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.

Wednesday, October 12, 2011

SCOTUS Blog Discussion on Ministerial Exception

As the national conversation discussion on church autonomy, the ministerial exception, and the Hosanna-Tabor case continues, the SCOTUS Blog has begun a discussion in its new "Community" pages.  My lead-off comment is here.  In it, I reason toward the broad ministerial exception from the proposition that the Catholic Church can't be forced to hire women priests--a proposition seemingly accepted by everyone at oral argument (but not, sadly, by everyone involved in the public discourse on this issue).  I also thought it important to note in conclusion that

several justices were rightly incredulous at the government’s argument that this is simply an expressive association case--that the two Religion Clauses set no special rules for the relationship between a religious organization and the employees who perform its religious functions. Justice Kagan called the argument “amazing”; Justice Scalia, “extraordinary.” The Court should recognize the obvious: there are ways in which religious organizations are constitutionally different. Moreover, the differences are not exhausted by the rule that courts cannot make theological determinations (although that rule is relevant here too). Forcing the Catholic Church to accept women priests might require no such determinations--simply a ruling overriding the Church’s clear tenet. Yet everyone conceded it would be unconstitutional. At bottom, then, religious organizations have a distinct constitutional freedom to be able to determine who is qualified to serve as a minister.

Reid on State v. Walker

If you have a little time to spend with this paper by Prof. Charles Reid, I highly recommend it.  It's a historical treatment of a late-nineteenth century Kansas case which, Prof. Reid argues, was one of the first to grapple with some of the ideas of privacy which have since become watchwords of our substantive due process law.  It's a long piece, and I haven't finished it yet, but it's well worth it and loaded with interesting historical nuggets. 

Duffy, "Ten Popes Who Shook the World"

I'm definitely looking forward to this book (though it seems to me an oversight to leave out Pope Leo XIII).

Occupy Wall Street v. Tea Party: Should Catholic Identity Shape Our Preference?

Frank Pasquale has an interesting post on the moral authority of Occupy Wall Street.  An excerpt:

In many chilling ways, old social contracts are being broken, with nothing provided in their place. Old models of cooperation between the state and the market are breaking down, as incidents ranging from prescription drug shortages to food safety failures show. The global financial system teeters on the brink of meltdown thanks to a potential "Lehman style event" that regulators still have not managed to adequately monitor, let alone circumvent. These are urgent problems that an entrenched business-government elite has addressed listlessly, if at all. (This is not meant to criticize many well-intentioned front-line personnel, just to note that revolving door dynamics for political appointees and woefully inadequate funding often render their work a mere pantomime of effective enforcement action.) Occupy Wall Street has moral authority because it is addressing these problems. Its critics ought to be joining that process.

As with many other issues, I can't help but wonder about the extent to which being Catholic should inform my view of this movement.  Put differently, should my identity as a Catholic lead me to distinguish in any meaningful sense between the moral authority of the Occupy Wall Street movement versus that of the Tea Party movement?  Or are my views on this more accurately captured by my choice between Fox News and MSNBC than by my embrace of Catholic social teaching?  At a minimum, does CST provide us with a set of questions by which to evaluate the two movements that are not otherwise being asked?

Tuesday, October 11, 2011

New ad, signed by Catholic leaders, opposing the mandate

Following up on my earlier post, in which I expressed my disagreement with some criticisms which had been directed at the interventions in the contraception-coverage debate of Fr. John Jenkins and Pres. John Garvey, I want to call MOJ readers' attention to a powerful new ad, which is appearing in The Hill, "Support access to health care?  Protect Conscience Rights."  This ad (Download Catholic orgs), which is signed by both Jenkins and Garvey, lodges a broader critique of the mandate (that is, it does not focus on the religious-employer-exemption issue) and includes this:

The HHS mandate puts many faith-based organizations and individuals in an untenable position. But it also harms society as a whole by undermining a long American tradition of respect for religious liberty and freedom of conscience. In a pluralistic society, our health care system should respect the religious and ethical convictions of all. We ask Congress, the Administration, and our fellow Americans to acknowledge this truth and work with us to reform the law accordingly.

