Thursday, December 1, 2011
I was delighted to receive today my copy of John Inazu's hot-of-the-presses book, "Liberty's Refuge: The Forgotten Freedom of Assembly" (Yale). To quote one Paul Horwitz, "This is a splendid act of retrieval. . . . Thoughtfully argued, beautifully written, and drawing on a wealth of sources, Inazu's book is a valuable contribution to First Amendment law and theory."
Congrats, John!
UST's Theology department is hosting a conference in September on "Vatican II: Teaching and Understanding the Council after 50 Years." The call for papers asks for 300-word proposals by Jan. 30, 2012, on a range of topics that may be of interest to MOJ readers:
Much has changed in our Catholic schools, colleges, and universities in the fifty years since the opening of Vatican II on October 11, 1962. Catholics still make up a significant part of the student population but now they study alongside of students from many different faith traditions and non-believers. Theology and Religious Studies courses are still part of the core curriculum for undergraduates, but who teaches, how we teach, and even what we teach have all changed dramatically over the years. The Council has also influenced how we engage other academic disciplines. Students may be just as likely to encounter Catholic Social Teaching, for example, in their Business or Social Work courses as they would in their Theology courses. Changes such as these have set the stage for renewed discussion about teaching and understanding the Council in today’s world.
“Vatican II: Teaching and Understanding the Council after 50 Years” has three interrelated objectives. First, it will examine the effects of Vatican II in shaping the methods and content of our work as educators and scholars. Second, it will consider how theological reflection on the experiences of teaching since the Council has shaped our understanding of the event itself. Third, it will look more broadly at the role of Catholic colleges and universities in educating students to be agents of the proper development of human culture for “the good of the community and of the whole society” (Vatican II, Gaudium et Spes §59; see also John Paul II, Ex Corde Ecclesiae §32).
Here is the order of dismissal. The DCOHR did not reach CUA's and President Garvey's RFRA claims, relying instead on an interpretation of the DCHRA. One important reason, in the DCOHR's view, for dismissing the complaint was that to do otherwise would lead to absurd results, such as compulsory unisex bathrooms and compulsory unisex locker rooms. Better to hold all of these practices outside the ken of the DCHRA.
I applaud the decision. At the same time, I think it is extraordinary that in the current legal landscape, we are reduced to depending on the absurdity of forcing everyone, even if against their will, to accept unisex bathrooms, in order to conclude that a private religious institution like CUA can have men and women sleep in separate dorms. The toilet: our safety-net of common sense.
Onto the next Banzhaf complaint against CUA alleging discrimination against Muslims, to which not a single Muslim student has put his or her name.
John Allen, always worth reading, has a story about the closing of the Embassy to the Holy See in Ireland and the possible future closings, at least among Western nations, that may be on the way. The primary causes are three, he says: the desire to cut costs; "a perception that the Vatican is less internationally engaged and less effective under Pope Benedict XVI than Pope John Paul II”; and the effect of the sex-abuse scandals, which have made the political climate more favorable to the closings than it otherwise would be.
I also thought these lines were interesting:
Vatican diplomats today, [Western ambassadors] say, are highly focused on issues of religious freedom and anti-Christian persecution, but sometimes less interested in other matters . . . . Most observers say that if there are to be additional closures or downsizings, it’s more likely, at least in the short term, to come from Europe rather than the United States. It’s a long shot, they say, that a Democratic president who already faces a rocky relationship with the Catholic church would take such a step — especially heading into 2012 elections in which the “Catholic vote” will once again be in play.
I wonder why Western ambassadors would consider it worthy of complaint that Vatican diplomats are specially concerned about issues of religious freedom and Christian persecution. It might be that these issues were not as salient during the papacy of Pope John Paul II, but that seems unlikely. More probable is that the atmosphere within which these issues are pressed, and the manner in which claims of religious freedom are received by Western governments, has changed. And as respects the American election, that'll be over next year.
