Both Stephen White and Matthew Franck have posts up at First Things in which they lodge objections to certain features of John Garvey's recent opinion piece in The Washington Post and of the recent letter that Notre Dame's President, and my colleague, Fr. John Jenkins, sent to HHS Secretary Kathleen Sebelius, urging her to improve the dramatically inadequate religious-employer exemption to the new health-care law's contraception-coverage mandate. I say it with great respect, but these posts strike me as unfairly critical and as insufficiently appreciative of the specific context in which Fr. Jenkins's letter was submitted (i.e., commentary to an administrative agency's proposed interim rule) and of his letter's specific goal.
First, it seems wrong to fault Fr. Jenkins for (entirely sensibly) attempting to move Sec. Sebelius to the right decision by saying nice things about her connections to Notre Dame and its mission and by reminding her that Pres. Obama did call publicly (even if we might reasonably suspect that he didn't really mean it) at Notre Dame for a more religious-freedom-friendly approach than the one he and his Administration seem (unfortunately) to be taking now (on several fronts).
Fr. Jenkins, in his letter, is trying to effect a better outcome than the one proposed in the relevant interim rule. He is not writing as a scholar (though he is one) or making a general intervention as a public intellectual. He is the representative of a large institution that would be seriously and negatively affected by the proposed interim rule. It makes little sense, in my view, to fault him for not using this particular occasion to denounce the immorality of the mandate itself.
Second, Mr. White seems to impute to Fr. Jenkins the claim or view that there is a moral equivalence between dropping employee health coverage and paying for abortion-causing contraceptives and sterilization. I don't think Fr. Jenkins said that, even if he did say that he thinks it would violate Catholic Social Teaching to fail to provide employees and students with insurance.
Next, Matt Franck, in his post, finds much to praise in Fr. Jenkins' letter, and correctly reminds us all that abortion is wrong, not "wrong for Catholics." He writes:
Father Jenkins and President Garvey admirably defend the institutional conscience rights of their universities, and that is rightly their foremost concern. But by not going on the offensive against the basic immorality of the Obama administration’s rule, they backed into a purely defensive stance. The Obama administration may not budge from its rule as proposed. But one danger is that it will accept a “Jenkins-Garvey” solution, expanding the “religious employer” exemption in the HHS rule and then trumpeting the administration’s “reasonableness.”
Franck and I agree entirely about the basic immorality of the administration's rule. (I am sure that Fr. Jenkins also joins us in agreement.) But, with all due respect, I think it is entirely reasonable (and not cause for criticism) for Fr. Jenkins and Pres. Garvey to proceed on the basis of the (sound) assumptions that the mandate itself is not going to be dislodged unless the next election dislodges it and that this Administration is not open, at all -- it should be, but it is not -- to a conscience-exemption to the mandate for those (in Franck's apt words) "marooned outside the ambit of the rule’s exemption, as insurers, employers, and employees." Yes, given the givens, Fr. Jenkins and Pres. Garvey are in a "defensive stance," but sometimes events and facts-on-the-ground make such a stance the only feasible one.
As I see it, response by the folks at the Notre Dame Center for Ethics and Culture to Fr. Jennkins's letter is a better one:
We commend the President for speaking out for Catholic institutions across the country who refuse to pit the Church's moral teaching against the Church's social teaching. His is a voice which needs to be heard in this debate, and we hope other university presidents and directors of Catholic hospitals will follow his lead in proclaiming the truth.
To be sure, I agree entirely with Matt Franck that the Hyde Amendment was and remains a great success, and will be very happy if the Administration is moved by the powerful arguments set out in the response to the proposed rule of the Witherspoon Institute’s Task Force on Conscience Protection. I see no need, though, to focus on or complain about what else could have been in Fr. Jenkins' and Pres. Garvey's interventions when (i) there is so much in them that is good and (ii) they reflect (what seem to to me to be) sound conclusions about strategy-and-tactics.