In this ad, then, Fr. Jenkins and Pres. Garvey endorse clearly the proposition that the mandate burdens unjustifiably the consciences of individuals as well as religious-institution employers like the ones they lead.

UPDATE:  Matt Franck, at First Things, responds to my two posts (and to the new ad) here.

Pope Benedict XVI on Technology and Silence

Last week was the Feast of Saint Bruno, founder of the Carthusians, and the Pope visited the Carthusian Charterhouse at Serra San Bruno yesterday (h/t Rocco):

Technical progress, markedly in the area of transport and communications, has made human life more comfortable but also more keyed up, at times even frantic. Cities are almost always noisy, silence is rarely to be found in them because there is always a lingering background noise, in some areas even at night. In the recent decades, moreover, the development of the media has spread and extended a phenomenon that had already been outlined in the 1960s: virtuality that risks getting the upper hand over reality. Unbeknown to them, people are increasingly becoming immersed in a virtual dimension because of the audiovisual messages that accompany their life from morning to night.

The youngest, who were already born into this condition, seem to want to fill every empty moment with music and images, as for fear of feeling this very emptiness. This is a trend that has always existed, especially among the young and in the more developed urban contexts but today it has reached a level such as to give rise to talk about anthropological mutation. Some people are no longer capable of remaining for long periods in silence and solitude.

By the way, if you haven't seen the documentary film "Into Great Silence" about the Carthusians, do so.

Branch Rickey

For those of us interested in law, religion, and sports, Books & Culture has an interesting review of a new biography of Branch Rickey by Jimmy Breslin. Rickey, of course, was the president of the Brooklyn Dodgers who desegregated Major League Baseball in 1945 by signing Jackie Robinson, an act of courage that played a considerable role in launching the Civil Rights Era. Rickey was also, as it happens, a devout Christian (from a long line of pious Ohio Methodists) and a graduate of the University of Michigan Law School (my former teacher Evan Caminker--now the dean of Michigan Law--is the inaugural holder of a chair at Michigan endowed in Branch Rickey's honor).

Reflections on the Princeton "Open Hearts" Conference, one year later

At the Catholic Moral Theology blog, Charlie Camosy and Hilary Hammell are discussing and reflecting on the "Open Hearts, Open Minds" Princeton Abortion Conference, which was held a year ago (and in which Rob, Lisa, and I also participated).  Check it out.

"The Way Forward"

A report, to which our own Bob Hockett contributed, by the New America Foundation, called "The Way Forward:  Moving From the Post-Bubble, Post-Bust Economy to Renewed Growth and Competitiveness," gets notice and praise in this New York Times piece by Joe Nocera called "This Time, It Really Is Different."

I'm just a caveman, and I confess to wanting to "roll my eyes" (to quote Nocera) at those who "roll their eyes" at calls for deficit-reduction.  At the same time, like 99.9% of those who comment on Our Situation, I do not grasp all of its complexities.  Anyway, check out the report.

Monday, October 10, 2011

Protest by Occupation, but Does It Make Sense?

 

The “Occupy Wall Street” [OWS] movement has manifested itself across the country. The ability to assemble and to present grievances to the government is a part of American life and the political and legal fabric that form a part of this life. But the OWS is not quite that as the foci of the protests are directed toward private institutions that do have an enormous impact on public life. Nevertheless, the OWS movement is, within reason, protected by the peaceful assembly and freedom of expression clauses of the Constitution. Should the intent of the protesters incorporate actions designed to interfere with the lives and work of others—many of who are sympathetic—the protections guaranteed by the Constitution become thin to the point of non-application.

