Mirror of Justice

Saturday, June 11, 2011

Nice Items in Today's NY Times

Three of them: (1) a story about Bologna, the Lucullan princess of Italy and my childhood home away from home (Santa Maria Maggiore and Santo Stefano are ancient and magnificent); (2) a review of a wonderful looking new translation by John Ashbery of Rimbaud's Illuminations; and (3) a review of a book about a really neat volume by Tacitus, Germania, re-discovered sometime in the 15th century. Tacitus is the author of the insufficiently well-known Annales, as great a declinist history as has ever been written (post-Augustan Rome was grim).

From Book I of the Annales: "The histories of Tiberius, Caius [that's Caligula!], Claudius, and Nero, while they were in power, were falsified through terror, and after their death were written under the irritation of a recent hatred. Hence my purpose is to relate a few facts about Augustus -- more particularly his last acts, then the reign of Tiberius, and all which follows, without either bitterness or partiality, from any motives to which I am far removed."

Friday, June 10, 2011

"Religious Freedom and the Regulatory State"

By Rick Garnett

At First Things, Joseph Knippenberg (reasonably) reacts uneasily to a recent NLRB decision requiring a Catholic university to permit a labor union to attempt to organize its adjunct faculty. His post includes links to the relevant decisions.

Breen on Justice Stevens, the Establishment Clause, and abortion

By Rick Garnett

Our own John Breen just delivered, here at Notre Dame, at the annual conference of University Faculty for Life, an (I thought) devastating critique of the argument -- often associated with Justice Stevens -- that regulations of abortion violate the Establishment Clause because they depend on (what can only be) a "religious" premise. In due course, I hope John will post the paper here at MOJ!

Individual Religious Expression v. Organized Religious Worship

By Marc DeGirolami

This is an interesting case from a few days ago, Bronx Household of Faith v. Bd. of Educ., in which a three judge panel of the Second Circuit upheld a local rule which prohibited outside groups from using public school facilities after hours for "religious worship services." Judge Leval wrote the main opinion, joined in concurrence by Judge Calabresi, and with Judge Walker dissenting. Two points in particular seemed interesting to me:

1. You might be wondering how the court managed to get around Good News Club v. Milford Central School. The New York City Department of Education makes its public school classrooms available as limited public forums to a variety of groups. Bronx Household of Faith, a Christian Church, applied to take advantage of one such space for its Sunday morning church service, stating that its services were to include "singing of Christian hymns and songs, prayer, fellowship with other church members and Biblical preaching and teaching, communion, [and] sharing of testimonies," followed by a "fellowship meal," during which attendees "talk to one another, [and] share one another's joys and sorrows so as to be a mutual help and comfort to each other." Part of the procedural history of the case precedes Good News Club (also out of the Second Circuit), but as folks here at MOJ know well, Good News Club held that a public school district which operated as a limited public forum could not exclude a Christian group which sought space in order to teach young children (aged 6-12) about Christian morality (through the use of songs, prayer, story telling, and in other ways), because doing so was prohibited viewpoint discrimination (see also Lamb's Chapel and Rosenberger). This case has had a long and involved procedural history during which the Board of Ed.'s rule was gradually modified. But the upshot in this opinion is that Judge Leval held that "[t]he prohibition against using school facilities for the conduct of religious worship services bars a type of activity. It does not discriminate against any point of view . . . . While the conduct of religious services undoubtedly includes expressions of a religious point of view, it is not the expression of that point of view that is prohibited by the rule. Prayer, religious instruction, expression of devotion to God, and the singing of hymns, whether done by a person or a group, do not constitute the conduct of worship services. Those activities are not excluded."

