Mirror of Justice

Monday, May 6, 2013

Inazu, "Freedom of the Church (New Revised Standard Version)"

Have a look at our friend John Inazu's insightful new piece, Freedom of the Church (New Revised Standard Version). A methodological theme in John's writing is the importance of excavating the theological assumptions which lie below many of our current legal doctrines and theories, particularly (though not exclusively) in the law and religion context. This piece pursues the Inazian (I would have said Inatian, but that's perhaps too close to Ignatian) theme with respect to Catholic and Protestant ideas about ecclesiastical liberty. Here is the abstract:

Significant discussion about the “freedom of church” has recently emerged at the intersection of law and religion scholarship and political theology. That discussion gained additional traction with the Supreme Court’s ruling in Hosanna-Tabor v. E.E.O.C., which recognized the First Amendment’s “special solicitude” for religious organizations. But the freedom of the church is at its core a theological concept, and its potential integration into our constitutional discourse requires a process of translation. The efficacy of any background political concept as legal doctrine will ultimately stand or fall on something akin to what Frederick Schauer has called “constitutional salience.”

The existing debate over the freedom of the church obscures these insights in two ways. First, its back-and-forth nature suggests that translation succeeds or fails on the level of individual arguments. Second, its current focus on a mostly Catholic argument neglects other theological voices. The kind of cultural views that affect constitutional doctrine are less linear and more textured than the existing debates suggest. This paper adds to the discussion a Protestant account of the freedom of the church: the New Revised Standard Version. Part I briefly sketches the process of translation that any theological concept encounters in the path to constitutional doctrine. Part II summarizes the current debate in legal scholarship about the freedom of the church. Part III introduces the New Revised Standard Version through three prominent twentieth-century theologians: Karl Barth, Dietrich Bonhoeffer, and Stanley Hauerwas. Part IV assesses the possibility of translation, and Part V warns of the theological limits to translating certain theological concepts. The New Revised Standard Version reinforces some of the normative claims underlying the Catholic story, but it does so through a Protestant lens that is somewhat more familiar to American political thought. It also differs from the Catholic account in two important ways: (1) by characterizing the church as a witnessing body rather than as a separate sovereign; and (2) by highlighting the church’s freedom in a post-Christian polity.

Søren Kierkegaard

By Michael Moreland

I was reminded by this excellent post over at Commonweal by my friend Scott Moringiello that yesterday was the bicentenary of the birth of the great Danish theologian Søren Kierkegaard. I visited Kierkegaard's grave while on a visit to Copenhagen a few months ago--as I joked with a friend, for the purpose of telling Kierkegaard he was right all along. Stepping back from the torrent of words (in law and otherwise) around us, there are a handful of indispensable authors for understanding the human condition, and Kierkegaard is, in my view, one of them. A bit from Kierkegaard's journals:

Christianity has been abolished somewhat as follows. Men have entrenched themselves more and more firmly in the fixed idea that Christianity's meaning should be in a trivial sense to make life easier and easier, the temporal easier and easier, something which again is consistent with the fact that the preaching of Christianity has for a long time been, in a trivial sense, an occupation, so these rascally preachers, for the sake of profit, have administered Christianity just as shopkeepers or journalists—nothing better on the market—and therefore the meaning of Christianity becomes in the trivial sense: to make life easier.

Thereby they have succeeded in completely abolishing Christianity, for Christianity is not some physical externality which remains even though untrue affirmations are made about it; no, Christianity is an inwardness which is transformed by the affirmations.

And since Christianity has been abolished this way, the whole realm of the temporal has also come to be muddled, with the result that it is no longer a question of a revolution once in a while, but underneath everything is a revolution which can explode at any moment.

And this is consistent with the fact that we have abolished Christianity as the regulating weight, as weight, of course, but as regulating weight.

