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.

Sunday, February 17, 2013

"Why Gender Equality Stalled"

That's the title of an excellent piece in today's New York Times by Stephanie Coontz.  In a few short paragraphs, she paints a vivid picture of how starkly the contemporary American workplace differs from much of the rest of the world, in ways that directly undermine the Church's views on the place of the family as society's most effective  'school of the virtues."  And, as she makes clear, this is no longer (if it ever was) just a "woman's issue."  

In today’s political climate, it’s startling to remember that 80 years ago, in 1933, the Senate overwhelmingly voted to establish a 30-hour workweek. The bill failed in the House, but five years later the Fair Labor Standards Act of 1938 gave Americans a statutory 40-hour workweek. By the 1960s, American workers spent less time on the job than their counterparts in Europe and Japan.

Between 1990 and 2000, however, average annual work hours for employed Americans increased. By 2000, the United States had outstripped Japan — the former leader of the work pack — in the hours devoted to paid work. Today, almost 40 percent of men in professional jobs work 50 or more hours a week, as do almost a quarter of men in middle-income occupations. Individuals in lower-income and less-skilled jobs work fewer hours, but they are more likely to experience frequent changes in shifts, mandatory overtime on short notice, and nonstandard hours. And many low-income workers are forced to work two jobs to get by. When we look at dual-earner couples, the workload becomes even more daunting. As of 2000, the average dual-earner couple worked a combined 82 hours a week, while almost 15 percent of married couples had a joint workweek of 100 hours or more.

Astonishingly, despite the increased workload of families, and even though 70 percent of American children now live in households where every adult in the home is employed, in the past 20 years the United States has not passed any major federal initiative to help workers accommodate their family and work demands. The Family and Medical Leave Act of 1993 guaranteed covered workers up to 12 weeks unpaid leave after a child’s birth or adoption or in case of a family illness. Although only about half the total work force was eligible, it seemed a promising start. But aside from the belated requirement of the new Affordable Care Act that nursing mothers be given a private space at work to pump breast milk, the F.M.L.A. turned out to be the inadequate end.

Meanwhile, since 1990 other nations with comparable resources have implemented a comprehensive agenda of “work-family reconciliation” acts. As a result, when the United States’ work-family policies are compared with those of countries at similar levels of economic and political development, the United States comes in dead last.

Out of nearly 200 countries studied by Jody Heymann, dean of the school of public health at the University of California, Los Angeles, and her team of researchers for their new book, “Children’s Chances,” 180 now offer guaranteed paid leave to new mothers, and 81 offer paid leave to fathers. They found that 175 mandate paid annual leave for workers, and 162 limit the maximum length of the workweek. The United States offers none of these protections.

A 1997 European Union directive prohibits employers from paying part-time workers lower hourly rates than full-time workers, excluding them from pension plans or limiting paid leaves to full-time workers. By contrast, American workers who reduce hours for family reasons typically lose their benefits and take an hourly wage cut.

Is it any surprise that American workers express higher levels of work-family conflict than workers in any of our European counterparts? Or that women’s labor-force participation has been overtaken? In 1990, the United States ranked sixth in female labor participation among 22 countries in the Organization for Economic Cooperation and Development, which is made up of most of the globe’s wealthier countries. By 2010, according to an economic research paper by Cornell researchers Francine Blau and Lawrence Kahn, released last month, we had fallen to 17th place, with about 30 percent of that decline a direct result of our failure to keep pace with other countries’ family-friendly work policies. American women have not abandoned the desire to combine work and family. Far from it. According to the Pew Research Center, in 1997, 56 percent of women ages 18 to 34 and 26 percent of middle-aged and older women said that, in addition to having a family, being successful in a high-paying career or profession was “very important” or “one of the most important things” in their lives. By 2011, fully two-thirds of the younger women and 42 percent of the older ones expressed that sentiment.

Nor have men given up the ideal of gender equity. A 2011 study by the Center for Work and Family at Boston College found that 65 percent of the fathers they interviewed felt that mothers and fathers should provide equal amounts of caregiving for their children. And in a 2010 Pew poll, 72 percent of both women and men between 18 and 29 agreed that the best marriage is one in which husband and wife both work and both take care of the house.

BUT when people are caught between the hard place of bad working conditions and the rock wall of politicians’ resistance to family-friendly reforms, it is hard to live up to such aspirations. The Boston College study found that only 30 percent of the fathers who wanted to share child care equally with their wives actually did so, a gap that helps explain why American men today report higher levels of work-family conflict than women. Under the circumstances, how likely is it that the young adults surveyed by Pew will meet their goal of sharing breadwinning and caregiving?

