Friday, August 3, 2012
A few days ago, I began a short series of posts on why scholarly work and scholarly impact are especially important to Catholic legal education, which I conclude with this post today.
The first point, made here, was that a meaningfully Catholic law school must be an intellectually engaged law school, which is not possible without a faculty also engaged in the quintessential intellectual activity of scholarly research and writing.
My second point, made here, was that through scholarly excellence and law school scholarly prominence, we witness to society the vibrancy of intellectual discourse by persons of faith and counter the anti-intellectual stereotype often attaching to religiously-affiliated law schools.
My third point today is that, as Catholic Christians, we have are called to share the Gospel, both directly and indirectly. The central role of scholarly research in our academic vocation is affirmed by no less a Catholic authority than Pope John Paul II the apostolic constitution for Catholic universities, Ex Code Ecclesiae: “The basic mission of a University is a continuous quest for truth through its research, and the preservation and communication of knowledge for the good of society.”
For some of us on law school faculties that directive means writing directly on Catholic legal theory and applying Christian-grounded principles to the legal and social issues of the day. For all of us it means conducting the search for the truth with integrity and dedication. The search for the truth is hard work -– and for Catholic academics that hard work requires scholarly engagement.
Turning again to the words of Ex Corde, for a Catholic university “included among its research activities, therefore, will be a study of serious contemporary problems in areas such as the dignity of human life, the promotion of justice for all, the quality of personal and family life, the protection of nature, the search for peace and political stability, a more just sharing in the world's resources, and a new economic and political order that will better serve the human community at a national and international level. University research will seek to discover the roots and causes of the serious problems of our time, paying special attention to their ethical and religious dimensions.”
Through our work –- through the excellent quality, regular production, and integrity of our work (comporting with the standards of our discipline) –- we may have a significant influence on the development of the law and of the legal culture. As my former Dean Tom Mengler emphasized (here), one of the most compelling needs for Catholics in this present age involves “the integration of Catholic social and intellectual thought into the mainstream of American legal education.”
And on the call to challenge and inform the culture, Ex Corde speaks as well to the vital importance of scholarly work: “By its very nature, a University develops culture through its research, helps to transmit the local culture to each succeeding generation through its teaching, and assists cultural activities through its educational services. It is open to all human experience and is ready to dialogue with and learn from any culture. A Catholic University shares in this, offering the rich experience of the Church's own culture. In addition, a Catholic University, aware that human culture is open to Revelation and transcendence, is also a primary and privileged place for a fruitful dialogue between the Gospel and culture.”
While our teaching in Catholic law schools advances these goal, we cannot fully participate as academics in the search for the turth without also contributing to the scholarly literature, which reaches audiences well beyond the walls of our own institution and which is preserved in medium so that we can affect the scholarly discourse long after we have departed.
What a tremendous privilege – and a grave responsibility.
Thursday, August 2, 2012
Alana Newman, the daughter of a sperm donor, explains her opposition to SSM through the lens of her concerns about the corresponding increase in the use of artificial reproductive technologies (ART):
Most people approve of gay couples adopting. I am one of these people. Adoption exists as an institution because of human frailty; sometimes people are unable to raise their biological children, but those children still need loving homes. Adoption is not a market that provides children to the adults that desire them. It is for parents to find children who—tragically—cannot be raised by their biological parents. . . . But there’s a big difference between ART and regular adoption. Donor-conception, unlike adoption, is a market where new humans are created to fulfill the demands of the adults that want them. “Commercially conceived” persons are deliberately denied a relationship with one or both of our biological parents. The tragic, primal wound ubiquitous in adoption literature is woven into every commercially conceived person’s life story.
The comment thread raises some interesting questions, including this: if ART is the problem, isn't opposition to SSM a wildly over- and under-inclusive proxy for addressing it?
Vincent Miller, writing in America:
Critics of the Ryan budget have argued that solidarity—the virtue that impels us to active concern for the needs of others—must be used to balance subsidiarity. While this argument is true, it gives too much away, for subsidiarity is an application of solidarity, not its opposite. Subsidiarity is not a principle of small government. It is a two-edged sword. Subsidiarity warns against the overbearing action of any large social actors and also demands that they render assistance, subsidium, when problems are too large to be handled by smaller, local actors.
Amen!
Corporate social responsibility 101: Corporations should not take a stand on moral issues unless it's a really cool cause that all reasonable and properly formed consumers will likewise support, such as environmentalism or GLBT rights.
Journalism 101: Reporters should be careful to avoid any hint that political bias may influence their work unless it's bias against a position that all reasonable and properly formed readers will likewise reject, such as support for traditional marriage.