I'm having some difficulty with this interesting argument but probably I just am not understanding it. It seems to be that the disorganized activity of "worship" would not itself be something which the district could prohibit consistent with Good News Club, but the "event" or "collective activity" of worship may be excluded. Judge Leval: "What is prohibited by this clause is solely the conduct of a particular type of event: a collective activity characteristically done according to an order prescribed by and under the auspices of an organized religion, typically but not necessarily conducted by an ordained official of the religion." Granting use of the forum to an "organized religion," in the majority opinion's view, "has the effect of placing centrally, and perhaps even of establishing, the religion in the school." A bit of Protestant theology from the Second Circuit?

2. The other interesting feature is the use to which Judge Leval put the Establishment Clause. The district's exclusion of religious worship services was recognized as reasonable in light of its wish to avoid violating the Establishment Clause. Again, from Judge Leval's opinion: "In order to determine whether the content restriction for this purpose is reasonable and thus permissible, we need not decide whether use of the school for worship services would in fact violate the Establishment Clause, a question as to which reasonable arguments could be made either way, and on which no determinative ruling exists. It is sufficient if the Board has a strong basis for concern that permitting use of a public school for the conduct of religious worship services would violate the Establishment Clause." And again, Judge Leval emphasized that worship services are a "core event in organized religion" and because the classroom "at least for a time, becomes the church," not only was it distinguishable from the Good News Club situation, but it also might well violate the EC for the district to permit such a use. Two other points made by the Judge: establishment concerns (filtered through the lens of a "perception of endorsement") are reasonable because (1) the availability to Christians on Sunday of the public school space is an unintentional bias in favor of Christian religions; and (2) the religious services of Bronx Household are not open on equal terms to everyone, since the Church holds that one must be baptized and not excommunicated in order to participate.

Judge Walker's dissent is also well worth reading for those who are interested.

Thursday, June 9, 2011

Mr. Cain, please do the right thing, and the American thing

By Robert George

There is a lot to like about Republican presidential aspirant Herman Cain, the former CEO of Godfather's Pizza. He is genuinely pro-life and pro-marriage; he has personally triumphed over poverty and racism; he has extensive experience as an entrepreneur and businessman, and is credited with restoring a failing company to profitability. It is being reported, however, that in comments made to Glenn Beck, Mr. Cain said that though he would permit Muslims to serve in his administration, he would demand of them a degree of "loyalty proof" that he would not demand of Catholics, Mormons, and members of other faiths. If his words are being reported accurately, what he said is wrong, foolish, and unacceptable. It is disrespectful of Muslims, the vast majority of whom in our country are, as Cain himself seems to acknowledge, loyal, honorable citizens; and it is incompatible with a sound understanding of religious freedom (and with the spirit, if not the letter, of the Constitution's no-religious-tests clause). It puts Cain in a camp with Martha Coakley, the hapless Massachusetts Democrat who, when running against Scott Brown for the United States Senate, infamously said that devout Catholics should not work in emergency rooms inasmuch as they are unwilling to be involved in providing contraceptives and abortions. That is a place Mr. Cain surely does not want to be. Now is his chance to show that he is the kind of man who is willing to admit a mistake and make things right. I hope that he will reflect on what he said and, at the first possible opportunity, repudiate the idea that Muslim citizens are to be held to standards of "loyalty proof" higher than those to which other citizens are held. He should make clear that, if elected President, he will hold possible appointees to his administration to exactly the same standards, irrespective of their religious faith. That would be the right thing to do. It would, moreover, be the American thing to do.

Wednesday, June 8, 2011

Is this billboard a legitimate form of pro-life advocacy?

By Rob Vischer

A court has ordered the removal of a billboard put up by a man proclaiming, "This would have been a picture of my two-month old baby if the mother had decided not to kill our child!" Given the man's photo, it was not difficult for town residents to figure out the woman he was talking about. I'm not a constitutional law expert (though Eugene Volokh is, and he comments on the case here), but just as I'm leery of publicly shaming groups and individuals who contribute money to oppose same-sex marriage, for example, I'm leery of public shaming in this context as well.

