminded us that the cause for Ven. Pope Pius XII, who lived and reigned before the aforementioned Council, is stalled, and it was only recently that the Vatican website actually acknowledged the fact that Pope Pius X, who also blessedly lived and reigned before the aforementioned Council, was declared by the Church to be a saint (in 1954).  My understanding is that Sarto became a  saint even while living in the Papal Apartment, the high cost of frugal living perhaps not appealing to the greatest Pope of the twentieth century.    

Monday, July 28, 2014

R. George and J. Doig concluding essay in marriage debate

My friend and colleague Jameson Doig and I concluded our week long Public Discourse debate on marriage with a joint essay, posted on Friday of last week:

http://www.thepublicdiscourse.com/2014/07/13532/

Split panel of Fourth Circuit holds Virginia's marriage laws violate a fundamental individual right, protected by the Due Process Clause, to marry a same-sex partner

A split panel of the United States Court of Appeals for the Fourth Circuit held today that Virginia's definition of marriage to require a man and a woman violates the Due Process Clause. Judge Floyd wrote the opinion for the court in Bostic v. Schaefer, in which Judge Gregory joined. Judge Niemeyer authored a dissent. 

I hope to have more analysis of the case down the road. My initial reaction is that the court's analysis in terms of fundamental rights presents a doctrinally clearer picture of the arguments on both sides.

If Glucksberg supplies the right framework of analysis (as I believe it should), then the majority's conclusion is untenable for the reasons set forth in Judge Niemeyer's dissent. The panel majority distinguishes Glucksberg by saying that Glucksberg's analysis "applies only when courts consider whether to recognize new fundamental rights." The crucial move, then, is the court's determination that "the fundamental right to marry encompasses the right to same-sex marriage." And that determination turns on a reading of Lawrence and Windsor. These decisions, Judge Floyd says, "indicate that the choices that individuals make in the context of same-sex relationships enjoy the same constitutional protection as the choices accompanying opposite-sex relationships." Yet this attempt to harmonize Lawrence and Windsor with Glucksberg is unpersuasive. Those cases simply ignore Glucksberg and its fundamental-rights-based analysis rather than supply guidance for how to define the scope of fundamental rights.

Given how the Fourth Circuit decided this case and the fact that it is from Virginia, Bostic may turn out to be an attractive vehicle for a range of Justices. It is reasonable to assume that Justice Kennedy will probably continue to ignore Glucksberg's analysis. Yet this Virginia case provides a promising vehicle for maximizing the likelihood that the Court must confront its doctrinal incoherence in the substantive due process arena. After all, there would be something awkward about a Supreme Court decision that ignores the basic concept of a "fundamental right" that the lower court in a case like this thinks the Court's doctrine requires it to use. On the other side, those Justices interested in recognizing a constitutional right to same-sex marriage may be attracted by the symbolic significance of deciding same-sex marriage out of the same state that supplied Loving v. Virginia

Second Circuit upholds display of 9/11 cross in the National September 11 Museum

A panel of the United States Court of Appeals for the Second Circuit today unanimously upheld against Establishment Clause challenge the display of a 17-foot cross from the wreckage of the World Trade Center in the National September 11 Museum. (HT: @Edmannino) The decision also rejects an Equal Protection Clause challenge premised on the denial of funds for an accompanying symbol commemorating atheists. Judge Raggi wrote the opinion for the court in American Atheists, Inc. v. Port Authority of New York and New Jersey, in which Judge Lynch and Judge Chin joined. 

From the opinion's concluding summary:

1. Displaying The Cross at Ground Zero in the National September 11 Museum does not violate the Establishment Clause because:

a. the stated purpose of displaying The Cross at Ground Zero to tell the story of how some people used faith to cope with the tragedy is genuine, and an objective observer would understand the purpose of the display to be secular;

b. an objective observer would not view the display as endorsing religion generally, or Christianity specifically, because it is part of an exhibit entitled “Finding Meaning at Ground Zero”; the exhibit includes various nonreligious as well as religious artifacts that people at Ground Zero used for solace; and the textual displays accompanying the cross communicate its historical significance within this larger context; and

c. there is no evidence that the static display of this genuine historic artifact excessively entangles the government with religion.

2. In the absence of any Establishment Clause violation or any evidence of discriminatory animus toward atheists, the Museum did not deny equal protection by displaying The Cross at Ground Zero and refusing plaintiffs’ request to fund an accompanying symbol commemorating atheists.

The outcome seems plainly correct. The court's extensive reliance on Lemon and relatively light discussion of Town of Greece will be disappointing to those (like me) who think the methodological approach of Town of Greece should apply to Establishment Clause analysis beyond legislative prayer.

Saturday, July 26, 2014

One Response to Michael about Blaine Amendments

Michael, you raise a good question about whether Blaine Amendments might be a "blessing in disguise" because they--albeit "unintentionally"--"shield many primary and secondary schools" from the choice to "capitulate to the secular orthodoxy or ween yourself from the government teat."

