Canadian law school deans are opposing the creation of a new Christian law school at Trinity Western University because of the university's "community covenant" prohibiting homosexual conduct.
Monday, January 21, 2013
A Christian law school in Canada?
MLK and the Morality of Legal Practice
If you're looking for a suitable gift for a loved one on MLK Day, I suggest this hot-off-the-presses new book, Martin Luther King Jr. and the Morality of Legal Practice: Lessons in Love and Justice. Here's the blurb:
This book seeks to reframe our understanding of the lawyer's work by exploring how Martin Luther King Jr. built his advocacy on a coherent set of moral claims regarding the demands of love and justice in light of human nature. King never shirked from staking out challenging claims of moral truth, even while remaining open to working with those who rejected those truths. His example should inspire the legal profession as a reminder that truth-telling, even in a society that often appears morally balkanized, has the capacity to move hearts and minds. At the same time, his example should give the profession pause, for King's success would have been impossible absent his substantive views about human nature and the ends of justice. This book is an effort to reframe our conception of morality's relevance to professionalism through the lens provided by the public and prophetic advocacy of Dr. King.
Friday, January 18, 2013
Guns and a Culture of Life
Central to our faith is the core belief that from the greatest tragedy in world history (the crucifixion) God transformed the world with the greatest triumph in world history (the resurrection). In the aftermath of the string of mass shootings in the United States, culminating in the December Sandy Hook massacre, many of us wonder what lessons could possibly be taken from these horrible events to transform our society in any positive way?
Earlier this week, the President unveiled his plan to reduce gun violence. It is a comprehensive approach to the gun violence in America that killed 31,672 people in 2010. While no approach is perfect, this plan addresses background checks to limit those who have access to firearms, the types of weapons and ammunition available for purchase, the need to restart research of gun violence which was banned at the behest of opponents of gun control, more comprehensive legislation, and improved mental health treatment.
Criticism of this plan rests mainly on the argument that such measures will not stop all the killing and if someone wants to kill, they will do so. That is true. Such an argument misses the point. The lack of a perfect solution is not an excuse to have no solution at all. Sadly, the state of the human condition is that some people will always commit crimes – even unspeakable horrors. Yet, do we as a society throw up our hands and abdicate the use of the law to make effective changes simply because the law will not stop 100% of the crime? Imagine if we weakened our anti-terrorism efforts because such measures cannot stop all terrorists. We would never do so.
The critics ask the wrong question. I suggest there is a better question than "Will these measures stop all gun violence?" Rather, we should consider invoking John Paul II and ask, "Do these measures offer an opportunity to replace a 'culture of death' with a 'culture of life?'" I suggest they do.
The "culture of life" concept is associated most often by the media with a pro-life stance surrounding the issue of abortion. However, in 1993, when reporting on John Paul II's visit to the United States where he outlined the "combat between the culture of death and the culture of life," the New York Times described it to also include concern regarding "urban violence" and "a broader assault on human life." (New York Times, August 16, 1993)
This is consistent with the statement issued by the United States Conference of Catholic Bishops after the Sandy Hook shooting:
It is time for our nation to renew a culture of life in our society.
Sacred Scripture reminds us time and again to "be not afraid." Indeed, we must find within ourselves the faith-filled courage to address the challenges our nation faces, both in our homes and in our national policies.
The statement continues to specifically address gun control. "With regard to the regulation of fire arms, first, the intent to protect one's loved ones is an honorable one, but simply put, guns are too easily accessible. The Vatican's Pontifical Council for Justice and Peace, in their document, 'The International Arms Trade (2006),' emphasized the importance of enacting concrete controls on handguns, for example, noting that 'limiting the purchase of such arms would certainly not infringe on the rights of anyone.'"
A culture of life perspective on these issues transcends a legalistic analysis of proposed statutes. Instead is asks whether measures are promoting an atmosphere of life or a glorification of death. By advocating for a comprehensive approach to firearm violence which includes addressing mental health needs, "nurturing school environments," and improved training for both school counselors and school resource officers we are taking strong step forward.
The litmus test for steps to combat violence cannot only be whether a plan is perfect. No plan will ever pass such a test and society will remain (as no doubt the gun industry wishes) in the status quo. I would argue the status quo is a culture of death. Alternatively, if proposed measures are examined through a lens of the culture of life, society has the potential to move forward and decrease the violence.
