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.

Monday, May 5, 2014

Taking Religious Freedom Seriously

By Thomas Berg

I'm struck by a couple of the eloquent passages in Kagan's dissent in Town of Greece:

The not-so-implicit message of the majority’s opinion—“What’s the big deal, anyway?”—is mistaken. The content of Greece’s prayers is a big deal, to Christians and non-Christians alike. A person’s response to the doctrine, language, and imagery contained in those invocations reveals a core aspect of identity—who that person is and how she faces the world ....

I would treat more seriously the multiplicity of Americans’ religious commitments, along with the challenge they can pose to the project—the distinctively American project—of creating one from the many, and governing all as united.

In Hobby Lobby, and in other cases about free exercise rights, we hear people on the left arguing "What's the big deal, anyway?"  Nobody--so the argument goes--is forcing Hobby Lobby's owners to use  contraceptives/potential-abortifacients, or administer them, or endorse their use, and including them in an insurance policy is not much different than paying a salary to an employee who will use it for contraception; likewise, nobody is forcing Catholic institutions to host or perform same-sex marriages, or to say they are good, so what's the real impact on religious commitments?  And also, "What's so special about religion?  People have lots of objections to government policies and don't get to claim an exemption."

Kagan's identification of religious belief as a "core aspect of identity" helps answer why it's a big deal, and why religious objections to majoritarian policies are distinctive.  The depth and comprehensive nature of a religious belief, for someone who believes it strongly enough to stand up for it, means that the person suffers a serious burden to his/her integrity when pressured to act in ways inconsistent with the belief.  I wish the majority had give more weight to this in today's case where the objection was to the government's implementation of a policy concerning religious acts (prayers).  And I hope that it presages that in Hobby Lobby, Kagan will take the business owners' objections to a secular government policy seriously and at least vote to require a strong reason to override them.

Religious Liberty Appellate Clinic at St. Thomas

By Thomas Berg

This spring we began a new Religious Liberty Appellate Clinic at St. Thomas, under my supervision, offering four to six law students each year the opportunity to draft briefs in important religious liberty cases, typically on behalf of national civil liberties and religious organizations filing as amicus curiae. The clinic gives students an intensive experience in formulating, writing, and refining appellate arguments, with review by experienced advocates, and in the strategy of framing arguments by amici, who (as many readers know) typically present distinctive information or issues that may benefit the judges deciding the case.

We just submitted our first two briefs, in cases in the Sixth and Seventh Circuits, and I'm really proud of the work the first two students have done.

The first brief, drafted by student Julie Cayemberg, was filed in the Seventh Circuit in Freedom from Religion Foundation v. Lew, a challenge to the constitutionality of the federal tax-code provision that allows ministers to exclude from their taxable income a cash allowance they receive from their church employer for housing.  The brief defends the housing-allowance exclusion based on the principle that government may treat ministers differently from other occupations in order to serve important church-state values—in this case, the value of treating all clergy and churches equally, since ministers who live in a church-owned parsonage are already able to exclude that benefit from their income.  The brief also emphasizes that invalidating the allowance would seriously harm retired and near-retired ministers who, “in good faith, structured their finances and their retirement planning around a section of the tax code extant in its current form for 60 years.” 

The second brief, drafted by student Nicole Swisher, was filed in the Sixth Circuit in Child Evangelism Fellowship v. Cleveland School District, a case involving the First Amendment right of a private religious club for elementary school students to meet in public schoolrooms on the same terms as the Boy Scouts, who the school permits to use the rooms without paying a fee.  The school district asserts that it has an “in kind” arrangement under which the Scouts receive free use in return for providing Scouting materials free of charge to participants in the Scouting program; the religious club points out that it too provides its materials free of charge to its participants but was never told by the district that any such in-kind arrangement was available.  The amicus brief explains, by reviewing multiple cases over the last 25 years, that the district’s unpublicized in-kind arrangement fits a pattern of efforts by school districts to evade the requirement that they give equal access to expressive groups with religious viewpoints.