It certainly is true, as I have pointed out somewhere else, that the more meaningless we make life, the easier it is, and therefore that life in one sense has actually become easier, not, as the pastors falsify, by means of Christianity, but by abolishing Christianity. But, on the other hand, this nevertheless has its difficulty; when a man or when a generation must live in and for merely finite ends, life becomes a whirlpool, meaninglessness, and either a despairing arrogance or a despairing disconsolateness.

There must be weight—just as the clock or the clock's works need a heavy weight in order to run properly, and the ship needs ballast.

Christianity would furnish this weight, this regulating weight, by making it every individual's life-meaning that whether he becomes eternally saved is decided for him in this life. Consequently Christianity puts eternity at stake. Into the middle of all these finite goals, which merely confuse when they are supposed to be everything, Christianity introduced weight, and this weight was intended to regulate temporal life, both its good days and its bad days, etc.

And because the weight has vanished—the clock cannot run, the ship steers wildly—and for this reason human life is a whirlpool.

Søren Kierkegaard’s Journals and Papers, ed. and trans. Howard V. Hong and Edna H. Hong, Volume I, pp. 437-38.

Reno and Miller on capitalism and conservatism

By Rick Garnett

The exchange at First Things between Rusty Reno and Robert Miller is well worth reading. (Here's Rusty's opener, here's Robert's response, and here's Rusty's reply.) Taken together, I think they shed a lot more light than do the typical "Randian!" and "Socialist!" accusations that fly around conversations about economic policy, including conversations among Catholics who embrace the Church's moral anthropology and social teachings. My own sense is that Reno is right to remind us that the mis-use of "economic freedom" can lead to bad results. But, that's true of freedom generally, and it's not an argument against economic freedom so much as a fact about the world, this side of Heaven, that should be taken into account when designing institutions and policies that, in appropriate instances, constrain that freedom.

Now, Reno says that "conservatives" often don't see this -- that is, they don't see that economic freedom "creates problems." That's not my experience, for the most part. (More common, in my experience, are "liberals" who don't appreciate the real costs of misplaced regulations.) [Update: It was pointed out by a friend and correspondent that this kind of "tu quoque" is both distracting and a bad habit of mine. It is both of these things. To be clear, though, I didn't mean to suggest that the former mistake is somehow excused by the latter.] But, in any event, it is clear that various problems are inevitable by-products of economic freedom and so a challenge for a decent political community is to try to solve those problems.

Miller's essay, I think, does a lot of good things, but what I most appreciate is what I would have thought is his pretty modest point that (paraphrasing) "to attack those who oppose all regulation and believe in unregulated 'laissez faire' capitalism is to attack a straw man. Such attacks should not -- especially in the name of the Church's social teaching -- be made and, instead, we should focus on pushing 'conservatives' to embrace those regulations and policies that enhance the opportunity for genuine flourishing, and respond to the real costs of free markets, and on pushing 'liberals' to realize that government regulations do not justify themselves and that, in some cases, they can do more harm than good." I think this is actually where most people are -- few are "Randians" (even if they are attracted to some libertarian themes and ideas) and few (in America, anyway) are real collectivists (even if they are attracted to some redistributionist or communitarian themes and ideas).

Saturday, May 4, 2013

Django Unchained and Kermit Gosnell: “A Flesh for Cash Business”

By John M. Breen

Rick’s recent post (or re-post) about the movie Gone Baby Gone (here) got me thinking about a recent film and the issues laid bare by the recent trial of Kermit Gosnell.

In an early scene in the Quentin Tarantino’s Django Unchained, a film set in the ante-bellum South, Dr. King Schultz explains to Django – a slave he has acquired who later becomes King’s friend and business partner – just what his line of work is. (The scene is available on YouTube here).

“Do you know what a bounty hunter is?” King asks Django. “Well, the way the slave trade deals in human lives for cash, a bounty hunter deals in corpses. . . . Like slavery it’s a flesh for cash business.”