In her report on the Hosanna-Tabor oral arguments, Dahlia Lithwick says, "[t]he Supreme Court asks which is more important: preventing discrimination or protecting religion?" But, this is not the question. That is, this case is not about the "importance" of preventing discrimination." That a goal is "important" does not mean that the government has the power to pursue it by any and all means. As I see it, the claim in H-T is not that the government's interest in preventing that discrimination that it has the power to prevent is not important; it is, instead, that -- given our commitment to religious freedom and its church-state-separation dimension -- there are some contexts in which the government's otherwise available power to prevent discrimination is blocked.
For all current and aspiring law faculty who are attending the upcoming hiring conference, here is the information about this year's reception sponsored by the Religiously Affiliated Law Schools. I am not going to the conference this year, but have always enjoyed this reception in the past.
My friend, Fr. Thomas Williams, has a brand-new book out on Catholic Social Thought, called "The World as it Could Be." Here's one blurb:
Providing insight and into the world's most pressing concerns--those of human rights, human dignity, and world peace--bestselling author and priest Thomas D. Williams adds his reassuring voice to the panoply of issues that call to question the meaning of faith. One of the most trusted and dynamic voices from the Catholic community and the official Vatican analyst for CBS News, Father Williams helps parishioners step back from today's controversies and understand Catholic teachings in a deeper way. Addressing the most heated debates ripped from national headlines and fervently discussed between Catholics--from abortion and capital punishment to the economy--Father Williams draws upon his years of teaching in this detailed yet accessible analysis of the moral dilemmas and political challenges that Catholics face every day. Examining these moral conflicts, and the often opposing forces of individual rights versus those of the community, Father Williams speaks to orthodox Catholics and non-Catholic observers alike in this examination of the Catholic faith, it's influence around the world, and what it teaches millions of followers about human rights and a better world.
My colleague, Mark Movsesian, is at a conference in Prague organized by Vaclav Havel, and posts some thoughts about a question that he has fielded three times already. For what it's worth, my memory of my own experiences on the legal academic market is that this question was asked of me a few times. I don't think there is anything especially objectionable about the question, and at the time I tried to answer it forthrightly, but I have noticed that it is not generally asked of people with other academic interests that intersect with law.
Here is an interesting review by John Gray of Stephen Pinker's much-noticed new book, The Better Angels of Our Nature: The Decline of Violence in History and Its Causes. I have not read Pinker's book, but particularly interesting to me was the claim by Gray that Pinker endorses features of the American incapacitative approach to incarceration because it sweeps up large numbers of the violent and thus contributes to the "civilizing" march away from human violence. A bit from the conclusion of Gray's review:
The vast growth of the American penal state, reaching a size not achieved in any other country, does not immediately present itself as an advance in civilisation. A large part of the rise in the prison population has to do with America’s repressive policies on drugs, which Pinker endorses when he observes: “A regime that trawls for drug users or other petty delinquents will net a certain number of violent people as a by-catch, further thinning the ranks of the violent people who remain on the streets.” While it may be counter-productive in regard to its stated goal of controlling drugs use, it seems America’s prohibitionist regime offers a useful means of banging up troublesome people. The possibility that mass incarceration of young males may be in some way linked with family breakdown is not considered. Highly uneven access to education, disappearing low-skill jobs, cuts in welfare and greatly increased economic inequality are also disregarded, even though these factors go a long way in explaining why there are so many poor blacks and so few affluent whites in prison in America today.