The briefs were filed on behalf of coalitions of groups including, among others, the Christian Legal Society, the National Hispanic Christian Leadership Conference, and the National Association of Evangelicals (both cases); the Queens Federation of Churches (Seventh Circuit case); and the Southern Baptist Convention and the General Conference of Seventh-Day Adventists (Sixth Circuit case).

Town of Greece: Some Opening Thoughts from Me

By Thomas Berg

Thanks, Marc and Rick, for kicking off discussion about Town of Greece.  The opinions offer something of note on the many varied issues that we varied bloggers emphasize.

Justice Kennedy—the deciding vote as usual—wrote the majority opinion to approve legislative prayers, based on the long tradition of conducting them, but also to leave some room to challenge them in another case if “the course and practice over time shows that the invocations denigrate nonbeliev­ers or religious minorities, threaten damnation, or preach conversion.”  These qualifiers create a real tension in the opinion.  The Court refused to require that each prayer be “nonsectarian” (for example, to forbid prayers given “in Jesus’ name”), on the ground that this would require legislatures and reviewing courts “to act as supervisors and censors of religious speech,” with no consensus as to what is “sectarian.”  The way to achieve fair treatment across religions, the Court says, is to have prayers from different faiths, not to drain the specific content from each prayer.  I’m quite sympathetic to that holding.  But to suggest that prayers may not “preach conversion” or warn about damnation likewise invites supervision and censorship—while on the other hand, placing no limits on such prayers can lead to highly divisive controversies for relatively little gain.  Moreover, there is likewise a lack of consensus—indeed, there is sharp disagreement—over when a particular prayer is becomes “denigrating” or “proselytizing.”  The brief I joined with other scholars criticizing legislative prayers provides evidence  that these problems will be (because they have been) non-trivial and recurring.  Why is the Court OK with one kind of censorship and division but not another?

Marc’s answer (and, for the most part, the Court majority’s) looks to tradition to sort out those questions.  We have a history of allowing prayers in Jesus’s name, but also of reacting against prayers that “attack” others.  Even though drawing content-based lines in either case involve similar logical problems, a lot of Americans—and the Court—seem to be comfortable with the distinction and muddling through under it.  And Rick rightly continues to remind us that no course of action will avoid division—so the answer may be, as the Court says, to intervene only when “a course and practice over time” shows denigration of minorities.  That standard pretty much limits future challenges to places dominated by one faith where officials make no effort to be open to or respectful of others.

Still, in all of these cases involving practices of “civil religion,” I remain uncomfortable when their proponents—who are mostly religious believers—show confidence in majority rule and dismiss arguments that the impacts upon religious minorities are a special matter of concern.  As I’ve written in various contexts before, if traditional/orthodox believers want the burdens they experience from government policy like the HHS mandate to be given distinctive weight, they should give also distinctive weight to the burdens of other minorities, including those felt by someone who experiences a prayer he deeply disagrees with at the beginning of a public meeting where he is presenting his case to the decision makers.  The propositions “Let the majority decide” and “Religion is like other issues” are very harmful to claims on the free exercise side—which is increasingly where traditionalist Christians will have to seek protection, as the news discussed on this blog confirms almost daily.

Predictably, I’ve been asked by reporters about what Town of Greece means for the contraception-mandate cases.  It’s hard to draw much from an Establishment Clause decision to predict a decision on the “free exercise” side of religious-liberty matters.  I think the Court should strive for more of a consistent vision of the two clauses, but it still tends to see them as distinct matters. 

With that said, one possible general lesson from Town of Greece is that in disputes over religion the Court will allow the majority to act in ways that promote “shared ideals and common ends” (to use the Court’s words) even if that affects religious dissenters.  That theme would suggest the Court will be reluctant to overturn the federal mandate on commercial employers to cover contraception.  That’s the majoritarian strain in the Establishment Clause debate that worries me for free exercise (RFRA) rights.

