Wednesday, March 13, 2013
Helfand's Testimony: Implied Consent Institutionalism
"Strong" Catholics in America on the decline
The Pew Forum reports that "the percentage of U.S. Catholics who consider themselves 'strong' members of the Roman Catholic Church has never been lower than it was in 2012." The number, according to Pew's analysis of the General Social Survey, is 27% (even lower than the number for "mainline Protestants"). A bit:
"[O]ver the past four decades, self-reported church attendance has declined among 'strong' Catholics as well as among Catholics overall. The share of all Catholics who say they attend Mass at least once a week has dropped from 47% in 1974 to 24% in 2012; among 'strong' Catholics, it has fallen more than 30 points, from 85% in 1974 to 53% last year."
Time for some evangelization!
A Framework to Consider for the Conclave
As a Criminal Procedure professor, it has always irked me when the media uses sports analogies to report on criminal cases. Reporters often use phrases such as "the defense team," or talk about a lawyer "scoring points," or describe a trial event as a "game-changer." Such references not only trivialize very serious matters, but add to the mainstream perception of "law as sport." In my own classes students discuss how the cases covered are "life altering events" for those involved. More directly, when we discuss "law as a vocation of service," we underscore that a trial is anything but game. Hopefully, graduates from our Catholic law school leave with a sense that a criminal trial is not a sporting event or competition between lawyers. Rather, for both the defendant and the government it should be seen as a sacred opportunity to see that justice is done in the wake of a possible crime.
Unfortunately, I am observing a similar phenomenon occurring in the coverage of the selection of the new pope. Here the analogy is not necessarily to sports (although there is that as well), but to a modern political campaign. Like many MOJ readers, I understand the mainstream media rarely covers Catholic Church events with a true comprehension of the issues. Furthermore, given that this is a conclave after the first Papal resignation in 600 years, we all find ourselves in unchartered waters. However, the constant analogies, or outright descriptions, of this as a rank, modern, political event are equally as troublesome.
The media has repeatedly used terms such as "frontrunners," "contenders," "picks" or "candidates" to describe possible successors to Peter's chair. The selection process has also been replete with terms describing cardinals as "campaigning" or engaging in "horse-trading" for the position. Now, I am not completely naïve – it is, after all, called an "election" - and voting is involved. Therefore, some of these descriptors are not entirely misplaced. However, the extent to which this selection has been exclusively framed completely as a political sideshow is unfortunate.
To be sure, politics have always played a role in selecting leadership. Even during the life of Christ, some actively attempted to gain positions of influence. (Mathew 20:21) However, I would like to think a more balanced description of what is occurring in the Eternal City, such as that offered by Mathew Schmalz in this piece, has a place in this discussion. He reminds the public that, while politics may or may not infuse some of this process, that narrative should not be the dominant theme in these events.
"Men like Angelo Roncalli and Karol Wojtyla were on no one's list of papal contenders when their conclaves began. Now both have been made "blessed." A sign, for Catholics at any rate, that the Holy Spirit works in ways that we often cannot predict or contain."
I am no Vaticanista. Therefore, I do not know who is correct, but I hope the reality of the selection of a new pope is more accurately described by Professor Schmalz than the mainstream media. If not, it should be by all those involved (participants and observers of the conclave). Just as with a trial, the papal selection is not a game or political campaign. Its significance may be life altering. As such, I might suggest the better framework was something I recently heard from a parish priest sharing mass with second graders. He opened mass with a prayer that the cardinals gathered in Rome "may be guided to select the best pope for the people of God." That sounds like a simple, yet elegant, framework to consider.
Tuesday, March 12, 2013
Prepared Remarks for the US Commission on Civil Rights Briefing Next Week
Rick rightly called attention to John Inazu's incisive written remarks for a hearing next week before the US Commission on Civil Rights, whose subject is the conflict between civil rights and nondiscrimination norms. I'm on the second panel as well. My prepared testimony may be found here. I've also reproduced it below (without footnotes).
____________________________
Dear Members of the Commission:
Thank you for the chance to testify before you today. I am an associate professor at St. John’s University School of Law. My work focuses on constitutional law, criminal law, and the law of religious liberty.
