Over at Concurring Opinions, there are a couple of posts (here and here) that should interest MOJ readers. My friend John Inazu has a typically thoughtful piece in the Hastings Law Journal about Justice Ginsburg's religious freedom jurisprudence, focused on a forceful criticism of her opinion for the Court in CLS v. Martinez. The post at Concurring Opinions just prior to that is a short discussion of Justice Pierce Butler (a Catholic, as it happens) and his courageous dissent in Buck v. Bell, which provides a nice opportunity to point readers to the Vanderbilt Law Review article by former-Minnesota prof David Stras (now on the Minnesota Supreme Court) on Justice Butler's unduly neglected legacy.
Wednesday, July 25, 2012
Inazu on Justice Ginsburg in CLS v. Martinez and Remembering Justice Butler
State, Society, and Economics Course in Rome
I apologize for being absent from blogging the past several weeks while teaching in Rome and adapting to a new administrative role as vice dean at Villanova. I go away for a while and come back to learn that the Supreme Court upheld (mostly) the Affordable Care Act and that Rick and Nicole Garnett have a new son!
Speaking of Rome, the course I taught was a survey of some major themes in the Catholic social tradition, with readings from Augustine, Aquinas, Maritain, and the modern papal encyclicals and conciliar documents. Interested readers can see the syllabus here. Guest speakers Father Robert Dodaro, OSA and Father Stephen Brock brought their great expertise to bear on our discussions of Augustine and Aquinas, and I took the class on a side trip to the magnificent Augustinian mother church in Rome, the Basilica Sant'Agostino, which includes the tomb of St. Monica and a wonderful Caravaggio (Madonna di Loreto).
Tuesday, July 24, 2012
Petition / Protest regarding Notre Dame's challenge to HHS mandate
Brian Leiter notes, here, that a number of faculty, students, staff, and alumni have signed a petition opposing the University of Notre Dame's decision to challenge the HHS preventive-services mandate in court, and urging the University to "reassess its decision and change its course of action." As I argued here, though, the lawsuit is (unfortunately) needed to vindicate the University's religious-freedom rights and, in Fr. Hesburgh's words, to challenge the government's "overreach."
This is kind of a dog-bites-man story, I realize -- of course there is disagreement among the Notre Dame community about the lawsuit, as about everything else. Still, I was disappointed that the petition -- which was signed by some people I know and respect -- advanced what strike me as weak and underdeveloped arguments.
After urging that, given the "doctrine of double effect", it would not actually contrary to Catholic teaching for the University to comply with the mandate (a matter about which I gather informed and expert theologians reasonably disagree), the petition makes a number of conclusory and inaccurate legal assertions. First, it states, without elaboration, that the mandate "plainly" is a neutral law of general applicability. Actually, this is not "plain" at all, for reasons discussed in detail in the University's complaint and elsewhere.
Second, the signers contend that the policy "advance[s] a compelling state interest", which it might, but fail to note that even a policy that advances such an interest must do so in a narrowly tailored way. The mandate does not do so. That is, there are other ways of promoting the government's asserted compelling interest that would be less burdensome.
Third, the petition reports that when "members of a particular sect enter into commercial activity by choice, the limits they accept on their own conduct as a matter of conscience cannot be superimposed on the statutory schemes that are binding on others in that activity." In fact, though, the entire point of the Religious Freedom Restoration Act is to say that, sometimes, they can.
The petition exhorts us to "not forget the words of Supreme Court Justice Antonin Scalia, who in 1990 warned against making 'the professed doctrines of religious belief superior to the law of the land," but again misses the important legal point that Justice Scalia, in Smith, was addressing the question of judicially created exemptions for religious objectors, as opposed to legislatively created ones, like the Religious Freedom Restoration Act, which he clearly approved.
Finally, and going back to the "double effect" point, I should be emphasized that requiring culpable cooperation with evil is not the only way that state action could burden religious-freedom rights, within the meaning of the First Amendment or the Religious Freedom Restoration Act.