I don’t know that I would describe Django Unchained as either “Catholic” or “pro-life,” but I do think that Tarantino’s description of bounty hunting is an apt description of the work of Kermit Gosnell, and Planned Parenthood, and everyone involved in the abortion industry – a flesh for cash business.

Friday, May 3, 2013

What Kermit Gosnell and I don't understand

By Robert George

I just finished watching the Fox News special ("See No Evil") on abortionist Kermit Gosnell, who is on trial in Philadelphia for multiple murders and other crimes. Gosnell can't understand how it can be that he is facing prison and possibly even the death penalty for killing the babies whose necks he snipped after they "precipitated" (i.e., emerged from the womb.) The women who came into his clinic came in to have the babies they were carrying killed. That was the point of the exercise. "Terminating" the babies' lives was the service he offered and performed. Had he killed the babies while they were still in their mothers' bodies (by, for example, inserting a needle to inject a poison into their tiny hearts) that would not have been a crime. He merely would have been assisting his patients in exercising what the Supreme Court deems a constitutional right. So why, he would like to know, is he being prosecuted for killing the same babies moments later after they precipitated? I must admit that I am no less puzzled by that question than Gosnell is. How can it be that killing a baby inside the womb is perfectly acceptable while killing the very same baby (or even a baby that is a few days or even weeks younger) outside the womb is first degree murder? Of course, in my view we should not permit the killing of babies inside or outside the womb. A baby's status as a precious member of the human family, possessing profound, inherent, and equal dignity, does not depend on something as morally arbitrary as his or her location. But if we permit the Gosnells of the world to kill babies inside the womb, it seems odd to charge them with murder for killing them outside the womb. This is especially true in view of the fact that inducing delivery and then killing babies marked for "termination" eliminates the risk to women involved in the common abortion practice of dismembering babies inside the womb and removing their severed body parts.

Admiral says

By Patrick McKinley Brennan

Rear Admiral William Lee of the U.S. Coast Guard believes that religious liberty is under threat in the U.S. military. You can read more about what he said here. Now I am just counting down until someone will tell me that the poor Rear Admiral is hysterical (e.g., given to fits of crying), paranoid, and perhaps even delusional.

Religious-freedom protections and marriage legislation in Delaware

By Rick Garnett

A number of law professors (including Tom Berg and I) submitted the other day this letter (Download Delaware letter) to legislators in Delaware, urging them "to ensure that any bill legalizing same sex marriage does not infringe the religious liberty of organizations and individuals who have a traditional view of marriage." This letter is similar to the ones -- which have been posted here at MOJ before -- that the group has submitted in several other states. The letter is basically consistent with the arguments and proposals contained in this recent article, "The Calculus of Accommodation," by Prof. Robin Fretwell Wilson, which I think is very well done.

"Alien:" pejorative or descriptive

By Michael Scaperlanda

The Texas Law Review recently published my essay, "Stirring the Melting Pot: A Recipe for Immigrant Acceptance," reviewing "The Immigration Crucible: Transforming Race, Nation, and the Limits of the Law" by Philip Kretsedemas.

In his book, Kretsedemas suggests that structural-institutional conditions produce immigrant marginality. My response: "Structural–institutional conditions can exacerbate or mitigate immigrant marginality, but they do not produce it. Immigrant marginality is a reality, inherent to the human condition. Believing that institutional or structural changes can eliminate it is simply fanciful utopian thinking."

Within the immigration law professors community, the word "alien" has taken on such a perjorative cast that it is even avoided by casebook authors despite being a statutory term of art. One of the leading casebooks begins with “[T]he word ‘alien,’ even when not adorned with the modifier ‘illegal,’ has always struck a disturbing chord. Many feel that the term connotes dehumanizing qualities of strangeness or inferiority (space aliens come readily to mind) and that its use builds walls, strips human beings of their essential dignity, and needlessly reinforces an ‘outsider’ status.”

