Our own Rob Vischer gets a great shout-out from National Jurist as one of 23 law professors "you should take before you die." Heck, no need to wait that long. . . .
Saturday, March 19, 2011
Congrats to Rob Vischer!
Friday, March 18, 2011
Lautsi v. Italy: The Decision
I've had a chance to read the Court's decision as well as the three concurring opinions and the dissent. I'm still processing it, but here are some highlights.
The breakdown of votes was 15-2 on the central issue of whether Italy had violated Article 2 of Protocol #1 (the State's obligation, in the discharge of its educational function, to "respect the right of parents to ensure such education . . . in conformity with their own religious and philosophical convictions") or Article 9 of the Convention ("the right to freedom of thought, conscience and religion"). Of the three concurrences (representing four judges), one (Judge Bonello's) would have gone considerably further than the Court did, one (garnering two votes) signed on to the Court's decision "not without some hesitation," and the last one (by Judge Power) seemed largely to agree with the scope of the majority's decision.
The Court spent considerable time examining (1) the March 2005 judgment of the Veneto Administrative Court as to the symbolic meaning of the crucifix; (2) the April 2006 judgment of the Italian Consiglio di Stato (the highest administrative court) of April 2006 as to the same; (3) the view of the Corte di Cassazione (Italy's highest court) on related issues of secularism; (4) the history of Italy's domestic law and practice with respect to the crucifix in public schools; and (5) the law and practice of various member states with respect to the issue of religious symbols in public schools. This was all crucial material because it set the stage for and really grounded the Court's eventual conclusions. The Court adduced from this survey the reality that there is simply nothing approaching a European consensus involving the state's display of religious symbols. Courts even within Italy are divided on these issues. Even more than this, the Court's extensive examination revealed just how plural and conflicting the policies and approaches of the various member states truly are, perhaps the most interesting point of which is that "[i]n the great majority of member States . . . the question of the presence of religious symbols in State schools is not governed by any specific regulations."
After reviewing the decision below and the arguments of the parties (including Joe Weiler's position...in which the Court specifically mentioned that line about "Americanisation"...like a shark to chum), the meat of the decision begins at par. 57. To my mind, what is most striking about the decision is that it really analyzes the issues through the prism of public education, and what a public education ought to mean. Article 2 is foregrounded.
The Court says that while the State must help to maintain "public order, religious harmony and tolerance in a democratic society," (60), that obligation does not mean that "parents can require the State to provide a particular form of teaching." The setting of curriculum, says the Court, is a matter for the State, and so long as "information or knowledge" is being "conveyed in an objective, critical, and pluralistic manner, enabling students to develop a critical mind" and without "indoctrination," the parents of students cannot complain. (62) For me, these claims brought to mind the debates in the Mozert case, but that is a subject for another time.
How does the crucifix fit in here? The Court says that "the decision whether crucifixes should be present" in public schools "forms part of the functions assumed by the respondent State in relation to education and teaching" and that it is therefore within the compass of Article 2 as well.
What is the meaning of the crucifix? "[T]he crucifx is above all a religious symbol . . . . The question whether the crucifix is charged with any other meaning beyond its religious symbolism is not decisive[.]" (66) The Court therefore did not decide for itself whether the crucifix partook of an identitarian or cultural meaning independent of and in addition to its religious meaning. But it accepted that the State (here Italy) believed that the crucifix was a symbol with multiple meanings, some of which were foundational as to its civic traditions, and...and here is the key..."the decision whether or not to perpetuate a tradition falls in principle within the margin of appreciation of the respondent State." (68)
The concept of the margin of appreciation, interestingly enough, in some ways is similar to the doctrine of subsidiarity (see Prof. Paolo Carozza's excellent work on this issue) and the concept was absolutely crucial to the Court's judgment. Because of the well-documented lack of consensus among and even within the European states, and because the crucifix was a "passive symbol" (compare the Folgero and Zengin cases out of Norway and Turkey, respectively -- par. 71) whose purpose was not "indoctrination," the decision whether to retain the crucifix fell within Italy's margin of appreciation. (70-72).
More thoughts after further rumination.
Lautsi Surprise
This early report indicates that the Grand Chamber of the European Court of Human Rights reversed the earlier decision on the permissibility of the crucifix in Italian public schools. They have been deemed permissible. More anon, after I've read the decision (I'd be grateful for comments from readers with knowledge of or links to the decision).
UPDATE: The decision is here.
Thursday, March 17, 2011
Introduction to Retributivism: Essays on Theory and Policy
For those interested in retributive justice, Mark White has posted the introduction to a volume dedicated to the subject. The volume itself [self-promotion alert...check out the cool new cover!!] is here.