A response to Kaveny's response to Winters' response to Kaveny
The title of this post sounds, I know, like a parody of a blog-post title. That said, there's an interesting and important conversation / debate going on, between Michael Sean Winters and Cathy Kaveny, about law, religious freedom, and the HHS mandate.
Here is Kaveny's recent Commonweal column. Here is Winters' response to it, at Distinctly Catholic. And, as Michael Perry mentions below, here are the first two parts of Kaveny's four-part response (!) to Winters. Finally, here is a short post I did, the other day, regarding Kaveny's column.
The primary point of Kaveny's column, as I understand it, and also of "Part 1" of her response to Winters, is that "defining exemptions is not defining religion." (As she notes, one of the arguments often made against the mandate is that it does define religion, and that it does so too narrowly, in a way that wrongly confines religion and religious faith to houses of worship and to institutions that hire and serve co-religionists.) Now, it is true that, in fact, the mandate does not "define religion", in the sense that an anthropologist, theologian, or religious-studies scholar might do. (Indeed, such a scholar might say -- see, e.g., William Cavanaugh, The Myth of Religious Violence -- that the very idea or category of "religion" is more slippery than contemporary law-and-policy debates appreciate.) But, I'm not sure this really gets to (what is for me, anyway) the objection.
Yes, as I said in my earlier post, what religious-exemptions legal provisions (or other religion-touching provisions) are doing is not so much "defining religion" as employing various criteria to identify that which the relevant provision will treat, for purposes of the relevant regulation, as exempt. Still, the "defining exemptions is not defining religion" point is too quick, because it overlooks, I think, the fact that the exemptions in question exist for the purpose of honoring religious freedom. RFRA requires, in many instances, exemptions because RFRA has as its purpose the goal of respecting and protecting religion and religious freedom. So, the criteria that are used to identify that which is exempt are criteria that reflect the government's understanding of what religious freedom is and demands, of why religious freedom and religion are good, valuable, and to-be-respected. The criteria employed in "defining exemptions" tells us something -- they reflect premises -- about religion. And, if one starts from some premises about religion and religious freedom one will end up with different exemptions-criteria than if one starts from others. The criticism of the mandate, and of the administration, is that it started from the wrong premises (also reflected in its misguided -- extremist, actually -- brief in the Hosanna-Tabor case) about religious belief, religiously motivated activity, religious institutions and their role, etc., and that it therefore ended up with an overly narrow exemption -- and exemption that does not, in fact, do what (under RFRA) exemptions are supposed to do.
Kaveny also points out, correctly, that the mandate was not picked out of "thin air" but had, in fact, been "road tested" and upheld by some important state courts. This is true. In her view -- because "procedures" and "motives matter" (and they do) -- this fact cuts against the narrative that the HHS mandate reflects an insensitivity (or worse) to religious freedom. As I see it, though, the fact that the administration selected, from among a variety of alternatives, an unusually ungenerous exemption, notwithstanding the fact that the administration was on notice (through the notice-and-comment process) that a variety of religious groups strongly objected to that exemption, and without considering (as Sec. Sebelius admitted publicly) with care whether the exemption would satisfy the Religious Freedom Restoration Act's demanding requirements, suggests that the mandate was chosen not simply because it had been upheld in California, but because it seemed consistent with the decision-makers' (unsound) premises about the place, value, and rights of religious institutions.
In Part 2 of Kaveny's response -- addressing the (promised) "accommodation" -- she evaluates the (proposed new) exemption, and asks:
In order to answer this question, we have to recognize that claims of religious liberty are never treated as absolute. The government (in the first instance) and the courts (in the final instance) need to look not only at the religious-liberty claims, but also at the purposes advanced by the law in question. Moreover, it needs to look at those purposes in the terms set by the government, not by the religious-liberty claimant. I have seen some bloggers trying to run the religious-liberty argument this way: “The mandate interferes with religious liberty…and it doesn’t serve a compelling state interest because it harms women and children, so it should be struck down.” That’s a no-go. The church can’t put both thumbs on the judicial scale, so to speak. The church can talk about the invasion of its own religious liberty, but the government gets to make the case for the purposes advanced by the law.