I recognize there’s a very different perspective on this: an argument that ceremonial invocations of religion support meaningful free exercise by affirming that faith is not simply an insular, private matter but may be carried into civil society, so that free exercise accommodations are not limited to churches and clergy but extend to religious institutions that engage in activities of a civic nature such as education and social services.  (I explored that line of argument here.)  And Town of Greece contains a passage with some bearing on this.  The Court finishes by saying that ceremonial prayer recognizes “that, since this Nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government to alter or define and that willing participation in civic affairs can be consistent with a brief acknowledgment of their belief in a higher power.”  In the contraception cases, the objecting employers argue that they should able to follow their duties to a higher power even as they participate in a “civic” activity such as economic life.  This vision—that religious practice is not confined to insular private spheres—is more hospitable to the business owners challenging the mandate.

In the end, for the reasons in the last-linked article above, I think we have to maintain a distinctive sympathy for religious objectors on the establishment side—for a number of reasons, but partly in order to maintain a distinctive sympathy for religious objectors on the free exercise side.  You can allow legislative prayer and still keep that distinctive sympathy, but you have to be careful.

Legislative prayer, "division," and "strife."

By Rick Garnett

To Marc's outstanding analysis I would just add that, in both of the dissenting opinions, the notion that because American church-state law reflects in part a widespread desire to avoid "political divisions along religious lines" and other forms of "strife" and "division" it follows that courts should (a) speculate about the possible "divisiveness" of a policy and (b) invalidate as unconstitutional those that it oberves or predicts to be "divisive" seemed to be doing significant work.  As I have argued, this is unfortunate:

Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state programs or policies could excessive(ly) - and, therefore, unconstitutionally - entangle government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions and activities, but also through what he called their divisive political potential. Chief Justice Burger asserted also, and more fundamentally, that political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. And from this Hobbesian premise about the inten(t) animating the First Amendment, he proceeded on the assumption that the Constitution authorizes those charged with its interpretation to protect our normal political process from a particular kind of strife and to purge a particular kind of disagreement from politics and public conversations about how best to achieve the common good. 

This Article provides a close and critical examination of the argument that observations or predictions of political division along religious lines should supply the content, or inform the interpretation and application, of the Religion Clause. The examination is timely, not only because of the sharp polarization that is said to characterize contemporary politics, but also because of the increasing prominence of this political division argument. . . .

The Jurisprudence of Tradition: 10 Points on Justice Kennedy's Opinion in Town of Greece

By Marc DeGirolami

Having read the decision, I thought I'd write up three separate posts on Town of Greece v. Galloway. This first post discusses Justice Kennedy's opinion for the Court. The next one will talk about Justice Kagan's dissent and Justice Alito's concurrence. The final post will discuss Justice Thomas's concurrence (joined in part by Justice Scalia).

Here are 10 points on Justice Kennedy's opinion. The opinion was joined in full by Chief Justice Roberts and Justice Alito. It was joined by Justices Scalia and Thomas except as to Part II(B).

1. By far the most prominent theme in Justice Kennedy's opinion is the role of tradition and historical practice in validating the practice of legislative prayer. That point is repeated no less than six or seven times in all kinds of contexts. The practice is "part of our expressive idiom" and our "heritage." Justice Kennedy writes that "Marsh is sometimes described as "carving out an exception" to the Court's Establishment Clause's jurisprudence," inasmuch as no "tests" were applied in Marsh, but in reality, "[t]he Court in Marsh found those tests unnecessary because history supported the conclusion that legislative invocations are compatible with the Establishment Clause" That's important. It indicates that the mode of analysis in Marsh was not a carve-out, so much as the place where all Establishment Clause analysis begins, and, under certain circumstances, where it ends.

2. Note the emphasis on both history and particularism in the following: "Marsh stands for the proposition that it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted....A test that would sweep away what has so long been settled would create new controversy and begin anew the very divisions along religious lines that the Establishment Clause seeks to prevent." Very interesting. The claim seems to be that it is the rigidity of the tests themselves in this area, and their failure to grant a kind of presumptive validity to entrenched social practices and traditions, which itself generates religious division.

3. In keeping with points #1 and #2, neither the Lemon test nor the endorsement test figure in Kennedy's analysis at all. There is only a whisper of endorsement in Kennedy's claim in Part II(B) (which JJ. Scalia and Thomas did not join) where he writes that "[i]t is presumed that the reasonable observer is acquainted with this tradition and understands that its purposes are to lend gravity to public proceedings and to acknowledge the place religion holds in the lives of many private citizens, not to afford government an opportunity to proselytize or force truant constituents into the pews." That certainly doesn't mean that these tests are dead. They just are largely MIA.