"A Reply to My Critics" -- Chuck Reid

[University of St. Thomas law prof Chuck Reid has asked me to post this statement, and I am happy to do so.]

          In my abortion columns written over the last five months, I have made it clear that I do not disagree in principle with the propositions that life begins at conception and that it is deserving of legal protection.  My quarrels have been, rather, with the political strategies of the pro-life movement, as it has evolved over the last four decades.

          Many readers have noticed this.  A commenter on one my Huffington Post columns observed (I paraphrase):  Reid's proposal to cooperate on a shared agenda with the left to reduce the rate of abortion is probably the only way forward for the pro-life movement.  But this observer, who acknowledged that he/she was pro-choice, continued by noting that the pro-life movement would never follow.  And then there were the editors at the Italian newspaper, La Stampa, who profiled my work in an article entitled "Changing Strategy on the Culture of Life."  The editors certainly understood my work to speak to strategy, not principle.  So, let's be clear upfront, my concern is centered in the world of prudential judgment, it is a matter of how to succeed given today's political realities.  It is not an argument over first principles.  As I have made very clear, the pro-life movement should be about saving lives in the here and now.

          I have known women who have experienced the tragedy of abortion.  There was the Jewish woman who received the grim news early in her pregnancy that her child was anacephalic -- developing without a head.  The child could be expected to survive no more than a few hours post partum, if that.  She was devastated and looked to the teachings of her faith which made it clear to her lights that abortion was recommended in such extreme cases to limit needless suffering.  And then there were the Catholic women, several of them, I became acquainted with during my service as a matrimonial judge.  None of them wanted to have an abortion.  But they were lonely, desperate, their spirits crushed by boyfriends and families who abandoned them.  Alone, lacking financial and emotional resources, they chose a solution for which they were truly sorry but which seemed inevitable at the time.

          These vivid life experiences have taught me that the common denominator to the choice to have an abortion is desperation.  I have yet to meet a woman who chose abortion to satisfy some desire for greater material resources.  I am sure there are some who decide that they will never get that Mercedes Benz if they have a hungry mouth to feed, but those women are few in number.  Desperation, hopelessness, a fear of being left alone in the world without means of assuming the responsibilities of childcare -- these are the great causes of abortion.  Individual pro-lifers, and organizations such as pro-life pregnancy centers to which individuals devote their time, have recognized this, to their great credit.  But the political strategy of the pro-life movement has failed to recognize it, and indeed increasingly stands in the way of it.

Continue reading

Friday, February 15, 2013

New President for University of St. Thomas

Our Board of Trustees voted unanimously yesterday to select Dr. Julie Sullivan, currently Provost at the University of San Diego, as our new president.  You can see read more about her here, here, and here.

I was a member of her Search Committee.  Out of a deep and wide pool, she was a true stand-out in every way, and I couldn't be more thrilled that she is joining us.

She will be our first lay president and, obviously, will provide us with a blast of the 'feminine genius.'  I liked her remarks on this  at the press conference:

"I'm sure many of you are wondering, What does this mean? How will this be different? Should we be scared?" Sullivan said. "I believe my appointment reflects the sign of the times. ... the board sought to broaden their pool of candidates to all qualified Roman Catholics."

"In my view, the board's decision was a reflection of their recognition that universities are very complex organizations today. And finding the best candidate to lead one requires a broad pool."

Here was an interesting statistic from the St. Paul Pioneer Press's coverage:

Baenninger said lay leaders have been replacing clergy as top administrators of Catholic universities in Minnesota and beyond. Of the 17 members of the Minnesota Council of Private Colleges, three are led by women, and two of those are Catholic institutions.

According to the Association of Catholic Colleges and Universities, such institutions are ahead of the curve nationally when it comes to female top leadership, as well. Among the 194 members of the association, almost 35 percent have female presidents, compared with about 26 percent of all colleges and universities.

Perhaps it's time for me to update my 2007 article, What Catholic Law Schools could Learn from Harvard about Women, in which I argue that Catholic teachings support measures to support more women to stay in academia.  Or maybe someone's been reading that article?

Thursday, February 14, 2013

RIP, Ronald Dworkin

Via Larry Solum, I learn the news that the important philosopher of law and politics, Ronald Dworkin, has passed away.  I only met Professor Dworkin one time, in a law and philosophy class at Columbia co-taught by Professors Jeremy Waldron and Joseph Raz (it was a fun class).  Professor Dworkin was the first in a series of guest presenters, and I distinctly remember Professor Waldron telling the class before his arrival, "Remember, we don't want to argue with Professor Dworkin; we want to understand him."  He presented an early draft of a paper of what was to become a chapter in "Is Democracy Possible Here?  Principles for a New Political Debate."  My memory is that he was as fine a parser and distinguisher of factual situations as I have seen.