It is true that an interest is not rendered non-compelling, for purposes of applying RFRA, simply because the interest does not cohere with the Church's teachings. It is also true, though, that the government's characterization of an interest as "compelling" does not end the matter. In constitutional litigation, courts scrutinize regularly and closely -- in cases where regulations burden fundamental rights -- the government's asserted interests to be sure (i) the stated interest really is the interest, and not just a cloak for something else; (ii) the stated interest really is weighty (and permissible); and (iii) the stated interest is being pursued in a way that burdens the fundamental right at issue as little as possible. Those of us who object to the mandate contend (among other things) that (a) the government's willingness to exempt a great many employers from the HHS mandate altogether undermines its claim that the interest is so compelling as to justify this burden on religious employers and (b) because less burdensome ways of pursuing the interest in question are available, they are therefore required by RFRA. The existence of RFRA, which commits the government to an accommodationist approach, rules out the argument that the mandate is the most convenient way of pursuing its interest.
I look forward to the next two installments!
Thursday, January 17, 2013
Cathy Kaveny's "respondeo" to Michael Sean Winters, part 2
At dotCommonweal, here.
Stinneford, "Punishment Without Culpability"
This paper byJohn Stinneford is very well done. One of the many nice moves that John makes is to connect the issue of culpability as well as the moral condemnation that sits at the heart of criminal law to the Constitution. Here's the abstract.
For more than half a century, academic commentators have criticized the Supreme Court for failing to articulate a substantive constitutional conception of criminal law. Although the Court enforces various procedural protections that the Constitution provides for criminal defendants, it has left the question of what a crime is purely to the discretion of the legislature. This failure has permitted legislatures to evade the Constitution’s procedural protections by reclassifying crimes as civil causes of action, eliminating key elements (such as mens rea) or reclassifying them as defenses or sentencing factors, and authorizing severe punishments for crimes traditionally considered relatively minor.
The Supreme Court’s inability to place meaningful constitutional limits on this aspect of legislative power is often described as a failure of courage or will. This Article will demonstrate that it is actually a failure of memory. Prior to the turn of the twentieth century, the Supreme Court’s jurisprudence was animated by two traditional common law ideas: (1) that there are real moral limits to what the government can do, and (2) that the most reliable way to tell whether the government has transgressed those limits is to analyze the challenged action in light of longstanding practice. In the first half of the twentieth century, the Supreme Court rejected these ideas in favor of instrumentalism, an approach to jurisprudence that sees law as a mere instrument through which government experts can solve social problems in light of new scientific insights. As a result, for several decades the Court seemed to approve a limitless legislative power to define and punish crime, which the Court treated as just another form of regulation.
This approach did not last. Criminal law does not merely regulate: it imposes moral condemnation on the offender in the name of the community. In recent decades, the Supreme Court’s constitutional criminal jurisprudence has moved toward reassertion of the old common law constraints, imposing either moral or precedential limits on the power of the legislature to define and punish crime. But because the Court no longer understands the relationship between morality and tradition, these efforts have mostly failed. This Article will suggest that the only way to develop a constitutional criminal jurisprudence that is coherent, just, and duly respectful of the legislature’s primacy in defining and punishing crime is to return to the common law synthesis of morality and tradition that underlies the constitutional law of crime.
John discusses the Supreme Court's movement toward constitutionalizing a "culpability principle" for criminal law (without actually ever going that far -- I enjoyed the discussion of Powell v. Texas). He grounds this culpability principle in various provisions of the Constitution (see pp. 665-666), most especially the 8th Amendment. There is also a very thorough discussion of several cases I did not know about, evincing in various ways the 19th and 20th century disjunction of culpability and crime, on the one hand, and the changing status of culpability as a constitutional safeguard against criminal punishment, on the other. As to the Court's proportionality decisions, John writes that in Harmelin v. Michigan the Court regrettably unmoored the issue of proportionality from that of culpability, a decision that had unfortunate but predictable consequences in Ewing v. California. And, maybe because I have been writing recently about law and tradition, I enjoyed John's discussion of the relationship between common law, morality, and criminal law.