Wednesday, November 30, 2011
Joseph Bottum has an (I think) intriguing essay up at Public Discourse, called "The Authority to Kill," in which he presents an argument that I remember hearing at a conference, at Notre Dame, about 12 years ago, but not since. In a nutshell, Bottum's point is that there are some powers that some, but not all, governments (legitimately) have and exercise? Obviously, not all governments are vested by their constitutions with the same powers, but these variations among different jurisdictions' positive laws is not Bottum's subject. Instead, and focusing on the death penalty and war-making, Bottum asks whether there are some "forms of government" that may legitimately execute murderers, or go to war, while some others may not. Are there some forms of governments that lack what it takes to apply the death penalty "because its killers deserve to die?"
Check it out.
I am less skeptical of Mitt Romney's "change of heart" on abortion than others are, but critics should check out the report of Stanford's William Hurlbut, who counseled Gov. Romney about embryonic development in the course of the Massachusetts debate over embryonic stem cell research:
"Several things about our conversation still stand out strongly in my mind,” Hurlbut told me. “First, he clearly recognized the significance of the issue, not just as a current controversy but as a matter that would define the character of our culture way into the future.
“Second, it was obvious that he had put in a real effort to understand both the scientific prospects and the broader social implications. Finally, I was impressed by both his clarity of mind and sincerity of heart. . . . He recognized that this was not a matter of purely abstract theory or merely pragmatic governance, but a crucial moment in how we are to regard nascent human life and the broader meaning of medicine in the service of life."
Check out (my student) Michael Fragoso's piece, over at Public Discourse, called "The Costs of Taking Conscience." In it, he notes (among other things) that the move to limit the rights of physicians and nurses to refuse to participate in abortions will reduce the supply of physicians and nurses in important fields -- a result that those who purport to care about health-care access and reform should want to avoid.
Tuesday, November 29, 2011
I cannot remember if others have mentioned it here at MOJ, but I recently received a copy of Joel Nichols' (St. Thomas) really engaging edited volume called Marriage and Divorce in a Multicultural Context: Multi-Tiered Marriage and the Boundaries of Civil Law and Religion. Check it out. The various chapters will be of interest, I'm sure, to Catholic Legal Theory types, dealing as they do will all kinds of family-, subsidiarity-, pluralism-, and legal-moralism-related questions.
Here is my back-cover blurb:
"The institution of marriage is ancient and everywhere; it is also increasingly vulnerable and contested. It involves relationships that are intimate and private; at the same time, it makes contributions and has consequences that are social and public. It is both a sacrament and a state-action; it is both prior to, and pervasively structured by, the law. Responding to these facts and tensions, this engaging collection of interdisciplinary essays by a diverse array of legal scholars explores carefully the provocative possibility that marriage can and should be dealt with in different ways, in different communities, by plural authorities. They ask whether it is possible, justifiable, and desirable to separate marriage's private and religious dimensions from the coverage and concern of the state's power, and call our attention to both the attractions, and the dangers, of such a move."
- Richard W. Garnett
Professor of Law and Associate Dean, Notre Dame Law School
The exchange below between Rick and Eric Bugyis, as well as Rob's comment to Rick's post, has motivated me to raise something I have been thinking about with respect to our current free exercise regime when it comes to religious exemptions. My question is really one about political circumstance rather than doctrine or history or constitutional structure.
Accept the following two conditions as given for purposes of this question. (1) Religious liberty generally -- and the question of religious exemptions in particular -- seem to be becoming a cardinal issue for religious organizations, including the Catholic Church; and (2) The tenor of both governmental and popular attitudes toward such exemptions is deeply skeptical -- indeed, skeptical even from those within the religious tradition themselves -- verging sometimes even on the hostile.
The question is this: Under these two conditions, why would one prefer an interpretation of constitutional law in which religious exemptions are never required, no matter how grave the burden to the religious individual or organization, and no matter how minimal the state's interest in enforcing the law against the organization?