I understand that many in the Notre Dame community support the preventive-services mandate as a policy matter and oppose, for various reasons, the University's lawsuit, but this particular petition makes legal arguments that do not engage very well existing law.
For Wisconsinites (and other Church-Staters)
I'll be on Wisconsin Public Radio's "At Issue With Ben Merens" from 5-6 pm eastern time, talking about the separation of church and state in the public school context as well as the 7th Circuit's Doe v. Elmbrook School District decision discussed below.
UPDATE: You can find the podcast here (just look for the phonetic spelling of my name).
Seventh Circuit: Holding a High School Graduation in a (Richly Iconographically Religious) Church Violates the Establishment Clause
The Seventh Circuit has come down with a ruling that holding a public school graduation in a church violates the Establishment Clause when the church has an indeterminate number of religious icons and other material which run afoul of the standards that the Supreme Court has encrusted on the Establishment Clause. It was undisputed that the choice to hold the graduation in the church was made for the sake of convenience, price, and accommodation of the large number of students, and not for any religious reason. It was also undisputed that no reference was made to religion during the graduation ceremony.
Do read Judge Ripple's sensible, moderate, and absolutely convincing dissent. But by far the most pungent lines appear in Judge Posner's dissent -- and boy are there a lot of them. Taking the prize:
The best that a judge of determined neutrality faced with a case such as the present one can do is to be guided by Gibbon’s aphorism (from chapter 2 of the Decline and Fall) that “the various modes of worship, which prevailed in the Roman world, were all considered by the people, as equally true; by the philosopher, as equally false; and by the magistrate, as equally useful.” For “the Roman world” substitute “the United States” and for “the magistrate” substitute “the judge” and one has the right starting point for the analysis of this case. The judge should not be concerned with the truth or falsity of any religious faith but should regard the various faiths as “equally useful” from the standpoint of society, in recognition of the importance that Americans attach to religion, the diversity and intensity of their religious beliefs and observances, and the bitterness and strife that the government’s taking sides among competing faiths would engender.
Other memorable lines from Judge Posner's dissent:
Monday, July 23, 2012
“Politics and the Pulpit”
The July 30th issue of America Magazine will have an article entitled “Politics and the Pulpit—Are some bishops putting the church’s tax exempt status at risk?” written by Nicholas Carfardi a law professor and former dean at Duquesne University School of Law who is also an acquaintance, friend, and colleague of many of us at the Mirror of Justice. Unfortunately, one needs a subscription to read the Nick’s article online, but there is one link [HERE] that provides more information about the views expressed in his article. Today I write to convey my disagreement with Nick and to explain why I think he is wrong in criticizing two bishops who have exercised their teaching office on public policy issues with which Nick and others probably hold opinions different from the bishops.
In particular, Nick focuses on the recent activities by two American Catholic bishops which he asserts are causes of concern for the Church (perhaps just the dioceses) in preserving her tax-exempt status under Section 501(c)(3) of the Internal Revenue Code. His first anxiety is the homily given by Bishop Daniel Jenky (Peoria) in April of this year on the “extreme secularist agenda” of the Administration. Having read the bishop’s homily, to which Nick refers, several times, I disagree with Nick’s conclusion that what the bishop said in any fashion jeopardizes the Church or the diocese because it was somehow an inappropriate crossing of a line that should not be crossed by an ecclesiastical official. The second target presented in Nick’s essay is Archbishop Peter Sartain of Seattle who asked all the parishes in the archdiocese to support the Referendum 74 initiative in support of giving the people of the state of Washington the ballot box right to confirm or seek repeal of the same-sex marriage legislation that was recently approved by the Washington state legislature. Nick concludes that both of these actions by the bishops endanger the Church’s tax exempt status because they constitute electioneering or lobbying that is not permitted by Section 501(c)(3).