Berg on school prayer decisions

By Rob Vischer

Our own Tom Berg has posted a new paper, "The Story of the School Prayer Decisions: Civil Religion Under Assault." The abstract:

This chapter, from Foundation Press's forthcoming "First Amendment Stories" volume, traces the background, resolution, and impact of the Supreme Court's first school prayer decisions, Engel v. Vitale and Abington School Dist. v. Schempp. Among other things, the chapter traces the relation of the Regents' Prayer, struck down in Engel, to the nondenominational theistic civil religion of the 1950s, and the relation of constitutional attacks on the prayer to various criticisms of that civil religion from both religious and nonreligious quarters.

Tuesday, June 7, 2011

The Intersection of Sports and Religious Liberty

By Marc DeGirolami

It isn't often that one sees these two fields together, but this story is about FIFA's ban of the niqab (the head-scarf...presumably the full length hijab is a no-go too) for female soccer players. Apparently the ban went into effect in 2007, and Iran's national team was recently disqualified in an Olympic qualifying match for their refusal to comply with it. The story is light on details about the grounds for the original ban, but it seems that there were safety concerns specifically related to the neck (the ban also prohibits "neck warmers"). I can understand how it might well present a safety concern for soccer players on either side to be dealing with a head scarf during play (it seems like a choking hazard and probably there are other dangers to the neck), but if anyone knows something more about the basis of the ban, please comment.

Iran's president, Mahmoud Ahmadinejad, is quoted as calling the FIFA authorities "dictators" for their refusal to accommodate Iran's players.

Monday, June 6, 2011

Greenhouse/Siegel article on Roe

By Richard Myers

Here is a link to a very interesting article by Linda Greenhouse and Reva Siegel. The article is entitled "Before (and After) Roe v. Wade: New Questions about Backlash." Here is the first paragraph of the abstract--

"Today, many Americans blame polarizing conflict over abortion on the Supreme Court. If only the Court had stayed its hand or decided Roe v. Wade on narrower grounds, they argue, the nation would have reached a political settlement and avoided backlash. We question this court-centered backlash narrative. Where others have deplored the abortion conflict as resulting from courts “shutting down” politics, we approach the abortion conflict as an expression of politics—a conflict in which the Supreme Court was not the only or even the most important actor."

It is important to focus on the Court's role in the conflict over abortion because the Court's decisions have had a profound impact on the nature of the struggle over the issue for nearly 40 years. But I think it is a mistake to overstate the Court's role, and to that extent I agree with Greenhouse and Siegel that there is a danger in being too court-centered. It is not uncommon to hear people place the entire blame for the current situation on Justice Blackmun. And while Justices Blackmun and Brennan played a pivotal role, it is important to focus on the broader culture. That is why it is so important that certain cultural trends on this issue (e.g., the increasing pro-life sentiment among young people) are encouraging.

Richard M.

Sunday, June 5, 2011

Catholic Identity and the NLRB

By Robert John Araujo, SJ

Last week, the Chicago Regional Director of the NLRB issued a decision in a case between Saint Xavier University of Chicago and some of its contract adjunct faculty who wish to elect a representative and organize a bargaining unit. The University relied on the precedents of University of Great Falls and Carroll College (earlier NLRB decisions) and the 1979 Supreme Court decision in NLRB v. Catholic Bishop of Chicago in arguing its exemption from the NLRB’s jurisdiction. The University has further argued that it is a religiously operated institution and thereby exempt from the National Labor Relations Act (the Act). The Regional Director’s May 26, 2011 decision is [HERE].

The Regional Director held that the University is not a church-operated institution and is therefore subject to the Act, so its contract employees may proceed with their election rights in accordance with the Act. In his findings, the Regional Director acknowledged the University’s long-time association with the Sisters of Mercy and the Archdiocese of Chicago. Moreover, he mentioned in his decision that the University is recognized as a Catholic institution by the Archdiocese. He also recognized that it is corporately linked with the Council for Mercy Higher Education (the CMHE) which holds responsibilities and reserved powers to govern the University; in addition, he found that the CMHE links the University to the Church. The bylaws of the University, which has several Mercy sisters as members of the Board of Trustees, acknowledge that the CMHE retains several significant powers including the authority to preserve the religious mission of the school. However, the Regional Director also identified some of the substantive powers of the entire Board of Trustees that could extend beyond those of the religious women on the board. The Regional Director also pointed out that the juridical documents of the University state that to the “extent possible”, a majority of the Board “should be Catholics committed to the Church.” But he noted that there was no other qualification or disqualification taking stock of belief, creed, race, gender, or residence to be a trustee.

