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.

Thursday, April 21, 2011

"The Sacredness of Human Life"

Along the course of any little writing project, one may come across thought-provoking material that does not necessarily fit within the scope of the project itself.  That has certainly happened to me  lately.  My project has been in part to understand Sir James Fitzjames Stephen's ideas about criminal punishment.  Stephen was a towering figure in late-Victorian criminal law as well as the law of evidence, and a powerful political writer as well. 

Here he is on a subject near and dear to Catholic Social Thought -- inherent human dignity, or the "sacredness" of human life -- offering some interesting though surely controversial thoughts (from an article by the same title in "The Saturday Review," June 25, 1864):

Few phrases are oftener on our lips than "the sacredness of human life."  It is used on both sides, for instance, in the argument about capital punishments, and on almost all occasions it passes muster as the expression of an accredited maxim which it is impossible either to misunderstand or to deny to be true.  It is not, however, easy to assign to it a meaning which fulfills both these conditions by plainly asserting an indisputable truth . . . . [jump through for more]

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An interesting case about religion, state-run schools, and teachers

"Spain ends church control over religion teachers' married lives," The Guardian proclaims.  (This is probably not quite the way I'd frame the issue, but put that aside.)  The key point in the story, as I see it, is that these religion teachers were working in and for the state's schools.  Maybe the Guardian would write pretty much the same story, celebrating the Church's loss of "control", if the teacher had been working in a Catholic school, I don't know.  But, for purposes of religious freedom generally -- and the "ministerial exception" more specifically -- this distinction seems to matter a lot.

RLUIPA and Sovereign Immunity

The Supreme Court handed down a case yesterday on religion...sort of. The issue in Sossamon v. Texas was whether the the sovereign immunity of the states against private suits for money damages under the Religious Land Use and Institutionalized Persons Act (RLUIPA) is waived when they accept federal funding. Religious freedom groups, including the Becket Fund, the National Association of Evangelicals, Prison Fellowship, and Christian Legal Society were lined up for Sossamon (the prisoner-plaintiff) and against the states. In a 6-2 decision (Justice Kagan was recused), the Court held, per Justice Thomas, that the states do not consent to waive their sovereign immunity under RLUIPA. Two offhand thoughts:

  1. Eleventh Amendment state sovereign immunity is always a sore subject. Federalism skeptics think it's bizarre. Some conservatives aren't sure how to square the text and original meaning of the Eleventh Amendment with the cases. Our own Patrick Brennan is not a fan (see his "Against Sovereignty" over on the sidebar), but I'm sympathetic to some of Rick Hills's arguments in "The Eleventh Amendment as Curb on Bureaucratic Power," 53 Stanford Law Review 1225 (2001).
  2. With the departure of Justice Souter (who penned lengthy and elaborate dissents in Seminole Tribe v. Florida and Alden v. Maine), perhaps the opposition to state sovereign immunity is losing some steam. Justice Sotomayor's dissent is a narrow argument that the phrase "appropriate relief" in RLUIPA should be interpreted to include suits for money damages, but she does not undertake a root-and-branch criticism of state sovereign immunity. It's noteworthy that Justice Ginsburg--who dissented in Seminole Tribe, Alden, and College Savings Bank v. Florida Prepaid--was in the majority yesterday, but she did not write separately to indicate why state sovereign immunity under RLUIPA should be viewed differently than in the prior cases.

Bradley on Lithwick's deeply misleading and misguided latest

Dahlia Lithwick, who writes about the Supreme Court and law, can turn a phrase, but her analysis sometimes descends into over-partisan fog.  As my colleague, Gerry Bradley, shows (here), this is definitely true of her latest, at Slate, on the abortion-related legislation that some states are considering.

Wednesday, April 20, 2011

Climate Change at the Court

The Supreme Court heard oral argument yesterday in one of the most anticipated cases of the term, American Electric Power Co., Inc. v. Connecticut, which involves a federal common law public nuisance claim by several states, New York City, and some land trust organizations against five major utility companies. The plaintiffs are seeking injunctive relief against the utilities for the emission of greenhouse gases that the plaintiffs allege have contributed to climate change.