These are hard questions for schools. In a paper for a conference in Rome a few years ago, I presented various considerations, including the possibility that "withholding state financing to religious schools can affect their integrity and vitality as much or more as providing funds with conditions and controls attached":

When religious schools are denied financing while state [and secular private] schools receive it, parents face powerful financial disincentives against choosing religious schools for their children. To overcome that disadvantage, religious schools may have to change their programs to attract more donations, more applications, or more full-tuition-paying students instead of low-income students—all of which may compromise the school’s mission to teach the faith or educate the poor. Or schools may have to close altogether. Early in 2009, American newspapers reported that four Catholic secondary schools in New York City had been forced by fiscal necessity to join the state system as so-called charter schools. The change would permit them to receive funds but would require them to eliminate their religious components entirely, not just in selected classes as Supreme Court decisions like Lemon had required.

So I have a few reactions to your question:

1. To preserve their ability to choose their mission, Catholics and other religious groups should certainly try to increase their schools' financial independence so they are less exposed to the difficult choice of taking aid with strings or losing equal aid.

2. Nevertheless, whether the schools' integrity and vitality will be more threatened by taking aid or losing it depends on the situation, and on the kind of strings. Therefore, parents and schools should have the choice, even if the state has structured it as less than ideal. Blaine Amendments wrongly take the choice away from them.

3. If the societal opposition to Catholic or other religious doctrines and policies is so strong, it may not stop at putting strings on funding. Catholic and evangelical schools that violate antidiscrimination norms may face damages awards and fines even if they don't receive funding. Catholic schools have to figure out how to respond to that problem, entirely apart from Blaine Amendments.

(This sets aside, of course, the argument that secular regulation, such as nondiscrimination law, may sometimes actually push a school toward a better position even under Catholic teaching properly understood--the discrimination may be "unjust." But obviously how to understand Catholic teaching is for the school and religious leaders to decide, not the state.)

Winters on Paul Ryan's Anti-Poverty Proposal

Michael Sean Winters has an excellent post welcoming Paul Ryan's proposal as a potential return by Republicans to serious discussions about how to assist and empower the poor. Michael Sean closes

by recalling the talk delivered by Bishop Robert McElory at John Carr’s Initiative on Catholic Social Thought in Public Life at Georgetown, in which +McElroy called for Catholics to become “insurgents” within their own parties. Ryan did that yesterday. I think he has further to go: I do not see how anyone committed to Catholic social teaching can fail to see the need to raise the minimum wage, for example. But, Ryan deserves great praise for taking on the issue and for putting forward ideas and for inviting criticism and continued debate. ... Shame on all of us if we do not seize this moment to remind the American Christian community that Matthew 25 says nothing about a rising middle class, and that we welcome anyone, but most especially Cong. Ryan, to the discussion our nation has for too long avoided: How do we continue the fight against poverty in ways that will actually help the poor?

Friday, July 25, 2014

Are We No Longer Shocked By Victimization?

It has been over 100 days - 102  days to be exact.  102 days since Boko Haram kidnapped over 200 girls and threatened to sell them into sexual slavery.  I worry that in today’s 24-7 news cycle that fact has become “yesterday’s news.” 

As a human trafficking scholar I think a great deal about the parallels between the slavery of today and the Trans-Atlantic slave trade in the 18th and 19th centuries. I have considered the role of the bystander in both these systems, trying to imagine how it was possible for people - particularly the bystanders - to justify the ownership of human beings as property.  It is difficult to wrap one’s mind around the concept that it was acceptable and not shocking to abduct, buy, and sell other people.    

And then 100 days pass since these girls were abducted and threatened to be sold and it seems as though this terrible crime is no longer at the forefront of the American consciousness.   It is perhaps no longer shocking.

Three months after the crime, Malala Yousafzai visited Nigeria and met with President Goodluck Jonathan  who claimed he would bring back the girls “as soon as possible.”  Well, apparently “as soon as possible” means right after he finishes spending $1.2 million, not on the rescue effort, but on hiring the American public relations firm, Levick, to improve his image.  It seems to me that such an amount of money may have been better spent actually trying to rescue the girls…rather than paying Americans to explain why the government has not done so.  If that is “as soon as possible” I would hate to see what “when I get around to acknowledging it happened” looks like.

Yet, the outrage is gone.  The shock is gone.  We in the West seem to have largely moved on to other issues.  How can this be?  It may be because on some level we accept the objectification of people…just like bystanders accepted slavery centuries ago. 

Some reject the parallels drawn between human trafficking and the Trans-Atlantic slave trade, asserting that there is an important distinction between legally sanctioned slavery and that which is not state  supported.  These events underscore that laws do not the society make.  While it is indeed symbolically important to end laws that sanction slavery or other moral wrongs, it is necessary but not sufficient.  A legal shift is interesting but a social shift is what is required.  And we in the West seem not to have made that shift. 

While I support Pope Francis’ bold call for human trafficking to explicitly be treated as a crime against humanity it will amount to nothing until we as a global society truly value the lives of such victims as though they were our own children…until the shock lasts longer than a week, a month, or 102 days.  Until that day comes the parallel between the bystander in the 1800’s and the rest of us unavoidable.