Conference: "The Theology of Work and the Dignity of Workers"
Rob mentioned this a few weeks ago, but if you are in the New York City area tomorrow or Saturday, I hope you will consider coming to a conference organized by Professor David Gregory here at St. John's Law School, The Theology of Work and the Dignity of Workers. Dave has put together many wonderful, interesting, and eclectic panels and speakers. Hope to see you here.
Obsession? Whose?
So there is a debate about whether Christians are obsessed with homosexuality and abortion. Well, some people seem to be obsessed with homosexuality and abortion, but is it Christians? I don't think so. For heaven's sake, just tune in to network TV for a few hours, or watch the Academy Awards broadcast, or visit a university, or talk to people in Hollywood or San Francisco or Hyde Park or on the Upper West Side. Is there a cause more fashionable in the elite sector of the culture than "gay rights"? Many universities have a half dozen or more LGBTQ,etc. organizations and support groups (not to mention official university offices to provide support and even academic departments); few have support groups for morally conservative students wishing to live chaste lives. Dissent from the campus orthodoxy is scarcely tolerated in some universities and not tolerated at all in others. And who is it, by the way, who is insisting on their views about homosexuality (and sexuality generally) being taught to children in public schools---even over parental objections? Christians? Ha. (Not in Princeton anyway.) And then there is abortion. I don't doubt their sincerity and good faith, but a vast number of people in the media, the entertainment industry, the academy, and the elite professions regard abortion as a sacrosanct constitutional right that must be protected at all costs--even if it means supporting late-term abortions, partial-birth abortions, live birth abortions, and sex-selection abortions, and imposing on the consciences of people (including pro-life physicians and other health care workers) who regard direct abortion as homicidal and gravely unjust. One might say they are . . . obsessed.
If you are a Catholic who sometimes watches network television, ask yourself these two questions: How often have you heard your priest preach on homosexuality and abortion? How often have you watched a preachy TV show or movie (or an interview with an actor or singer or other celebrity) pushing a liberal line about sex or abortion?
In the matter of Kurowski
Yesterday the New Hampshire Supreme Court issued its ruling on a dispute between divorced parents over their daughter's education. (HT: Volokh) The trial court ruled for the father, who wanted to send the daughter to public school, over the mother, who had been home schooling her, and the Supreme Court affirmed. These sorts of disputes are always thorny because the court by necessity is asked to rule on matters that implicate religious convictions and commitments. From the Supreme Court's opinion:
In its order, the trial court did not express a belief that daughter needed to be exposed to other religions that were contrary to or different from the beliefs of her parents. Instead, it considered the importance of daughter having the ability to openly communicate with others who have a different viewpoint on a subject matter, whether or not the topic is religious in nature. It also considered the benefits of group learning, group interaction, social problem solving and exposure to a variety of points of view. We reject mother’s contention that the trial court expressed disapproval of her actions in encouraging daughter to share her religious views. Rather, the trial court found that daughter’s firm religious convictions likely stemmed from the amount of time she spends with her mother, considering that daughter primarily resided with, and had been primarily educated by, her mother.
I do not know enough about the case to opinion on what the outcome should have been, and I acknowledge that courts are put in a very difficult position when they're asked to rule under these circumstances. But I am troubled to the extent that "exposure to a variety of points of view" is a basis for favoring public school in a dispute over a child's education. This rationale would not be limited to cases involving home schooling, but could also justify a preference against private religious schooling. I don't think that should be the state's call to make.
Sixth Annual Conference on Catholic Legal Thought
The Sixth Annual Conference on Catholic Legal Thought will convene at the University of Oklahoma College of Law two months from today. On May 17 we will spend the afternoon with Paul Griffiths, Warren Professor of Catholic Theology at Duke discussing "The Essential St. Augustine fr 21st Century Lawyers and Law Professors. To facilitate the discussion we are asking participants to read "Augustine: Political Writings," Adkins and Dodaro (eds), Cambridge Univ. Press 2001 and Books 2 & 19 from "The City of God." On May 18 we will have sessions on "The City of Man: What role should law play in infusing the City of Man with the City of God?" and "Forgiveness and Conversion: What should be law's attitude toward treatment of post-conviction criminals." And, on May 19, Steven Smith, Warren Distinguished Professor of Law at San Diego wlll present his book, "The Disenchantment of Secular Purpose," which should be read in advance to prepare us for a robust discussion.
Next week, I will post the complete schedule along with registration material.
Wednesday, March 16, 2011
Human dignity and Private Manning
Is there any justification for the conditions under which the Obama administration is holding Private Manning (the WikiLeaks soldier)?
Are Christians obsessed with gays and abortion?
David French tackles the question by looking at the groups to which Christians donate their money. (My own anecdotal evidence supports French's observation: of my many conservative Christian friends and family members, I'm not aware of many who give money to "culture war" advocacy organizations, but the vast majority sponsor at least one child through Compassion, World Vision, Holt, etc.)
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