For purposes of answering the question, put to the side non-prudential answers. For example, I understand that one could say that the best historical reading of the FEC is that it only protects what Philip Hamburger has called "freedom from penalty on religion." Or one could believe that Justice Scalia's view in Smith was the best reading of precedent, or that it is the most legitimate from a structural point of view. I'm not interested in those kinds of answers. What I want to know is, from a prudential standpoint and in light of 1 and 2, why would we desire a system in which for all intents and purposes no religious exemptions are ever constitutionally required?
Here's one possible type of answer. Supporters of Smith are optimists about society's capacity, and its wisdom, to work out the answers to the religious exemption question for themselves. People might go astray, they might make mistakes, but in the long run the best outcomes will reflect popular negotiations and the courts should basically stay out of this process. Opponents of Smith are pessimists about what society will produce. Or, perhaps more accurately, their pessimism about popular wisdom impels them to want some kind of substantial judicial check (of greater or lesser power) on what the populace produces.
A Smith supporter might counter that Smith opponents are equally optimists about the capacity of judges to arrive at satisfactory answers to the exemption issue. But I don't think that's quite right. Smith opponents are pessimists about everybody when it comes to the exemption issue. The reason that they envision a greater role for judges is that they expect that the populace sometimes, perhaps often, will get it wrong. The opponent wants an additional chance to make a correction, and the courts supply that additional chance. I recognize that the pre-Smith religious exemption regime was not exactly teeming with examples of the Court requiring a religious exemption; and depending on the pessimist's view of the substance of the case, that might make the pessimist feel either deluded or justified. But in an environment where there is a sense of both the increasing importance of religious exemptions and increasing hostility to those exemptions, it strikes me that the pessimist's position is not entirely without warrant.
At the Commonweal web site, Eric Bugyis lodges what strikes me as a number of misplaced objections to the Catholic bishops' religious-freedom-grounded case for an exemption from the proposed contraception mandate. (I set out my own views about the religious-freedom problems with the mandate in USA Today yesterday.)
Mr. Bugyis writes: "First of all, the issue is not over how and to whom religiously affiliated institutions minister, but it is about who is doing the ministering." In fact, though, the proposed religious-employer exemption in the interim-final-rule mandate does make it relevant "how and to whom religiously affiliated institutions minister."
He writes: "If non-Catholics are being employed to teach or doctor in a religiously affiliated institution, why should they be denied coverage for services that have been deemed medically necessary by a board of medical experts for all citizens?" Let's put aside, for present purposes, the doubts one might well have about whether "preventative services," as defined in the interim rule, are actually "medically necessary" (notwithstanding their having been declared so by a "board of medical experts"); the definition of "preventative services", and the content of the mandate, are (at least) as much the product of ideology and politics as of medical expertise. Why should it be the case that a religious employer loses the right -- or just the ability -- to act in accord with religious teaching simply by virtue of hiring some non-co-religionsts (who, presumably, accept the position voluntarily and with knowledge of the employer's religious character)?
He then asks, "If the bishops are so scared of being defined out of their 'religion' by the state, maybe they should divest themselves of 'secular' ministry completely." I'm not sure if this is meant to be a serious point, or just a snarky one. Why shouldn't the bishops prefer resisting government efforts to impose religious-character-burdening conditions on their agencies "secular" ministries to abandoning those ministries?
Finally, he says, "It is the bishops who are asking for the right to walk by those in need, if they have deemed that their needs are not really needs at all. It is the bishops who are the 'bad' Samaritans in this parable by opting out of their obligations as members of a pluralistic society." This is also unfair (and, I think, a distortion of the "Good Samaritan" story). How is it that the bishops are asking to "walk by those in need"? And what exactly is the "obligation" of "members of a pluralistic society" that the bishops are seeking to evade?
I understand, of course, that reasonable people disagree over the question whether or not complying with the mandate as it stands would actually violate Church teaching or involve culpable cooperation with wrong (and also, obviously, that many people do not think that we are talking about a "wrong" here at all). Still, it strikes me that Mr. Bugyis's post is more in tension with "pluralistic society" than are the bishops' concerns.
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