I respond that "[e]ven if the term “alien” is in some sense pejorative in labeling an immigrant, in a very real sense “alien” is an appropriate term for describing the relationship between the immigrant and his new country" because "[l]anguage, culture, history, and tradition often create a wide gulf between the migrant and the native. They do not yet belong to each other." The Oxford English Dictionary defines "alien" as “[b]elonging to another person, place, or family; not of one’s own; from elsewhere, foreign.”

This reality is grasped by Wendall Berry in Jaybar Crow. Jaybar migrated a couple of miles from the town of Goforth to Port WIlliam. Crow says:

If you have lived in Port William a little more than two years, you are still, by Port William standards, a stranger liable, to have your name mispronounced. . . . [T]hough I was only twenty-two when I came to the town, many . . . would call me ‘Mr. Cray’ to acknowledge that they did not know me well. . . . Once my customers took me to themselves, they called me Jaybird, and then Jayber. Thus I became, and have remained, a possession of Port William.

Therefore, I conclude:

The government will assign the nonimmigrant an identifying number but will not learn the nonimmigrants name much less how to pronounce the name. The government will not take a personal interest in the nonimmigrant’s family, culture, or history. Immigrant marginality recedes and immigrant integration begins at the backyard barbecue, the pub, and the church as families celebrate births, graduations, marriages, deaths, and holidays together. The migrant will not be at home in her adopted country until she is known and loved in her new community. And, that takes time.

Thursday, May 2, 2013

Elizabeth Brown on Proselytizing in the Military

By Steve Shiffrin

Another very helpful comment to an earlier post of my own that I think bears bringing up above the line comes courtesy of Elizabeth Brown. Here is Elizabeth:

If people wanted to know what military laws and regulations say regarding proselytizing in the military, there are much better sources than the conservative blogs. For example, I would recommend people read a 2007 article from the Air Force Law Review:

http://www.afjag.af.mil/shared/media/document/AFD-081009-008.pdf

If one does, one will realize that the military regulations prohibiting coercive proselytizing are not “new” but have been in place for decades, although they were updated under President Bush because of problems found with coercive proselytizing at the U.S. Air Force Academy by independent observers like the Yale Divinity School. The recent statement by the DoD is just reiterating what the existing regulations already require. As Grant Galileo at dotCommonweal has already noted, this ban on unwanted or coercive proselytizing does not cover voluntary peer-to-peer conversations about religion.

To better understand how the military actually regulates proselytizing, please read this passage from the 2007 law review article from pp. 35-36 [citations omitted]:

“Unwanted proselytizing of another military member, even when it occurs among peers, can create delicate issues when it continues after the listener has expressed the desire not to hear any more invitations to adopt the speaker’s religion. As a general principle, of course, the Free Speech Clause does not require a speaker to cease speaking a message just because others do not like hearing it. A military member complaining to the chain of command about another member’s off-duty proselytizing might be advised to avoid, if possible, spending off-duty time with the proselytizer.

When the listener realistically cannot avoid the proselytizer, however, the situation is different. Examples include if the two are assigned as roommates or must work closely together or if the proselytizer is “stalking” the listener. Because of the repeated, unwanted nature of the proselytizing and the listener’s inability to avoid it, the proselytizing can affect the listener’s morale and ability to do his job and thus interfere with mission accomplishment and unit effectiveness. If it does, the religious speech becomes “unprotected,” and superiors should act to stop these adverse effects. Typically this would begin with counseling the proselytizer, emphasizing the religious speech’s effect on military efficiency due to its repeated, unwanted nature rather than the content of the speech.