4. Framing: Everybody--Justice Kennedy, Justice Kagan in dissent (of which more soon), and the parties--seems to have accepted the following framing by the Court: "The Court's inquiry, then, must be to determine whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the state legislatures." No member of the Court resisted this framing or opined that this was an inappropriate or wrong-headed sort of inquiry.

5. "Sectarian" prayers: "An insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer outlined in the Court's cases." The Court here disavows the claim that only nonsectarian prayers are within Marsh's compass. Again the basis for the claim is in part historical: "The decidedly Christian nature of these prayers must not be dismissed as the relic of a time when our Nation was less pluralistic than it is today." The growing diversity of the country embraces a kind of deep substantive pluralism as well. The County of Allegheny dictum characterizing Marsh as it did--relying, that is, on the fact that the chaplain in Marsh "removed all references to Christ"--is also repudiated by the Court. Kennedy writes: "Marsh nowhere suggested that the constitutionality of legislative prayer turns on the neutrality of its content."

6. Entanglement and majoritarianism in supervision: Kennedy further remarks that requiring the Court to supervise the content of prayers would demand government over-involvement in religious matters. The cite here is to Hosanna-Tabor, not to Lemon. It would also inevitably result in majoritarian favoritism, as courts would demand words acceptable only to a majority, the effect of which would be to exclude a minority.

7. Limits: the limits on the acceptability of legislative prayer seemed to be those which "over time...denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion." Also, where "many present may consider the prayer to fall short of the desire to elevate the purpose of the occasion and to unite lawmakers in their common effort."

8. Note the words "over time" in the previous statement. Although plaintiffs presented some evidence that two of the prayer practice occasions did not serve the traditional functions of legislative prayer as formulated by the Court, these two occasions "do not despoil a practice that on the whole reflects and embraces our tradition. Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a prayer will not likely establish a constitutional violation." That is quite a different test than any that existed before. Moreover, the fact that nearly all of the congregations in town are Christian and therefore are substantially represented--or over-represented--in the legislative prayer practice does not itself render the practice unconstitutional: "So long as the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing."

9. On the claim that this case could be distinguished from Marsh on the ground that civilians are coerced to participate, the plurality says that the principal purpose of legislative prayer "is largely to accommodate the spiritual needs of lawmakers and to connect them to a tradition dating to the time of the Framers....The analysis would be different if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person's acquiescence in the prayer opportunity."

10. Finally, Lee v. Weisman, which Justice Kennedy authored, is distinguished on the ground that nobody is dissuaded from leaving the meeting room during a prayer, arriving late, or making a later protest. Such activities occur regularly and pass without notice. Quiet acquiescence, in this context as compared with the school context, "does not suggest agreement with the ideas and words expressed."

Supreme Court Upholds Legislative Prayer Against Establishment Clause Challenge

By Marc DeGirolami

The Supreme Court has ruled in favor of the Town of Greece in Town of Greece v. Galloway, a case involving the constitutionality of the practice of legislative prayer. The decision is here.

I will have more comments on the decision after having read it through. Suffice it to say for now that the language and jurisprudence of tradition figures extremely prominently in both Justice Kennedy's plurality opinion and in Justice Kagan's main dissent. 

Sunday, May 4, 2014

Jim Oberstar RIP

By Thomas Berg

Jim Oberstar, the longtime Minnesota congressman who died Saturday at age 79, represented several great strains in American public life that we need to recall and revitalize. Oberstar was a hero of mine before I came to Minnesota a dozen years ago, and it is one of my joys to hold a professorship named for him and supported by donors who rightly wanted to honor his service. Let me say a bit about the values he represented.

Jim Oberstar believed in the capacity of government to increase people’s opportunities to realize their dreams. Raised on the Iron Range as a miner’s son, he knew the help that public works, labor unions, and other features of the New Deal had brought to average Americans. In strongly affirming government’s positive role, he strongly disagreed with many of his fellow legislators. But in these conflicts, he was one of those members, on both sides of the aisle, who viewed public policy as a serious matter—as a means to seek the common good, not simply partisan advantage. As a leading member and ultimately chair of the House Transportation Committee, “he was held in high regard by Republicans,” the Washington Post reports, “because he sought to keep issues before the Transportation Committee free of partisan rancor.” We certainly need to revitalize that spirit today.