While the Regional Director acknowledged various programs that enhance the Catholic identity and Mercy character of the school, he found that the University was “guided by” but not “governed by” Pope John Paul II’s Apostolic Constitution Ex Corde Ecclesiae. Still, the Regional Director acknowledged other substantive areas where the University has solidified its Catholic heritage.

It appears that the University’s requirements addressing faculty and student composition were important to the Regional Director in reaching his decision about the University’s legal identity. He found that the University does not examine or consider the religious beliefs of its students, faculty, or trustees. He fortified this finding with the passage from the University’s articles which state: “No religious, racial, color or ethnic test or particular religious profession shall ever be held as a requisite for admission to said colleges or university or to any department belonging thereto … or for election to any professorship, or any place of honor or emolument in … any of its departments or institutions of learning.” Furthermore, he found that there is no requirement imposed by the University for its faculty—including adjuncts—to “espouse or emphasize Catholicism in their teachings or imbue students with the tenets of the Catholic faith.” Although the University requires that all students must take two courses in religious studies, the courses can be about any religion—not just Catholicism.

The Regional Director also placed some emphasis on the testimony of two adjunct faculty members who stated that nothing in their offers of employment or contracts mention anything about the Mercy Sisters, Catholicism, God, or religion. One of these adjunct faculty stated that he did mention his own religious practice (Greek Orthodox) to his hiring department but was told by the department chair that his religion, religious beliefs, or religious orientation “did not matter.” The department head apparently stated to this adjunct professor that continued employment by adjunct faculty is concerned with student evaluations but not with religion.

A crucial question for the Regional Director was whether the application of the Act would constitute “a significant risk of constitutional infringement.” In assessing and deciding upon this issue, the fact that there may be some nexus with a religious body is not crucial in assessing whether there is or is not an infringement. What is crucial is whether the University’s mission is religious—are faculty required to conform to and teach Church teachings where relevant; are faculty and students required to engage in worship, especially of the faith with which the institution claims affiliation. The Regional Director further stated that he was applying the “substantial religious character” test based upon applicable legal precedents.

In doing so, he noted that the CMHE’s role in the operation of the University is not of the sort that would generate “a significant risk of constitutional infringement.” Moreover, he cited several factors to substantiate his conclusion. The first is that the University’s faculty are free to function without any religious requirements or restraints. Second, while the University may be “guided by” Ex Corde Ecclesiae, the academic freedom of the faculty is such that they are “unfettered with regard to imbuing or inculcating students and curriculum with Church doctrine or religion.” Third, it appears that the University would not discipline or fire any faculty member if he or she did not “hold to Catholic values.” In this context, it appears that religion and religious values play no role in faculty hiring, retention, or promotion. Finally, although the University’s mission statement refers to the Church and the Mercy heritage, it is evident that the core mission and objective of the University is “to educate men and women irrespective of their religious beliefs.”

Let me offer some preliminary conclusions about the Regional Director’s decision. First of all, he appears to place the impact of his decision back into the court of the CMHE by noting their ability to change the articles of incorporation, the bylaws, and the mission statement. In making such changes, they could amend the vital hiring and firing procedures in the future and presently alter the mission statement. Second, it will be important to monitor any further review of the Regional Director’s decision which the University may pursue. Third, I am certain that many institutions of higher learning which claim the moniker “Catholic” will assiduously study this decision and weigh its impact on their own institutions.

The future of Catholic higher education is in our hands. But then, it always was.

RJA sj