If that is the case and Nick is correct, then the actions taken since the mid-1950s (when the first Congressional restrictions on certain policy activities by churches and religious organizations went into effect) by individual bishops and the United States Conference of Catholic Bishops, and its predecessor the National Conference of Catholic Bishops, urging the faithful’s action on the following matters [this is not an all-inclusive list] would also have put at risk the Church’s teaching the faithful on important and, yes sometimes, conflict-ridden issues:
1963—support for the emerging civil rights legislation before the Congress
1966—the statement on peace in Vietnam; the statement on poverty
1967—the statement on the pending anti-poverty legislation
1969—the statement on state abortion law liberalization and the further statement in protest on the U.S. Government programs against the right-to-life and artificial contraception
1973—the statements (post Roe) on abortion and anti-abortion amendments; the statement on the reform of correctional institutions
1974—the statement against capital punishment; the statement on farm labor legislation
1975—the statements on U.S. domestic food policy; the statement on the crisis in housing
1977—the statement on DNA research; the statement on human sexuality
1978—the statement on the arms race
1980—the statement on the military draft
1983—the statement on reform of social security; the statement on broadening tuition tax credits
1984—the statement on arms control and (un)just war
1985—the statement against the MX missile; the statement on tax reform and the poor; the statement on immigration reform
1986—the statement against military aid to the Contras in Central America; the statement on the budget deficit; the statement “Economic Justice for All”
1987—the statement on welfare reform; the statement on fair housing amendments
1988—the statement on civil rights and new and pending legislation; the statement on immigration reform
1989—the statements on food policy and third world debt
1990—the statement on moral education in public schools
1991—the statement on euthanasia; the statement on the permanent replacement of strikers; the statement on national environmental policy
1993—the statement on comprehensive health care reform
1995—the statement on policy priorities for welfare reform; the statement on arms trade
1997—the statement on capital punishment
and the list goes on…
In addition to Catholic officials speaking out on the important public policy issues of the day, we also have to think about other churches and religious organizations which also have the benefit of Section 501(c)(3) provisions and their activities in elevating consciousness and exhorting action by the faithful. For example the Episcopal Church sponsors the Episcopal Policy Network which urges legislators and citizens to consider the church’s views on sometimes-divisive issues dealing with STDs, refugees, and environmental protection among other policy issues. In this context, Nick’s concerns cannot stop with the Roman Catholic Church. One particular advocacy matter currently pursued by the Episcopal Church is encouraging its members to thank the Senate (i.e., the Democrats) for its lead on poverty-focused assistance programs and to encourage the House (i.e., the Republicans) to do the same. By Nick’s standards this should also be problematic electioneering and lobbying. As Nick states, “…once a church’s advocacy goes beyond issues and, without a legitimizing invitation from the legislature itself, addresses a pending law—urging voters directly (called grassroots lobbying) or urging legislators to act (called direct lobbying)—a line has been crossed.”
It seems that the line which is of concern to Nick has been crossed for a long time when one looks at the long record of the Catholic bishops and our Episcopalian friends on the pressing issues of the day. I would hope that Nick’s concerns are not generated by his agreement with some views or disagreement with differing perspectives on those public policy and legislative initiatives which can and do divide public opinion. If that is the case, then his criticism is all the more weakened. The world of politics and public policy formulation has long been characterized by the division of different views. It would be not only strange but mistaken to insist that only some views on these matters may be expressed by churches and religious organizations but others may not.
RJA sj
More religious-freedom difficulties in China
As Nina Shea reports, here, the PRC and its "Chinese Patriotic Catholic Association" are moving strongly against Catholic Bishop Thaddeus Ma Daqin, who "has not been publicly seen since July 7, the day he was ordained auxiliary bishop of Shanghai and the day when he dissented from state religious policy. Catholic sources report that the 44-year-old Bishop Ma is now being detained under a form of house arrest, cynically described as a 'retreat' by state religious authorities." God bless him.
John Joseph Garnett
Pope Leo XIII -- whose writings and thought are, of course, very important to those of us interested in church-state relations and "Catholic legal theory" -- died on July 20, 1903. On that same day, in 2012, my second son, John Joseph Garnett was born!