Professor Dworkin was also a superb writer.  Everyone writes differently, and for different reasons, but much of my own writing is generated, propelled, and sustained as a series of reactions or disagreements.  I intend it as a genuine tribute of respect to Professor Dworkin that his writing provoked, and still provokes, strong reactions in me.  I can think of no better example of the power of his writing to elicit such a reaction than the following passage:  

It is in the nature of legal interpretation—not just but particularly constitutional interpretation—to aim at happy endings. There is no alternative, except aiming at unhappy ones. . . . Telling it how it is means, up to a point, telling it how it should be. . . . That is a noble faith, and only optimism can redeem it.

Freedom's Law: The Moral Reading of the American Constitution.

Benedict's Reflections on the Council

In meeting for the last time with his priests today -- the clergy of the Diocese of Rome -- Pope Benedict offered a lengthy impromtu reflection on the Second Vatican Council that is well worth reading.  (Available here).

There are many highlights here as he talks about the subject of each of the major documents of the Council: the reform of the liturgy (which he sees as significant in that it was the first act of the Council -- putting God and the worship of God first); completing the work of Vatican Council I in setting forth a broader and more complete ecclesiology; the primacy of scripture and the relationship between scripture and tradition; engagement with the modern world as "our responsibility for the society of tomorrow and the responsibility of the Christian before eternity," and the commitment to ecumenism and the Church's relationship with Judaism and other world religions.

It is all very much worth reading.  I was struck, however, by these concluding thoughts:

I would now like to add yet a third point: there was the Council of the Fathers - the true Council - but there was also the Council of the media.  It was almost a Council in and of itself, and the world perceived the Council through them, through the media.  So the immediately efficiently Council that got thorough to the people, was that of the media, not that of the Fathers.  And while the Council of the Fathers evolved within the faith, it was a Council of the faith that sought the intellectus, that sought to understand and try to understand the signs of God at that moment, that tried to meet the challenge of God in this time to find the words for today and tomorrow.  So while the whole council - as I said - moved within the faith, as fides quaerens intellectum, the Council of journalists did not, naturally, take place within the world of faith but within the categories of the media of today, that is outside of the faith, with different hermeneutics.  It was a hermeneutic of politics.  The media saw the Council as a political struggle, a struggle for power between different currents within the Church.  It was obvious that the media would take the side of whatever faction best suited their world.  There were those who sought a decentralization of the Church, power for the bishops and then, through the Word for the "people of God", the power of the people, the laity.  There was this triple issue: the power of the Pope, then transferred to the power of the bishops and then the power of all ... popular sovereignty.  Naturally they saw this as the part to be approved, to promulgate, to help.  This was the case for the liturgy: there was no interest in the liturgy as an act of faith, but as a something to be made understandable, similar to a community activity, something profane.  And we know that there was a trend, which was also historically based, that said: "Sacredness is a pagan thing, possibly even from the Old Testament.  In the New Testament the only important thing is that Christ died outside: that is, outside the gates, that is, in the secular world".  Sacredness ended up as profanity even in worship: worship is not worship but an act that brings people together, communal participation and thus participation as activity.  And these translations, trivializing the idea of ​​the Council, were virulent in the practice of implementing the liturgical reform, born in a vision of the Council outside of its own key vision of faith.  And it was so, also in the matter of Scripture: Scripture is a book, historical, to treat historically and nothing else, and so on.

And we know that this Council of the media was accessible to all.  So, dominant, more efficient, this Council created many calamities, so many problems, so much misery, in reality: seminaries closed, convents closed liturgy trivialized ... and the true Council has struggled to materialize, to be realized: the virtual Council was stronger than the real Council.  But the real strength of the Council was present and slowly it has emerged and is becoming the real power which is also true reform, true renewal of the Church.  It seems to me that 50 years after the Council, we see how this Virtual Council is breaking down, getting lost and the true Council is emerging with all its spiritual strength.  And it is our task, in this Year of Faith, starting from this Year of Faith, to work so that the true Council with the power of the Holy Spirit is realized and Church is really renewed.  We hope that the Lord will help us.

I, retired in prayer, will always be with you, and together we will move ahead with the Lord in certainty.  The Lord is victorious.  Thank you.