I saw Oberstar’s geniality expressed several times, most recently last spring when he visited St. Thomas, his alma mater, and had lunch with law students. He spoke to them about how to move a bill through the House of Representatives, but also about his life-long interest in French culture: his graduate studies in Belgium and Quebec, his time as a young man teaching in Haiti. He modeled for them a life well lived, one continually open to learning and to service.

He also believed passionately in the importance of infrastructure to both economic and cultural life. He was a leader in supporting the development and improvement of systems from air transportation to bridges to urban bike paths. Today crumbling parts of our infrastructure call out for work to repair and modernize them, while millions of Americans look for work to make a living and contribute to society. These needs often overlap, and we might be able to address some of them together if we combined Jim Oberstar’s passion for building with his practical ability to find solutions among people of diverse views. 

Last but certainly not least, Oberstar represented the pro-life position within the Democratic Party. He ran for the Democratic-Farmer-Labor nomination for Senate in 1984 and was defeated in part because he would not adopt the pro-choice position that was becoming increasingly dominant within the party. In a 2005 address at the St. Thomas law school (available here), he cited Joseph Cardinal Bernardin’s metaphor of the “seamless garment of life” and stated that “it is not sufficient to be opposed to abortion: we must also support pre- and post-natal care of mother and child; we must advocate for education, health care, jobs with a livable wage, housing and food for the needy; oppose the death penalty; and resist unjust war.” For Jim Oberstar, protecting the unborn was of one piece with protecting the vulnerable in other aspects of life: an essential component of the common good. We desperately need to strengthen that voice today, calling Democrats back to apply to the unborn their concern for “the least of these,” and calling all of us to an ethic of care supporting all those in need and reducing the situations that drive women to feel they need abortions. 

That 2005 address came at the close of a St. Thomas Law Journal symposium on “the seamless garment” and “the future of pro-life progressivism.” In it Oberstar, a Catholic, spoke of the challenges of applying one’s faith to politics; he concluded by reminding us of the priorities the Bible sets forth. "In all that I undertake in public life,” he said,

I am guided by the firm belief that, at the end of life, we will be judged, not by the volume of grain in our bins, not the size of our budget surplus, nor the might of our armies. We will be judged by: 

I was hungry and you gave me food. 

I was thirsty and you gave me drink. 

I was a stranger and you made me welcome. 

I was naked and you clothed me. 

Thank you, Jim Oberstar, for all you stood for, and stand for.

Saturday, May 3, 2014

The Dignity of Self-Directed versus Other-Appropriated Labor

By Steve Shiffrin

Rick's and Susan's moving words posted just after May Day remind me of what I found so compelling, during my youth, in Marx's reflections on labor and human action first in the 1844 Manuscripts, then in the Grundrisse, and finally even in Capital.  The picture of our relation to our own work that emerges in these writings carries the imprint of both a very Aristotelian, and a very Kantian-German-Romantic, conception of human action-in- and on- the world.  It seems to me that this vision remains both very powerful and rather resonant with that conveyed in Rick's  post.  It is also a vision that is difficult to reconcile with the role of and treatment of labor under certain forms of capitalism, including both (a) much, though not all, of today's American rendition of that form of economic arrangement, and (b) much, though not all, of old Soviet 'state' capitalism.  (Today's PRC, interestingly and troublingly, appears to feature many of the most objectionable characterisitics of both of those capitalisms.)