Some religious speech by military members could also be limited under the Free Speech Clause not because of its content but because it violates some valid content-neutral law or order. For example, a regulation prohibiting the routine use of slogans and quotes on official e-mails would also prohibit religious quotations. Similarly, a lawful order to maintain ‘radio silence’ during a mission would also prohibit religious speech. These limitations are certainly permissible, despite their incidental impact on religious speech, because they are not aimed at any particular message and directly further important military interests. Finally, the Joint Ethics Regulation’s provision on ‘misuse of position’ prohibits governmental employees, including military members, from using their official position for ‘endorsement of any . . . enterprise’ or ‘in a manner that could reasonably be construed to imply that . . . the Government sanctions or endorses [their] personal activities.’ This content-neutral regulation limits religious speech in a way similar to the Establishment Clause’s limitation on religious speech.”

It should be noted that the military’s exisiting regulations against unwanted or coercive proselytizing both by servicemens and by chaplains have been upheld as constitutional by the courts. This is made clear by the 2007 law review article linked to above. Footnote 286 on p. 39-40 of the 2007 article discusses how the Second Circuit in Katcoff v. Marsh held that the military regulations prohibiting servicemen and chaplains from engaging in uninvited proselytizing or evangelizing are constitutional. It states:

“Although the constitutionality of the chaplaincy has not reached the Supreme Court, a Court of Appeals has upheld the chaplaincy, including its meeting of spiritual needs of military members, against an Establishment Clause challenge. Katcoff v. Marsh, 755 F.2d 223 (2d Cir. 1984). When chaplains engage in religious speech with people who have sought them for that purpose, they are meeting the spiritual needs of military members, as permitted by Katcoff. But chaplains’ uninvited proselytizing religious speech to military members poses a different practical and legal issue. On one hand, persuading others to adopt their beliefs is central to some major religious. See, e.g., Matthew 28:19 (quoting Jesus’ exhortation to ‘go and make disciples of all nations’) (New International Version). Chaplains of such religions likely would feel a strong calling to proselytize. On the other hand, the military’s permitting its chaplains to proselytize members—without the members’ explicit or implicit invitation—would likely violate the Establishment Clause. The court in Katcoff noted that ‘[n]o chaplain is authorized to proselytize soldiers or their families,’ id. at 228, and that ‘[t]he primary function of the military chaplain is to engage in activities designed to meet the religious needs of a pluralistic military community, including military personnel and their dependents,’ id. at 226. A chaplaincy that meets the religious need of military personnel, who may be deployed in remote locations away from their own churches, is permitted (and arguably mandated) by the Free Exercise Clause and does not violate the Establishment Clause. See id. at 232. Similarly, chaplains who provide spiritual insight to those who have sought it are also meeting the religious needs of military members. But chaplains who, without invitation, actively proselytize are not meeting the Free Exercise needs of military members. They are essentially creating new religious needs by promoting religion. Thus, attempts by chaplains in their capacity as governmental representatives to persuade military members to adopt a particular religion likely violate the Establishment Clause under Katcoff’s rationale. Sometimes chaplains distinguish between evangelizing (attempting to convert people who have no religious affiliation) and proselytizing (attempting to convert people who already have religious beliefs), permitting the former but not the latter. See Laurie Goodstein, Air Force Rule on Chaplains Was Revoked, N.Y. TIMES, Oct. 12, 2005, at A16. This is a distinction without First Amendment significance. Under Katcoff’s rationale, both activities by chaplains would be impermissible when applied to personnel not seeking to be converted. The Air Force’s interim religious guidelines state that chaplains ‘should respect the rights of others to their own religious beliefs, including the right to hold no beliefs’ and ‘must be as sensitive to those who do not welcome offerings of faith, as they are generous in sharing their faith with those who do.’ Air Force Interim Guidelines, supra note 26, ¶ 3D(2).”

As already noted by Grant Galileo at dotCommonweal, any violation of military regulations can subject a service member to court martial but usually there are a wide range of corrective actions that can be taken before the military even considers court martialling someone for a violation of its regulations.

[Portions of this previously cross-posted at dotCommonweal.]