UPDATE: Given the concern that I wielded the irony sword clumsily here, let me be more specific. The LA Times columnist sees no problem with Patagonia touting environmentalism, but sees big problems with Chick Fil A, Target, and other companies that have taken conservative political positions or made conservative political donations. More broadly, much of the media coverage that I've read over the years of companies like the Body Shop and Ben & Jerry's has been more laudatory of their courageous stands, rather than condemnatory for their controversial posturing. It's been a much different story with Chick Fil A.
On the second point, I find the tenor of the reporter's social media comments to be troubling. I would think the same of a reporter making quasi-public outrageous comments from the anti-GLBT rights perspective as well.
This morning on Public Discourse, R.J. Snell of Eastern University offers a lovely and moving tribute to the late Sargent Shriver, who was, together with the late Robert P. Casey, among the last of the great pro-life liberal statesmen. http://www.thepublicdiscourse.com/2012/08/5992. Casey's pro-life convictions and witness are widely known; Shriver's less so. But, as R.J. shows, Shriver was a forceful and unabashed defender of the sanctity of human life in all stages and conditions. And he deserves to be remembered and praised for that.
In the course of his tribute, R.J. gives some attention to a statement of pro-life conviction published at the behest of Casey and Shriver in the New York Times during the Democratic National Convention in July of1992 under the title "A New American Compact."
http://www.firstthings.com/article/2008/03/005-a-new-american-compact-caring-about-women-caring-for-the-unborn-47
Among the other signers were Eunice Kennedy Shriver, former Treasury Department Secretary William E. Simon, Fr. Richard John Neuhaus, Sidney Callahan, Mary Ann Glendon, Michael McConnell (who was then at the University of Chicago Law School), Jon Levenson (of Harvard Divinity School), James Kurth (of Swarthmore College), Rabbis David Novak and Marc Gellman, former New York Governor Hugh Carey, Leon Kass, Nat Hentoff, George Weigel, and Ron Sider---altogether, quite a collection of prominent liberals and conservatives, Republicans and Democrats.
I know a bit of the background here because, together with my friend William C. Porth, I composed the original draft of the statement at Governor Casey's request, and discussed it at length with the Governor and the Shrivers at two meetings at the Governor's Mansion in Harrisburg, Pennsylvania. Their hope was to build a strong and enduring bipartisan pro-life coalition. They viewed the protection of innocent human life as a principle that should transcend the liberal-conservative divide and unite people of goodwill across party lines. They feared that respect for the sanctity of human life was becoming a partisan issue, and that pro-life liberals and Democrats would soon find themselves politically homeless. Of course, what they feared is what has in fact happened. There are no figures in the Democratic Party or the liberal movement today who fill the shoes of Governor Casey and Sargent Shriver. It is difficult to see how any such figure could rise to a position of leadership in the party or movement. And all of us are the poorer for it.
Wednesday, August 1, 2012
Katrina Lantos Swett and I have published an op ed piece in the Moscow Times on issues of religious freedom in Russia: http://www.themoscowtimes.com/opinion/article/russias-failure-to-protect-freedom-of-religion/462957.html. Katrina is President of the Lantos Foundation (named for her late father, Congressman Tom Lantos) and chairs the U.S. Commission on International Religious Freedom, of which I am a member. I had the pleasure of nominating Katrina for the chairmanship. MoJ friend Mary Ann Glendon is one of our two vice chairmen. Under Katrina's leadership, the Commission is flourishing. The quality of cooperation across party lines (four of us are Republican-appointees, four are Democrats) is exemplary. We are also blessed with a superb professional staff, led by former Ambassador Jackie Wolcott. We have no jurisdiction to examine domestic religious freedom issues, but the Commission is working hard to ensure that U.S. foreign policy will give priority to supporting religious freedom and fighting religious oppression across the globe. Speaking for myself, and not for the Commission or in my official capacity as a member, I would point out that domestic failures to respect religious liberty make it more difficult for us to promote religious liberty abroad. The first and most important way for the U.S. government to support religious freedom internationally is by honoring it at home.
There has been a curious silence in the news and on the blogs about the preliminary injunction in Newland v. Sebelius. True, there are some unique issues involving the nature of the plaintiffs, but the case may indicate the direction that courts which get over the ripeness hump and do reach the RFRA claim might tend (and, as in all things, ripeness will come with time). Here are two questions that interested me.