The case poses a set of fascinating and complex issues, but there are at least two especially interesting arguments for MOJ readers to ponder.

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Maybe we have the government we deserve . . .

Solve our fiscal mess!  (Just don't cut my benefits or raise my taxes.)

"What Evangelicals Owe Catholics"

From Joe Carter, at First Things. 

Dear Joe . . . you're welcome.  =-) 

Building Virtue

Raymond Hain, in the context of extolling the virtues of a new book of essays by Philip Bess, lays out several arguments for the "new urbanism."  This caught my eye:

[This is the most] striking difference between the various communities in the walkable neighborhood and the various communities in the suburbs: the communities of the neighborhood typically overlap, whereas the communities of the suburb do not. Though suburbanites still live, work, play, worship, and shop, there will be very few people, if any, with whom they will have more than one activity in common. We live with people other than those with whom we work, and we pray with yet a third, different community.

The most important feature of contemporary suburban sprawl, then, has little to do with aesthetics and everything to do with its fragmenting character. Suburbia makes possible and promotes a division between the various individual activities that make up our lives. But while our activities seem fragmented, we must find a way to integrate the various activities in which we engage so that our lives are a harmonious and unified whole. The task of integration, of recognizing the various human goods and pursuing them as a single human agent in search of happiness, is the central task of human life. And it is in terms of an integrated pursuit of the final end that each of the moral and intellectual virtues finds its place.

I'm tempted, as a child of the suburbs who has spent his entire adult life living in cities, to validate my own choices and shout "hurrah!"  While the walkable community does offer some advantages over the suburb in this regard, though, I think it's easy to overstate the difference.  Integration is difficult in the modern subdivision, to be sure.  The task of integration can also be extremely difficult in walkable communities, especially to the extent that urban life can be marked by lower levels of trust and a greater sense of anonymity.  And it seems like building a walkable community that also has sufficient employment opportunities to keep everyone working within that community is a very difficult trick to pull off.  Even if we get out of our fenced-in back yards and onto the front porch, that's a long way from working and worshipping together. 

Hain is not very optimistic about the prospects for another reason, as he concludes:

It looks like all this [integration] is only possible if enough people agree on the end, the general shape of human happiness as a whole, and this agreement on what matters most shapes and makes possible all the other integrative activities of our community. But what if we no longer agree on this (and, frankly, this seems exactly the situation we face today)? Bess reminds us that suburbia represents a turning away from public life towards private life. Front porches have become back decks, and public squares have disappeared. Suppose we were to rebuild those public squares, and all of us spent our evenings on our front porches. We might discover, to our dismay, that we had almost nothing to talk about.

In any event, it's well worth reading.

"God's Partisans are Back"

Here is a short piece, in The Chronicle, by my friend and colleague Dan Philpott (Pol. Sci., Notre Dame) and others, about the failure of the "secularization" thesis to explain what's happening in the world around us.

But if American foreign-policy makers want to promote democracy and stability, they must come to realize that secularism is a poor analytical tool. The great surprise of the past generation has been the resurgence of religion's influence. Despite a powerful array of secularizing regimes, ideologies, and social trends, religion has not only outlasted its most ferocious 20th-century rivals, but in many cases, it also appears poised to supplant them.

Among other things, the piece suggests that religious freedom is a "critical [factor] when assessing whether religion is more likely, on balance, to yield peace or terrorism, democracy or authoritarianism, reconciliation or civil war."

The piece is based on the authors' excellent new book, God's Century.

Christianity and Human Rights, An Introduction

Christianity and Human Rights: An Introduction [Book]

Here's a concise write-up of this book, edited by John Witte and Frank Alexander (wonderful scholars in their own right, as well as innovators and impresarios when it comes to all kinds of exceptional writing in law and religion).  With contributions by, among others, Robert Bellah, Nicholas Wolterstorff, Kent Greenawalt, and Rick Garnett.