Here is a sample of Marx's writing on labor and its siginficance as articulated relatively late in his life, in Volume I of Capital:

Labour is, in the first place, a process in which both man and Nature participate, and in which man of his own accord starts, regulates, and controls the material re-actions between himself and Nature. He opposes himself to Nature as one of her own forces, setting in motion arms and legs, head and hands, the natural forces of his body, in order to appropriate Nature’s productions in a form adapted to his own wants. By thus acting on the external world and changing it, he at the same time changes his own nature. He develops his slumbering powers and compels them to act in obedience to his sway. We are not now dealing with those primitive instinctive forms of labour that remind us of the mere animal. An immeasurable interval of time separates the state of things in which a man brings his labour-power to market for sale as a commodity, from that state in which human labour was still in its first instinctive stage. We pre-suppose labour in a form that stamps it as exclusively human. A spider conducts operations that resemble those of a weaver, and a bee puts to shame many an architect in the construction of her cells. But what distinguishes the worst architect from the best of bees is this, that the architect raises his structure in imagination before he erects it in reality.

There is of course in this passage a residue of Hegelian 'oppositional' thinking that is a bit violently and unfortunately nature-denigrating in my view, but the Aristotelian and Kantian resonance seems to me unmistakable too.  Counterpart passages in the Manuscripts and the Grundrisse, moreover, written as they were earlier in Marx's life before the long, ultimately unsuccessful struggle with cigar-chomping robber barons, dreamily ineffectual 'utopian socialists,' and 19th century counterparts to today's NSA had embittered and hardened his heart to the degree that they ultimately did, read even more beautifully.

In any event, here is more of the chapter of Capital from which the above quote is taken:   

https://www.marxists.org/archive/marx/works/1867-c1/ch07.htm

And here is a very interesting reflection, posted at the Westminster College webpage, both on the early Marx's understanding of labor and on its resonances with the thought of the Romantics: 

 

 

Friday, May 2, 2014

2014 report of the U.S. Commission on International Religious Freedom

By Robert George

Excellent coverage by the Baptist Press of the recently released 2014 report of the U.S. Commission on International Religious Freedom:

http://www.bpnews.net/42486/uscirf-religious-liberty-law-needs-revision

St. Joseph the Worker, communism, and labor unions [updated]

By Rick Garnett

I'm a day late, so I missed the chance to re-post this (at least, to re-post it on time).  It links to, and then quotes in full, a nice piece that Susan Stabile wrote, in 2009, for her wonderful Creo en Dios blog.  Here is Susan's text:

Today, the Catholic Church celebrates the memorial of St. Joseph the Worker, one of two days in the church calendar on which we honor St. Joseph.  The memorial was instituted by Pope Pius XII, some say in response to Communist-sponsored May day celebrations for workers.  It is a day dedicated to the dignity of labor and to honoring workers.

Work is central to who we are as human persons.  As our friend Randy Lee once put it, "man does not work because he does not have the wealth stored up to be constantly at rest; man works because his dignity is in creating."  Gaudium et spes speaks of work as the means by which humans develop themselves and in <em>Centesimus Annus</em>, Pope John Paul II observed that humans express and fulfill themselves by working.

This view of work stems from our creation in the image of God; created in the image of God, human are called to co-create the world with God.  We participate in the act of creation, we share in God's creative activity, through our work. 

On this day on which we remember St. Joseph the Worker, we pray in a special way for all workers and we pray that we may develop and use the gifts God has given us to do the work to which He has called us.

[UPDATE:  In the original version of this post, I failed to copy the text from my 2013 post which indicated that I was quoting Susan Stabile's 2009 post.  (That's quite a sentence.)  Regular readers probably noticed the much-improved prose in the quoted material ("Today, the Catholic Church celebrates . . .") but, in any event, I apologize for my mistake and for causing any confusion.] 

I note that my friend and neighbor, Patrick Deneen, posted a May Day essay at The American Conservative, called "How Red (State) is Marx?", in which he (among other things) identified "the kind of Marxism we need today. People who really want to work, make things, build families and communities and dig deep roots—Unite!"  I get the point, but, for me, what some (with justification) call Victims of Communism Day is not the best day for those who believe in human dignity to talk about what "Marx got . . . admirably right."  Even if it is true -- and I think that Patrick overstates the point -- that "capitalism is unforgiving to 'conservatives,' those who care about neighborhood, Church, family, loyalty, tradition" (what "Marx got . . . right"), I regard it (cue the "neo-con!" and "Randian!" charges, I guess) as beyond reasonable dispute that the triumph of democratic capitalism (in the substantially regulated form it takes today) over Marxism (etc.) in the economic order is a good thing . . . . and something that makes it possible for more people to actually, [UPDATE:  in Susan Stabile's words,] "use the gifts God has given us to do the work to which He has called us."