The subject of our panel concerns the conflict of anti-discrimination norms and civil rights, and the specific civil right of our collective focus is the right of religious liberty. My prepared remarks divide into two parts.
The first part considers the importance of studying and, to some extent, preserving the conflicts that we are considering. The wish to resolve a conflict sometimes can mask the depth and complexity of the conflict. Even more than this, an overeager desire to resolve a conflict can obscure the possibility that conflicts are part of every person’s experience, and, perhaps more controversially, that justice often does not consist of any sort of large-scale harmonious solution or consensus either within an individual or within a polity.
The second part reflects on the ways in which our law attempts to negotiate around one specific type of conflict between non-discrimination norms and the right of religious liberty in the doctrine of the ministerial exception, which was recently recognized by the United States Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC.
Short Review of Monsma, "Pluralism and Freedom"
Monday, March 11, 2013
Novel Manuscript by Catholic Author Looking for a Good Home
Like many a law professor, writing a novel has long been an item on my bucket list. For most of us, that’s just where it stays -– a promise left unfulfilled. But finding myself at a point somewhat in between projects (with a major empirical study complete and article manuscripts in the editorial pipeline), I determined last year to bring my novel manuscript to completion, given that the story had been outlined ten years before, with various scenes sketched out over the ensuing decade.
The result, “Marital Privilege,” is a novel with distinctly Catholic sensibilities (focusing on devout Catholic mother who struggles to maintain her faith after the death of her child), with connections as well to the legal academy (the main character is, no surprise given the author, a law professor) and the world of law and lawyers (populated by police, prosecutors, defense lawyers, and judges and including courtroom scenes).
While I have no illusion that this novel will become a classic assigned in college literary classes in decades to come, I am pleased with the revised manuscript and encouraged by the enthusiastic responses from test readers. If and when “Marital Privilege” finds its way into print, I am hopeful it will have a special appeal to the faithful followers of “Mirror of Justice.”
But “finding its way into print” is much easier said than done. In terms of finding a publisher, I have been following the traditional approach of contacting literary agents, which may yet bear fruit. I recognize, however, the difficulty of making a connection with a traditional literary agent through cold contacts by a novice author of fiction. I am also considering regional publishers and other options.
Then I thought of this “Mirror of Justice” community, which has been so generous to me over the many years since its founding. So I appeal to you for thoughts and possibilities of publication that may not have occurred to me. If you have an idea of a good home for this manuscript, kindly send it my way at “[email protected]”.
I've pasted below a brief “query” description of the novel, in the style commonly used for initial contacts with literary agents:
Nothing could be worse for a mother than to witness the death of her young child -- and then to be used by a politically-ambitious prosecutor who seeks to pin the crime on the woman's own husband.
Candace Klein, a young law professor in the Twin Cities, is one of the lucky ones in her professional life, finding genuine meaning in her work. But her personal life is troubled by a growing distance from her husband, Bill, who languishes in a dead-end job working for her father. Then suffering the horrific loss of her child, Candace grieves and seeks solace in her faith, while the criminal investigation proceeds under the direction of a politically-climbing prosecutor, Robby Sherburne, who pledges to secure the death penalty for a child-killer. Lt. Ed Burton, a suburban cop, works diligently to follow the evidence where it leads. As the evidence accumulates and her husband becomes a target of the investigation, Candace resists becoming the instrument of her husband's condemnation. She relies on the uncertain legal protection of the "marital privilege" to refuse to testify, which ultimately provokes a crisis of identity between her professional commitment to the justice system and her resolute loyalty to her husband.
While offering elements of a mystery, episodes of courtroom drama, and an underlying theme of a woman's struggle to keep faith in the face of tragedy, MARITAL PRIVILEGE may perhaps best be categorized as falling on the line between literary and mainstream fiction. Although this manuscript was completed before recent tragic events in New England, the story of a mother finding her way after the loss of an innocent may resonate with a wider audience today. The manuscript is complete at 79,000 words.