Law as Tradition: The Inescapability of Tradition
The third feature of law as tradition discussed by Professor Martin Krygier in his article, "Law as Tradition," besides its pastness and its presence, is its transmission or handing down ("traditus" is often translated as that which is 'handed' down, and I have sometimes wondered whether there is a related but somewhat more distant etymological root: 'tra' means across, and 'dita' means 'fingers' in Italian, making 'tradita' transliterate to 'across fingers.' But probably the root of 'dita' is from the Latin, 'dare' -- to give -- making the transliteration, 'giving across'). "Traditions," writes Krygier, "depend on real or imagined continuities between past and present. These continuities may be formalized and institutionalized as they are in the institutions of law and religion, though they need not be." (251) Cultures which have well developed sacred and secular institutions entrust the task of transmission to various sorts of experts ("kings, priests, judges, scholars"), who are arranged in a hierarchy of tradition-interpreting and transmitting authority.
Krygier makes a nice move at this point. He writes that the conventional dichotomy between "tradition" and "change" is false because "the very traditionality of law ensures that it must change. Although authoritative interpreters might police the present to see that it does not stray too far from their interpretation of the past, it is impossible for traditions to survive unchanged." Change can occur deliberately (as when, for example, a new revelation or a new legislation is then incorporated into the tradition) or, in the case of written traditions, simply as a feature of the interpretive instability in the reading of a text (not the wild indeterminacy of text, just its lack of fixity). In written traditions, "the past becomes available for controversy . . . . Written traditions are continually subject to modification. Their transmission necessarily involves interpretation of writings. This ensures change." (252) That is because, in a tradition, texts do not stand alone but must be interpreted so as to be consistent and coherent with the tradition itself. Krygier is not describing only, or even primarily, the interpretive tradition of the common law:
[G]iven the impossibility of univocal interpretation of most complex texts, there is a sense in which legislation forces interpreters to rely more rather than less heavily on tradition than does the common law. For a relevant statute, still more a code, forces itself on an interpreter. Its words cannot be sloughed aside as dicta or dissent; they have to be interpreted. Since their meanings often will be plural, and since later lawyers nevertheless have to give meaning to them, they are bound to repair to interpretations which have become settled and accepted and/or to canons of statutory interpretation which, as we have seen, are highly traditional. (254)
This is a pretty neat point, and one might extend it to constitutional interpretation. Here's a passage from Edward Shils's wonderful book, Tradition, quoted by Krygier, which seems pertinent to constitutional interpretation today:
It might be the intention of the recipient to adhere 'strictly' to the stipulation of what he has received but 'strictness' itself opens questions which are not already answered and which must be answered. If it is a moral or a legal code, or a philosophical system, the very attempt by a powerful mind to understand it better will entail the discernment of hitherto unseen problems which will require new formulations; these will entail varying degrees of modification. Attempts to make them applicable to particular cases will also enforce modification. Such modifications of the received occur even when the tradition is regarded as sacrosanct and the innovator might in good conscience insist that he is adhering to the traditions as received. (Shils, 45)
Cathy Kaveny's "respondeo" to Michael Sean Winters, part 1
At dotCommonweal, here.
Wednesday, January 16, 2013
The Law as the Bully’s Pulpit
Bullies have been around for a long time. Those famous who have a bearing on this posting include Henry VIII. I mention Henry because the tactics he employed with the law have clear parallels with the matter about which I shall discuss today. Sadly, tyrants—bullies—like Henry don’t seem to disappear. The bully can be the thug who wants everything for himself; the bully can be one’s co-worker, the executive, fellow student, or even the professor who insists on things being done his or her way. Sometimes the bully can be the public official who wants policies or laws to reflect a particular constituency’s interests. The bully can also be the lobbyist-advocate who wants more than that to which he or she is entitled by objective reason, equity, and justice. In many contexts, what makes a person the bully is the belief that the only thing which matters is what the bully thinks is right whether or not it is right.
In this context, I recently read with great interest Professor Donn Short’s SSRN manuscript entitled “Queering Schools, GSA [gay-straight alliances] and the Law: Taking on God.” [manuscript is available at SSRN and is here: Download Short's Taking on God] Professor Short is an Assistant Professor of Law at the University of Manitoba. Like many of us here at the Mirror of Justice, Professor Short is a teacher of the law; moreover, he is against bullying—or at least a certain kind. Nothing wrong with that initially, but as I continued to read his SSRN manuscript, I wondered if this advocate against bullying might be the model of a new kind of bullying which he finds not only acceptable but necessary.