I have no doubt that the calamaties that Benedict mentions -- "seminaries closed, convents closed, liturgy trivialized" -- have causes well beyond how the Council was reported in the media (even as the media -- including members of the Church herself -- surely contributed to this), and I do not doubt that Benedict knows this too.  Still, I am struck by how -- fully fifty years after the Council -- the media's "hermenutic of politics" is in almost every instance the exclusive lens through which Benedict's resignation and the upcoming conclave are presented.  The media often caricatures the Church as an institution hide-bound by tradition.  It would seem, however, that this more aptly describes the media's reporting of Church affairs.

 

Of frog legs alligators: more on the law of abstinence

Dear Prof. Scaperlanda,

I would have written this in the comment box at Mirror of Justice, but it appears to be closed.

Archbishop Aymond's letter, which you posted on Mirror of Justice, reflects the long-standing interpretation of the law of abstinence, which is that "meat" is the flesh of a warm-blooded, terrestrial member of the kingdom Animalia. See 1983 CIC c. 1251 ("abstinence from meat"). Eggs, milk, and dairy products are well known as falling outside the scope of "meat." Likewise, we tend to describe those things that aren't "meat," at least colloquially, as "fish." So mollusks and fish are in on days of abstinence.

But the traditional rule has always, or at least long, been that the flesh cold-blooded animals, at least aquatic cold-blooded animals, doesn't count as "meat." Some people on the internet cite Paul VI's constitution Paenitemini for this principle, but it's not there. The origins of the distinction are
obscure, at least to me (that is, I haven't looked for them very hard). I do know that there are additional oddities, such as the tradition that capybara is not "meat," apparently predicated on a mixture of food scarcity in certain regions of South America and a rather loose grasp of zoology by some early-modern curial officials.

Enjoy your frog legs,

Paul Krog
Nashville, TN

Note:  Thanks Paul.  I'm not sure why the comments appear closed.

Pope Benedict and the New Evangelization

Andreas Widmer has an insightful analysis  suggesting that Benedict completed the work of JPII and then laid the groundwork for the New Evangelization, realizing that that project should be headed by someone else.  Here is the conclusion:

The timing he chose is greatly important. If he had waited until pundits, even only a few, would call for his abdication it would be too late. Then the political undertones would diminish and pollute the sincerity and selflessness of the decision. The way he decided to do it allowed Benedict to be ahead of the speculators and politicians among us. Dare I say he outsmarted them?

Leaders take note: Pope Benedict XVI provides a rare but profound example of humility in action. True leaders put their cause before their power and self-interest. Far from a failure or weakness, this may be the most shining moment of Benedict's papacy, and what will turn out to be a historically brilliant move.

HT: Rebekah Scaperlanda

Eating alligator on Friday's during Lent (and the rest of the year)

If anyone remembers the story behind this great case of legal intepretation, please comment. 

Alligator meat
HT: Jason Reese

Wednesday, February 13, 2013

A homily to begin Lent

 

 

Ash Wednesday 2013

 

Joel 2:12-18

2 Corinthians 5:20-6:2

Matthew 6:1-6, 16-18

 

What does God ask of you? This is a question which the prophet Micah rhetorically asks and answers. His answer follows: to act justly; to love tenderly; and, to walk humbly with God. Let us concentrate on the latter point. But why does God ask this of me or you? Well, He most assuredly cares about us all, collectively and individually. He gave us free will—such a gift, but we have all abused it from time to time—sometimes in small ways, but other times in a manner of great magnitude. Yet both God and know that you and I will inexorably die. What then? Is that where acting justly and loving tenderly? No, and that is why He sent His only son, Jesus Christ, amongst us: to save us from our sins—for when we die, the inescapable question is: did we ask our Creator and those against whom we transgressed for forgiveness? This is a crucial way of walking humbly with God!

It may be this essence of our salvation history and God’s plan—which we commemorate during this holy season of Lent—that prompted the great poet and Jesuit Gerard Manley Hopkins to write his poem “As kingfishers catch fire…” Hopkins was no stranger to proclaiming God and all He created in his poetry—just think of his poems “The world is charged with the grandeur of God…” and “Glory be to God for dappled things…” But I return to the Kingfisher poem. Hopkins was not adverse to announcing God’s plan of salvation for the human person—addressing this was an imperative for the Jesuit poet and teacher. The stones of which he speaks that fall into the “roundy well” might well be us. Man has fallen—the stones tumble into the well’s depth; yet, Christ has come to save those who turn to Him. The kingfisher is no ordinary bird, it is brilliant in appearance, it is King, and it is fisher. Might it be Christ who has come to save us because, as we know, God so loved the world that He sent His only son so that we might live with Him forever?