MARITAL PRIVILEGE is my first foray into law-related fiction. As a law professor holding an endowed university chair, I have published three non-fiction law books with such leading legal publishers as Thomson-West and Foundation Press. I have also published dozens of scholarly articles and other periodical pieces, including many placements in top ten legal journals and reception of the annual Law & Society Best Article Prize.
More amicus brief in the Prop. 8 and DOMA cases
Following up on Michael P.'s post, a few days ago, about the brief that Doug Laycock, Marc Stern, and our own Tom Berg did in Perry and Windsor, here is an update from Ryan Anderson on the array of amicus briefs that have been filed urging the Court to uphold both Prop. 8 and DOMA. One of those briefs was co-authored by our own Robert George.
Relatedly, a friend passed on this short news (??) story, "Justice Kennedy Notes Power Shift to High Court." A bit:
Justice Anthony Kennedy says he is concerned that the U.S. Supreme Court is increasingly the venue for deciding politically charged issues such as gay marriage, health care and immigration.
The 76-year-old associate justice said Wednesday that major policies in a democracy should not depend "on what nine unelected people from a narrow legal background have to say."
Sunday, March 10, 2013
Great News on Laetare Sunday -- SPRED to receive ND's Laetare Award
SPRED is an organization near & dear to my heart, and I was so happy to see that they're being recognized this year by Notre Dame:
Sister Susanne Gallagher, S.P.; Sister Mary Therese Harrington, S.H.; and Rev. James H. McCarthy, founders of the Special Religious Education Development Network (SPRED), will receive the University of Notre Dame’s 2013 Laetare Medal, the oldest and most prestigious honor given to American Catholics, at Notre Dame’s commencement this May.
“Sisters Gallagher and Harrington and Father McCarthy have summoned the Church to a crucial and too often overlooked ministry,” said Notre Dame’s president, Rev. John Jenkins, C.S.C. “Insisting that a developmental disability neither tempers Christ’s invitation nor restricts one’s right to respond, they have ushered countless people to their rightful place at the Eucharistic table.”
Saturday, March 9, 2013
The Religion of Human Rights
Friday, March 8, 2013
Predictably Unpredictable: Thoughts on the Free Exercise Clause
I want to talk to you about the Free Exercise Clause. This post is long.
My view of the Free Exercise Clause is one part of a larger approach to constitutional adjudication
involving the religion clauses. For those who have been thirsting feverishly to know more about that approach, fear not: soon enough, I will flood the zone. Suffice it for now to say that one of the most serious criticisms of my approach is that it is insufficiently predictable. It is sometimes said, not without reason, that my approach is not rule-like enough, and that it is therefore damaging to rule of law values.
These are fair criticisms, and I do my best to address them. I do this in part by taking a close look at the way in which a selection of state, federal district, and federal intermediate appellate courts have applied that putatively most rule-like of all religion clause rules: neutral laws of general application do not violate the Free Exercise Clause.
What I find is: that rule is not nearly as inviolable as many who invoke it believe. In fact, knowing when that rule will apply actually depends on having the sense of a host of context-dependent and issue-specific factors. The trouble, as I have explained before, is the issue of general applicability. Employment Division v. Smith carved out the unemployment compensation cases from its holding. But, per this amicus brief, it is more accurate to think about this carve-out not as an "exception" but as a corollary to the rule itself, which creates a kind of graduated spectrum of general applicability. Laws which are not "generally applicable" are lifted out of the Smith "rule" and receive judicial balancing. How do we know when a law is not "generally applicable"?
It falls to courts to determine what "generally applicable" means along the spectrum. It cannot mean that the law has no exceptions, period; that would destroy the rule. And yet "generally applicable" must mean something. What it means is the subject of judicial interpretation--for now, very much in the common law style. And that means that the Smith rule is much less predictable than its supporters suppose: "If the vice of pluralistic approaches is that they are predictable only to those who know how they will be applied, that is no less true of monistic approaches." Chapter 8, The Tragedy of Religious Freedom. That is not enough, by itself, to convince you to adopt my approach. For that, you need to buy the book!
Here is a brand new HHS Mandate case to show the predictable unpredictability of Smith, Geneva College et al. v. Sebelius, decided Wednesday by the U.S. District Court for the Western District of Pennsylvania.