Now, Professor Thomas Beaudoin of the Fordham University Graduate School of Religions and Religious Education (GSRRE) has taken the OWS movement into another dimension by suggesting that it could be attempted and should be applied in the Catholic Church. [HERE]

But why does he make this claim? His wonder about the suitability of using OWS methods in parishes and other places where Catholics worship is triggered by his “passion for and grievances with [the] church.”

Taking stock of the Beaudoin suggestion, I suppose that those folks who wonder about what is going on in the American academy of higher education, including that which uses the moniker “Catholic”, could just as easily target these institutions with OWS methods in order to air their grievances against colleges and universities—but I digress.

It does appear that the professor has, if not grievances then, disagreements with the Church that are shared by some of his colleagues from the academy in that he is “a part of the Fordham conference ‘Learning to Listen: Voices of Sexual Diversity and the Catholic Church’.” As the GSRRE website states, he and a colleague are “part of a larger collaboration between Fordham, Union Theological Seminary, Yale Divinity School, and Fairfield University, titled ‘More Than a Monologue: Sexual Diversity and the Catholic Church ’” which I and Robby George have addressed at the Mirror of Justice on earlier occasions. Any disagreements or “grievances” which Beaudoin has regarding “sexual diversity and the Catholic Church” are apparently being voiced and heard by those interested in his views without the need of the OWS model being employed. I am certain that if he chose, he could air his “grievances” on other elements of the Church’s teachings somewhere other than houses of worship, perhaps even in his classroom.

But would it make sense to use the OWS model in parish churches? What goes on there? High level discussions addressing policy, doctrine, and dogma? No. What does go on in these venues is worship and the administration and receipt of the sacraments. Yet, Beaudoin wants to disrupt this in order to “name, protest and change what is intolerable about [the] church today.”

I wonder if he thought about those who are happy with the fact that they have a parish or other place where they can go and pray and receive the sacraments? It appears that he has not, for as he says he has a “vision of a different Catholic Church,” and he is not interested in the one that he wishes to disrupt. He wants a “Catholic version of the Arab Spring, to combat the long Catholic Winter.” But his fiery rhetoric fails to take stock of the fact that programs like “More Than a Monologue” are offering the “vision of a different Catholic Church” that he apparently desires. So, why bother the faithful laity and the presbyterate whose vision of the Catholic Church differs from his? He offers no response to this kind of straight-forward question.

As one progresses through the balance of manifesto, it is clear he is not satisfied with the Church’s teachings on a variety of fronts for he complains of the Church’s “structures, teachings, and practices [that] become steadily more incredible in contemporary society.”

Did it occur to him that the teachings of the Church are not designed to reflect what any society appears to want at any given time? Still, he imaginatively pits the “overwhelming majority (all non-ordained persons)” against “the small minority (the ordained).” I happen to be in the latter category, but I find the reality of being one of the ordained unlike the broad characterization offered by Professor Beaudoin does not pit me against those whom I am called by my particular vocation to serve. Having served on most weekends in local parishes for the last eighteen years since my ordination, I don’t find myself or the other clergy with whom I labor being pitted against the faithful. Rather, what I have found and continue to find in parishes across the country is that the People of God, the Body of Christ, whom I encounter, come together to pray, to celebrate and receive the sacraments, and ask God to help us reinforce our faith so that we may be worthy disciples of His Son. I do not see anyone from either segment of the Church as Professor Beaudoin describes it, “Looking at the world and the church in this moment” and declaring “that now may be some kind of privileged time for [OWS] action.” Beaudoin asks in oratorical fashion: “Will Catholics take it [i.e., OWS action] up?”

Why should they, for most of the faithful, be they clergy or laity, have what they seek in the Church as she has existed, as she continues to exist, and as she will exist: guiding and perfecting their way on the human destiny of union with God. The Church is not a political event; rather, it is a divine institution established to bring salvation to those who, in spite of our sinfulness, chose the standard of Christ.

Professor Beaudoin does not mention anything like this, so I don’t think his OWS-like plan makes much sense for anyone in the Church to pursue, be they of the laity or of the clergy.

RJA sj