My friend Michael Sean Winters also remembered to celebrate St. Joseph the Worker on the correct day, and he posted a piece about the "long, profound relationship between Catholicism and workers and specifically organized labor" that, in his view, needs to be "central again."  I won't bore readers (or Michael Sean) with my often-expressed view that it is not "libertarian" (or Randian, or neo-conservative, or right-wing) to insist that respect for work and workers, and for the rights of workers to associate and advocate for their interests, does not require (indeed, today, it cannot require) support for all of the political and policy goals of organized labor -- especially the hostility of teachers unions to school choice -- in America today.  (I do not think, by the way, that it is accurate to say, as Michael Sean does, that "organized labor is the only part of the left-liberal political coalition that has never signed on to Roe v. Wade."  Different unions and organizations that are part of "organized labor" have taken different positions, and some -- not all, true -- have supported the right to abortion and opposed regulations of abortion.) 

I also think that it is both appropriate and important to distinguish, for purposes of thinking about the implications of the Church's teachings regarding the dignity of work and workers, between public-employee unions and private-sector unions.  (The point, obviously, is not that public-sector work and workers are less worthy of respect but that the dynamic between employer and employee is meaningfully different and different in ways that are relevant to evaluating the positions, and the power, of public-employee unions.)   As I wrote a few years ago:

To be clear:  Civil society matters; the human person is relational and situated; work is a participation in the creative activity of God; all human persons, because they are persons, possess a dignity; workers have a right to associate, organize, and advocate (consistent with public order and the common good) for their interests; and profit-maximization is not a moral-trump.  Labor unions helped bring about many good things; opponents of labor unions have often done bad things.  It would be wrong for a political community to prohibit or unreasonably burden the freedom of association that workers (like the rest of us) enjoy.  In other words, much of what left-leaning Catholics like Michael Sean Winters andMorning's Minion and Lew Daly have been saying about labor-related matters is true.

But . . . just as "subsidiarity" is more than a slogan about "small government", the writing and thought of Leo XIII on the social question and the social order is not reducible to "unionism, as presently defended and advocated for in early 21st century America, is to be supported by faithful, thoughtful Catholics."  It's not that unions were once necessary, but now they are not.  It's that unionism is to be supported by faithful, thoughtful Catholics when it is consistent with, and actually carrying out, Catholic Social Doctrine, and not (or, at least, not necessarily) when it is not.  To resist overreach and bad-acting by unions is, well, to resist overreach and bad-acting; it's not to stomp on Rerum novarum.

In my view, it is vital to keep in mind, as we try to think with Christ and the Church -- and not with either the Chamber of Commerce or the Democratic Party -- about union-related policy, to take into account (to the extent we can) the costs and benefits of proposals and practices, and to look at what unions are, and are not, actually doing with the power they have, and not merely to wield a "the Church teaches that unions are good" stamp.  In fact, unions and unionism are sometimes bad (just as religious freedom -- which is good -- is sometimes abused). 

For example:  In the United States, teachers unions are, on balance, definitely not good.  They have, historically, been a powerful force for anti-Catholicism and the obstruction of reforms, including reforms that the Church clearly teaches are morally required.  It is a grave injustice to require parents who want their children to be educated in (reasonably regulated and reasonably well performing) Catholic schools to pay twice (that is, to deny public funding to those parents).  Legislatures should not extend special powers to teachers unions, and they should oppose them to the extent it is necessary to re-orient education-related spending and policy in the best interests of children (and in a way that advances religious freedom and pluralism) and not of public employees who work in government-run schools.  Another point:  It is notgood for unions to use workers’ contributions to support political causes –say, abortion rights – that are not relevant to the association’s purpose and mission.

In any event, here in St. Joseph County, by the St. Joseph River, this member of St. Joseph Parish, whose kids attend St. Joseph Grade School, says . . . St. Joseph the Worker . . . pray for us!   

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