St. John Fisher and St. Joseph the Worker, pray for us!
And, though he's not (yet!) recognized as a saint, we are big fans -- and will be hoping for the intercession -- of Bishop "Dagger" John Joseph Hughes. (More about him here.)
Sunday, July 22, 2012
"The Way We Fear Now"
or "The Search for Humanity Continues." I was struck by the contrast between Gary Hart's (remember him?) reflection on the shooting in Colorado with Ross Douthat's reflection.
Hart: "[W]hen one human kills a dozen or more other humans who represent no threat to him, nothing seems to make sense, nothing is reasonable or rational. It causes us to question ... whether there is a dark side to human nature beyond the reach of reason and sanity ..."
In contrast, knowing that there is a dark side to human nature Douthat can name the particular manifestation of evil: "Nolan’s films are ... effective dramatizations of the Way We Fear Now. Their villains are inscrutable, protean, appearing from nowhere to terrorize, seeking no higher end than chaos, no higher thrill than fear. Their hero fights, not for truth, justice and the American Way, but for a more basic form of civilizational order: He knows his society — his Gotham, our America — is decadent and corrupt in many ways, but he also knows that the alternatives are almost infinitely worse."
And, Douthat can offer a response: "the most important defense of civilization takes place only after tragedy has struck, and innocents have perished. And the real heroes are neither police nor politicians nor an imaginary batsuited billionaire, but the people — whether in Columbine or Lower Manhattan or now Aurora, Colo. — who carry one another through the valley of the shadow of death, and by their conduct ensure that the Jokers and James Holmeses of the world win only temporary victories."
Saturday, July 21, 2012
Evangelical Pruning in Action
Contributors and readers of the Mirror of Justice may recall that this site has often been the forum in which Catholic identity, especially in the academy, is robustly discussed. These discussions, moreover, have reflected different views on the matter. In the past in my contributions addressing this general topic, I have, on occasion, referred to a theme raised by Archbishop Michael Miller when he was Secretary for the Congregation for Catholic Education. In addresses that he gave in the United States about six years ago, the archbishop raised questions about the Catholic identity of colleges and universities. He essentially indicated that the institution had a choice to make: did it wish to be Catholic or not. He emphasized, though, that whatever election the institution made, competent ecclesiastical authorities had the right and responsibility to make the final determination on whether the institution could use the name Catholic, which is not a mere label but a genuine expression of the institution’s soul and reason for existing. In this context, Archbishop Miller employed the term “evangelical pruning” by which competent authorities might conclude that the moniker “Catholic” would have to be removed from the institution’s name and/or identity if it were, in fact, no longer Catholic.
A few moments ago the Holy See announced that it has, in accordance with the law of the Church, stripped the Pontifical Catholic University of Peru of the right to use the words “Pontifical” and “Catholic” in its title. [HERE] One of the reasons given for doing this was the Holy See’s conclusion that the university, after periodic requests, has failed to adapt its statutes in such a way that they would comply with the Apostolic Constitution Ex Corde Ecclesiae. After extended dialogue on the matter, the university informed the Secretary of State that the university is unable to implement the requirements of the Apostolic Constitution.
While the Holy See has clearly indicated the Church’s hope that the university will reconsider its position and thus comply with the Apostolic Constitution, the ball is now in the court of the university, and the question remains: what does it want to be. When the gardener prunes, there is hope that the living organism will respond affirmatively and eventually become strong once again and bear much fruit. The anticipated fruit of this evangelical pruning involving the ____ ____ University of Peru is that the university may realize that it has a chance to carry the message of Christ to people, to society and culture according to the mission of the Church in the world. But if the institution concludes otherwise, what remains will be a withered branch.
A question emerges from this action taken today: will this decision have a broader impact going beyond the ___ ___ University of Peru? I think so, but time will tell. Nevertheless, the question for other academic institutions who rely on the name Catholic, Jesuit, Dominican, Franciscan, Benedictine, etc. will be the same: what do you want to be? Do you wish to be Catholic or not?
RJA sj
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