First, on the issue of substantial burden, I was struck by the fact that Judge Kane did not really answer the question at all. He seemed to assume the substantial burden -- or perhaps to hold the "difficult questions" about substantial burden in abeyance. One of those difficult questions, he said, was: "Can a corporation exercise religion?" Three reactions:
- The answer to this question, posed in this way, must be yes. The Catholic Church is a non-profit corporation, and it certainly can exercise religion -- the free exercise component of the holding in Hosanna Tabor would make no sense if it and other religious non-profits could not. Indeed, some folks have made something like the claim that corporate free exercise, rather than individual free exercise, is the foundational right.
- Though the doctrine is controversial, we do say that corporations have rights of free speech. See Citizens United. If a corporation can speak in a way that is protected by the Speech Clause, why can it not exercise religion in a way that is protected by the Free Exercise Clause? And by extension, why can it not suffer substantial burdens on its free exercise under RFRA?
- Still, there is an interesting issue about who is exercising religion when what we've got is a publicly traded corporation. Suppose the shareholders do not care at all about the religious issue that the corporation has taken a stand on. What does it mean to say in that circumstance that the corporation is exercising religion?
Second, I was surprised at the court's skepticism with respect to the question of compelling interest. The court found that the plaintiffs were likely to succeed on the merits because the government did not show that its interest in the mandate was compelling. The reason: the many exceptions created by both Congress and HHS itself. "[T]his massive exemption completely undermines any compelling interest in applying the preventive care coverage mandate to Plaintiffs." More reactions:
- The court did not need to reach out and decide the question of compelling interest. Here the court really could have just assumed that the mandate advanced a compelling interest and moved right to least restrictive means. That the court found that the plaintiffs were likely to succeed on the compelling interest issue is noteworthy.
- Perhaps the most interesting thing of all to me: (richly deserving the hot pink highlight) note that the court decided the question of compelling interest by making the argument which I have claimed could ground a free exercise challenge as well. That is, that because the regulation contains hundreds of exceptions, it is not generally applicable and therefore falls outside the Smith framework (I have called this the individualized assessment exception to Smith, but for a much more thorough treatment of it, you will need to wait for my book, Tragedy & History: The Quality of Religious Liberty, due out in the spring (sorry for this and all future plugs, of which there will be many)).
- Of course, as a practical matter, courts may just avoid the constitutional question and just focus on RFRA. But to the extent that any do reach the free exercise question, the fact that the individualized assessment argument is already in the air as applied to the RFRA claim might be important.
Kudos to those Democratic members of the House of Representatives who broke ranks with their party leadership to join the vast majority of Republican members in voting against late-term abortions. As for the seven or eight Republicans (see here: http://www.redstate.com/mdannenfelser/2012/08/01/meet-the-8-republicans-who-support-late-term-abortions/) who joined Nancy Pelosi et al. in an effort to protect late-term abortions, the quicker they are defeated by pro-life Republicans in a primary or by pro-life Democrats in a general election, the happier I will be. (I know, I know, there are unusual circumstances in which support for a pro-abortion candidate even over a pro-life candidate is indicated in order to prevent control of the chamber from shifting from pro-life hands into pro-choice hands, but you get my point.) It is, to me, a scandal that Republicans (fortunately, not many, and the number has diminished over the years) who would never dream of voting for a tax increase will support and protect the legal freedom to kill unborn children. Within bounds, questions of the proper level of taxation are essentially prudential in nature. That is not to say that they are unimportant. Nor is it to claim that questions of basic liberty and justice are never implicated in tax policy. But there is no more central or critical moral-political principle than the principle of the profound, inherent, and equal dignity of each and every member of the human family, and, corresponding to that principle, the right of every human being---irrespective of age, size, location, stage of development or condition of dependency---to the basic protection of the laws. That is a principle and a right that Republicans and Democrats alike should honor, however much they may (reasonably and responsibly) disagree on questions of taxation, economic and environmental policy, how best to fight poverty and promote upward social mobility, and prudential questions of every description. (Again, this is not to suggest that prudential questions are unimportant or do not often implicate issues of basic liberty and justice.) Now, someone might ask: "Why condemn a few Republicans when the vast majority of Democrats have thoroughly embraced the abortion license and will defend it politically at almost any cost?" Well, yes. As an ex-Democrat, I'm appalled that the party to which I once gave my allegiance has thrown itself into the abortion abyss. When I was growing up in West Virginia, for me and my family, the Democratic Party was the "protector of the little guy." Alas, that was a long time ago, and a very different Democratic Party. But now that I'm a member of the other party, I'll leave it to my pro-life friends who've stayed in the Democratic Party to fight to turn around that enormous ocean liner. I wish them the very best. For my part, I want to make sure that the Republican Party beomes ever more fully and firmly the protector of (what the late Henry Hyde called) "the littlest guy of all."