The central theme of his essay to which I refer appears to be a critique of claims for religion-based exceptions to state-and-law mandated curricula for all schools. These curricula would combat “unjustifiable curtailment of citizenship for queer people and would undermine the equality gains that have been made by this group.” Throughout this essay, Professor Short addresses equality, bullying, pressure on “queer” students to conform to “hetero-normativity”; moreover, in his presentation he contends that the “arguments against equality claims for queers are pretty much exclusively and overtly religious in nature.” However, he does not cite the evidence upon which he bases this claim. In addition, Professor Short does not define what he means by “equality” nor does he acknowledge that many counterpoint arguments made by religious and non-religious people alike who disagree with his perspectives are not “overtly religious in nature.”
At this site, I have argued the importance of equality on many important and fundamental fronts, but I have also pointed out that people are not equal in many ways (hence the basis of human diversity and pluralism about which we hear so much)—and one of those ways treads upon the subject matter of Professor Short’s essay, human sexuality.
To cut to the chase, Professor Short advances the position that the law is to be harnessed in order to control the “transformative possibilities” of education and in order to establish the “comprehensive queering of schools.” While he uses the existence of bullying students who claim to be “sexual minorities” as the pretext, his real ambition is to ensure that there is no exception to his plan for a uniform education that embraces the model of human sexuality which he champions. The purpose of his essay is to target the Catholic Church and the schools which she supports and directs and to make the Church and her institutions bow to positions that are antithetical to the faith.
Furthermore, Professor Short asserts that there is a “mistaken belief” amongst “religionists”—especially Catholic institutions—that Church institutions can “ ‘run their own show’ ”. He is lucid in his condemnation of Church institutions which do not reflect and embrace his views when he asserts that “religious dogma in some way justifies ignoring or indeed allowing the continue the harassment of queer students within the Roman Catholic school system.” After identifying what he considers to be the enemy of society, he offers a solution to this offensive predicament, and it is the law—or more specifically, its commandeering by the interests that he holds dear but which conflict with the objectively reasoned views of many of his fellow citizens. By retooling the law according to this author, the ability of the Church to decide matters that transcend the state’s legitimate interest of ensuring that all educational institutions provide a sound, fundamental education can be reined in. He is clear about his plan for state commandeering of all education by retooling the law when he discusses “the need for well-articulated ministerial intervention.”
But is this not bullying by another name all for the cause of achieving “social justice for queer youth” at the expense of religious freedom—a freedom that is textually protected by the law?
While he insists that his plan is to demonstrate “the need to consider the law’s potential from a pluralist perspective,” it is clear that Professor Short is interested in neither pluralism nor diversity in education but tyrannical uniformity.
He is also not interested in “inclusive education” as he states in his conclusion; rather, he insists upon “anti-oppressive education” that will assure the “cultural transformation” upon which he insists but is prevented by the existence of Catholic education in Canada. It is clear that his objective is to target institutions which do not reflect his view of human nature; moreover, he contends that his proposal will rid the world, or at least Canada, of the sort of bullying that targets “queer” students. As he asserts, “It is clear that the culture of schools must be transformed.” This goal will be reached by altering the curriculum of every school “to include queer content and to recognize queer families.” However, he knows that his proposal requires the cooperation of the state and its juridical institutions which possess the muscularity to close any institution, especially the Catholic ones he has targeted, which fail to be transformed in his image. But this is bullying, pure and simple.
Here I again rely on the warning of Christopher Dawson that I have used several times before, but it seems all the more necessary to recall Dawson’s prophecy pertaining to things like Professor Short’s vision of transformative education. As Dawson said about sixty years ago,
[I]f Christians cannot assert their right to exist in the sphere of higher education, they will eventually be pushed not only out of modern culture but out of physical existence. That is already the issue in Communist countries, and it will also become the issue in England and America if we do not use our opportunities while we still have them.
Although Dawson was speaking about higher education, his point is applicable to primary and secondary education as well be it in England, the United States, Canada, or elsewhere. The bully is once again on the school yard, but this time his target is those whom he considers as bullies but are not.
RJA sj
Tuesday, January 15, 2013
A united witness of the Abrahamic faiths
The Chief Rabbi of Rome has joined his voice to the voices of the Grand Rabbi of France, French Muslim leaders, and the Pope on the question of marriage: http://chiesa.espresso.repubblica.it/articolo/1350402?eng=y
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