More from Paul Horwitz on News Sources on Proselytizing in the Military

By Steve Shiffrin

One of the great benefits, I am finding, of keeping comments open in connection with my posts is the wealth of thoughtful responses thereby invited by interested MoJ readers. Here is another from Paul Horwitz:

I should say, as I have before, that I admire Patrick's work as an academic and his willingness to explore unstintingly in that work the implications of his understanding of a strong commitment to Catholic social thought for law and society, even where it causes real tensions between those commitments and what we think of as more conventional liberal or even American commitments. And let me restate, perhaps tediously, that I read Weinstein's columns and object to them.

I would not have added anything at all, but I wanted to say a word of caution, if I might, about Patrick's latest post, which I read, perhaps wrongly, as something of a way of saying that it helped vindicate his earlier concerns. (I have not read the David Gallicho post above but will try to do so when I can. Doubtless its information is better than mine.)

Patrick writes in that new post, in strong and definitive terms: "Men and women serving in the United States' military will be court-martialed for sharing the Gospel with one another. Details about the new policy remain to be disclosed, to be sure, but the intent and direction appear now to be undeniable." His post links to a story by "Breitbart News legal columnist Ken Klukowski," who is a "senior fellow for religious liberty with the Family Research Council and on faculty at Liberty University School of Law." That story is pretty poor, but really turns out to rely on a link to Fox, http://radio.foxnews.com/toddstarnes/top-stories/pentagon-religious-proselytizing-is-not-permitted.html, which, to be clear, is not by a line reporter for Fox News, but by a commentator for the network. That story contains three parts. Part one is about Weinstein consulting with the Pentagon, and part three contains reactions by various usual suspects. (Not that they're wrong or right; it's just that the reactions are not informational.) Part two says:

"The Pentagon confirmed to Fox News that Christian evangelism is against regulations. 'Religious proselytization is not permitted within the Department of Defense,' LCDR Nate Christensen said in a written statement. He declined to say if any chaplains or service members had been prosecuted for such an offense. 'Court martials and non-judicial punishments are decided on a case-by-case basis and it would be inappropriate to speculate on the outcome in specific cases,' he said."

This appears to be the basis for the claims made in the Breitbart story and in Patrick's new post. What's not clear from this statement is: 1) the contours of this rule, ie. whether it applies to standard peer-to-peer proselytization, or proselytization outside official channels, or applies more narrowly to circumstances that might reasonably be considered to involve misuse of rank etc.; 2) whether the rule is new or whether the Pentagon spokesperson is just referring to existing policy; 3) whether the rule, new or old, has anything to do with Weinstein; 4) whether there have been any courts-martial for such conduct; 5) what kinds of circumstances would have to apply for a court-martial to even be considered; 6) whether there is anything like some kind of going-forward policy, new or old, of using courts-martial as a punishment for "sharing the Gospel with one another."

I don't think it matters for my point whether one believes there should be no proselytization ever, which appears to be Weinstein's view, or whether any and every form of proselytization ought to be immune from standard military rules, no matter the rank or circumstances involved, which seems to be the implication of Patrick's posts, or whether, as with any number of matters of military relations, this is a context-dependent matter, which would be my view. What matters to me is that there is not much evidence of a new policy and not much clarity about the policy itself. Moreover, the spokesman's response on courts-martials really seems to constitute more of an equivocation (meant here in a pretty neutral way, as a way of officially answering a question without saying much) than a positive statement. There's also not much, or at least not much clear, tying anything to Weinstein, although in fairness that wasn't the main point of Patrick's post. (It was, however, a main point of the Breitbart story.) There's just not much there there, and certainly, it seems to me, not enough to have justified the confident description given by Patrick.

Patrick is certainly justified in criticizing Weinstein and questioning the nature of his involvement with the Pentagon, even if it turns out to be pretty minor. But I think he would be much better off reading his sources much more carefully and avoiding the overconfident summaries he provides. I appreciate his fervor on this issue, but, as always, would encourage caution in basing definitive statements on the say-so of so-so news sources.