“There is a striking kinship between our movement and Margaret Sanger’s early efforts. She, like we, saw the horrifying conditions of ghetto life. Like we, she knew that all of society is poisoned by cancerous slums. Like we, she was a direct actionist – a nonviolent resistor. She was willing to accept scorn and abuse until the truth she saw was revealed to the millions. At the turn of the century she went into the slums and set up a birth control clinic, and for this deed she went to jail because she was violating an unjust law. Yet the years have justified her actions. She launched a movement which is obeying a higher law to preserve human life under humane conditions. Margaret Sanger had to commit what was then called a crime in order to enrich humanity, and today we honor her courage and vision; for without them there would have been no beginning. Our sure beginning in the struggle for equality by nonviolent direct action may not have been so resolute without the tradition established by Margaret Sanger and people like her. Negroes have no mere academic nor ordinary interest in family planning. They have a special and urgent concern.” –
A speech, read by Mrs. Martin Luther King for Dr. Martin Luther King a the 50th anniversary banquet of Planned Parenthood-World Population and Planned Parenthood of Metropolitan Washington, May 5, 1966, Shoreham Hotel, Washington, D.C.
Over at Prawfsblawg, MOJ-friend Paul Horwitz has a must-read post about the recent Hosanna-Tabor arguments and, more particularly, responding to Prof. Leslie Griffin's framing of the issue. Among other things, Paul explains -- with characteristic patience -- why the "why should churches get to disobey the law?" objection to the ministerial exception misses a pretty big point.
I think Steve Jobs was brilliant, creative, innovative, etc. I'm grateful for the ways he enriched our everyday lives. And yet. I have a hard time articulating my discomfort with the global outpouring of grief without sounding downright curmudgeonly (or worse), but there has been something gnawing at me since I saw the various slide shows of the shrines springing up in his memory at Apple stores worldwide. His death -- and our reaction to his death -- says as much about us as it does about him. And I'm not sure that it's all good. What does the death of Steve jobs say about our reliance -- not just in a practical sense, but in a spiritual sense -- on technology? Andy Crouch has written an essay that says it better than I every could. An excerpt:
Steve Jobs was extraordinary in countless ways—as a designer, an innovator, a (demanding and occasionally ruthless) leader. But his most singular quality was his ability to articulate a perfectly secular form of hope. Nothing exemplifies that ability more than Apple's early logo, which slapped a rainbow on the very archetype of human fallenness and failure—the bitten fruit—and turned it into a sign of promise and progress.
That bitten apple was just one of Steve Jobs's many touches of genius, capturing the promise of technology in a single glance. The philosopher Albert Borgmann has observed that technology promises to relieve us of the burden of being merely human, of being finite creatures in a harsh and unyielding world. The biblical story of the Fall pronounced a curse upon human work—"cursed is the ground for thy sake; in sorrow shalt thou eat of it all the days of thy life." All technology implicitly promises to reverse the curse, easing the burden of creaturely existence. And technology is most celebrated when it is most invisible—when the machinery is completely hidden, combining godlike effortlessness with blissful ignorance about the mechanisms that deliver our disburdened lives.
John Allen has a thoughtful column today about religious freedom as the dominant issue for the future of Catholicism. He identifies three historical movements which have thrust religious liberty into the foreground: (1) the secularization of Western nations, and the concomitant sense in which Western states will become increasingly hostile to Catholicism and Christianity generally; (2) the reality that increasingly large numbers of Catholics come from the southern hemisphere, where they face dire threats to life and limb (and I take the point about the ministerial exemption that Allen makes); and (3) the shift from Judaism to Islam as Catholicism's primary interlocutor. Here's a bit from Allen's discussion of the last shift:
As Islam becomes the paradigmatic relationship, however, Catholic psychology has begun to shift. Today, Catholics are less inclined to assume that the problem lies on their side of any inter-faith dialogue; they've become more inclined to point to distortions and excesses on the other side as well. That's a prescription for a more balanced and substantive, but also more combustible, form of dialogue.
By far, the most common area where one sees this new Catholic willingness to push back is religious freedom, and not just in the relationship with Islam. It also surfaces, for instance, in the dialogue with Hinduism, given the alarming spread of Hindu nationalism and radicalism in some regions of India. The worry is that violent anti-Christian pogroms that broke out in the state of Orissa in 2008 may be a preview of coming attractions.