My dear sisters and brothers: we sin, and when we do, we fall. We are those stones falling into a well that may collapse upon us with its tumbly rock. But there is hope; there is Christ—Christ the Kingfisher who searches not for food but for us when he “catches fire!”

Hopkins’s the Kingfisher may also be the one in the poem who cries out that the just person “justices”—i.e., does justice (or, as Micah reminds us, to act justly), who keeps grace (or, again as Micah reminds us, to love tenderly), and who is to be united with Christ. With clarity, Hopkins announces that the person is in ten thousand places, and are these those who are the one’s Micah says will walk humbly with God? If so, then the plan for human salvation is in place. But something yet is still needed, and what that is appears in the Lenten Celebration—a joyous occasion, as Saint Matthew suggests—which we begin this day. So, three points about this celebration now follow.

First, we are reminded of our need to walk with God, the son incarnate during Lent. The prophet Joel announces the time to pounder in our hearts what we have done so that we might return to God. What an extraordinary gift this Lent is: to do just that by praying to/talking with God. God’s mercy and forgiveness are there always: for the Kingfisher is ever present. But do we—do you, do I—wish to turn to him? If that is the question, the season to ponder it most effectively begins now. If all things are possible for God, might his forgiveness extend to us?

Indeed it can and will, but one further thing is needed, which leads me to the second point.

We must be reconciled with God as Saint Paul reminds not only for the church in Corinth but for us as well! As Saint Paul asserts, God desires us to serve the Son as his disciples—and this means we must be ambassadors for Christ going out into a world as His ambassadors: loving others tenderly, acting justly with them, knowing that along the way we are walking humbly with God. To do this, we must acknowledge honestly who we are: sinners loved by the one who made each of us. Therefore, to be His ambassadors—His disciples united in God’s labors in this world—we must purify ourselves. That is, we must turn from sinfulness and back to that grace, that presence of God in our lives that makes us “justice” as Hopkins eloquently argues, or to act justly as Micah asserts. Again, preparation is needed. But of what kind? And this is where the third and final point comes into play.

Saint Matthew offers his counsel to formulate what must be done in preparation: we do not pretend to honor God and our neighbor; rather, we must do this knowingly and willingly with the sincerity of our very fiber. This fundamental point necessitates turning to and relying upon God in our prayer. While there is much to be said about good works, these noble acts will have tarnish if the righteous deed is only for others to see and without regard for our own need for our personal purification. What is needed to make these works complete is that quiet place, that inner room where we pray, where we talk with God. When we fast, even though our outer appearance may be stunning, we follow suit—robustness on the external, seeking God in the internal. Then God will see our authentic heart over which we ponder with Him, as the prophet Joel counsels. We enter a sober season, my friends, but it is not filled with gloom: it is, to the contrary, joyous!

It is joyous because we are serious about who we are, viz. Christ’s disciples; we know that the Kingfisher is in our lives helping us to steer clear of sin and practice virtue to act justly, love tenderly, and walk humbly with the one who came to save us all.

I am certain that there are times when what has been outlined here is our resolve for we recall those occasions when we pondered in our hearts how best to serve God with fidelity. But there is always temptation lurking in the dark corners of our lives—temptations that we have allowed to sweep us up into sin and away from God. That is when an example of those heroes God sends us to help us with our own purification become most helpful.

One such example is our Holy Father who made his remarkable announcement on Monday of renouncing the Chair of Peter. What will he do, you might ask once he is no longer Peter? He has told us: he will purify himself. He will use his remaining days to go to a private place out of the public eye to pray to God and talk with Him.

Might we not do the same? Let us give it our most hearty try during this holy season which we begin this day! With this as our disposition, can the Kingfisher be far off?

 

Amen.

 

 

RJA sj

 

Charles Reid's strange diagnosis

Michael has again posted a Chuck Reid HuffPo column and, like several of Reid's other recent columns, the piece mixes some accurate reporting with some misguided assertions.  Reid describes the Holy Father as the "last 20th century pope," he writes, and notes that "what he never did, what he never understood  there was any need to do, was to open a serious and respectful dialogue with the secular world."  This is a very strange and, in any event, quite wrong statement.  One might start, for example, here

Of course, when it comes to misguided commentary on Pope Benedict's legacy, service, thought, and work, it could be a lot worse.  See, for example, Bill Keller's silly rant (translation:  "The Pope failed to understand that, as Pope, he should have changed the Church and her teachings in order to make them more congenial to my own views.").