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, November 3, 2010

On the Idea of Doctrine

By Marc DeGirolami

The idea of doctrine is unusual as a feature of scholarly attention.  The only two spheres of academic learning that I can think of which rely on the idea of doctrine are law and theology.  One might even say that doctrine is crucial for these two areas of learning, and anathema for most others. 

Legal doctrine is studied extensively by law students, and times were that "doctrinal" scholarship was the primary preoccupation of law professors.  That changed to some extent with the coming of both the crits and the 'law and...' phases of legal scholarship, though there continue to be accomplished and interesting doctrinalists (indeed, I have noticed a new wave of young-turk doctrinalists lately -- in some ways, it is they who are today's subversives).  But even those who plow the interdisciplinary and critical fields know to pay doctrine its due; stray too far from it and one's writing begins not to look like legal scholarship at all.  It may even be that it is doctrine which puts the 'legal' in legal scholarship.  I am far less familiar with the history of theology as a discipline, but it seems to me that the interpretation of doctrine would play a central role in the life of the theological scholar.  The accretion of exegetical incrustations is a happy and welcome event for theology, a sign that the field is thriving, and when one becomes a theologian, my guess is that one is committing oneself to the idea of doctrine as a core feature of one's writing life -- even if it is one's aim to offer reforming, novel, or radical doctrinal interpretations.   

Is there any other discipline in which the idea of doctrine is accorded respect, let alone pride of place?  Does it make any sense to speak to a philosopher or a literary critic, a scientist or an architect or a mathematician, about doctrine?  In these fields and most others, doctrine, to the extent that it appears as an intellectual phenomenon at all, is an impediment.  It is an obstacle to be blasted through, something to be challenged and replaced.  Parricide is the order of the day, and if there are doctrines out there, they are regarded with executioner's eyes by the next scholarly generation.  Naturally there are dogmas in all fields, law very much included, but the idea of dogma is different than the idea of doctrine.  A dogma is an entrenched but temporary piety; a doctrine has greater permanence and less attitude.  A doctrine is regarded by those within the discipline as fundamental, a cornerstone on which sound buildings can be constructed, redesigned, and reconstructed.  A dogma is more militant, more ambitious, and more brittle.

What can explain the prominence of doctrine in law and theology?  This is too large a topic for a blog post, but some rank speculation follows after the jump (which I hope readers will supplement). 

Continue reading

Many pro-life Democrats lose

By Rick Garnett

The Christianity Today politics blog has a pretty up-to-date tally of how pro-life Democrats (that is, Democrats "who voted for the original Stupak-Pitts Amendment (which would have banned abortion funding in the health care bill) and final passage of the health care bill (which did not include the Stupak-Pitts amendment)").  (My own representative, Joe Donnelly, is such a Democrat, and he won -- without a majority of the vote -- with, it appears, some help from the Libertarian candidate.)

Personhood amendment fails in Colorado

By Rick Garnett

Story here:

Amendment 62 would have changed the state constitution - stating that a person is a person "from the moment of biological beginning." That, in effect, would outlaw abortions in Colorado. But, opponents feared it would reach much further, affecting in-vitro fertilization, contraception and some medical procedures.

"I think that our over 70 organizations of doctors, nurses, faith leaders, medical researchers, civil rights folks and health care advocates throughout the state have done a very good job of education Colorado voters," says No on 62 Campaign Director Fofi Mendez.

The measure failed on a 3 to one margin, much like a similar measure did in 2008. Supporters of the Personhood Amendment couldn't be reached last night. But in past interviews with KUNC they stated that they hoped a more conservative electorate would mean victory. They've also stated that a loss would not stop them from trying again in the future.

School choice in the Supreme Court

By Rick Garnett

Today (in a few minutes, actually) the Supreme Court will hear oral arguments in a school-choice and church-state related case out of Arizona, called Arizona Christian School Tuition Organization v. Winn.  (To learn more about the case, check out this helpful summary at SCOTUSBlog, and this argument preview by Lyle Denniston.)

There is a non-trivial chance that the Court will not reach the merits of the First Amendment challenge to Arizona's (very successful and entirely, in my view, sound-as-policy-matter) tuition-tax-credit program.  But, if they do, they should certainly uphold the program, and reverse the Ninth Circuit's misguided misinterpretation and misapplication of Zelman.  Programs like Arizona's are proving more successful, and more politically do-able, than "voucher" programs, and they are essential to education reform.

Tuesday, November 2, 2010

"There is no Catholic vote . . .

By Rick Garnett

. . . but on social policy, everyone now speaks Catholic," suggests Jody Bottum.  I (deliberately) held off on posting this until the pre-election-type discussions were over (or, at least, moot), because I think Bottum's claim is an interesting one, wholly and apart from how one thinks Catholics should vote in today's election.  After noting that Catholic voters seem to vote like, well, pretty much everyone else, he continues:

Which is not to deny the distinctiveness of Catholicism—the Catholic system of thought. Elections, in one sense, involve nothing more than the attempt to translate moral authority into political power, and the Catholic hierarchy has little moral authority left on the national scene. After the priest scandals and the constant attack from the nation’s press, the Catholic church as an institution is weaker now than anytime since the great waves of Catholic immigration in the 1880s first brought it real power in America. 

The major role, perhaps the only role, that Catholicism genuinely plays on the American stage anymore is as a source of the vocabulary for phrasing moral issues. If you had to describe a typical member of the new generation of Republican candidates, it would be a former military officer, now a local businessman, who attends a center-right Evangelical church and never ran for public office before. Which makes it all the more astonishing that, typically, he speaks the Catholic language of moral issues so seamlessly and well. . . .

. . . the vocabulary of Catholicism, that way of bringing religiously grounded moral claims into the public square, and doing so nonreligiously: It’s simply here in American electoral politics. Here in 2010, and for a good long while to come. 

Interesting.

One of the most important religious freedom cases in years?

By Rick Garnett

Professor Friedman notes, over at the "ReligionClause" blog, that

a petition for certiorari (full text) was filed in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC.  In the case, the U.S. 6th Circuit Court of Appeals held that parochial school teachers who teach primarily secular subjects are covered by the Americans With Disabilities Act. They are not "ministerial employees" who are excepted from coverage. (See prior posting.) The Becket Fund issued a press release announcing the petition seeking Supreme Court review."

Eugene Volokh has more, here.  Here's a helpful quote from the petition:

This Court has long recognized the right of religious organizations to control their internal affairs. Watson v. Jones, 80 U.S. 679, 728–29 (1871). This right includes the freedom of religious organizations “to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116 (1952). Most importantly, it includes the right of religious organizations to select their own religious leaders. Ibid.; Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 724–25 (1976); Gonzalez v. Roman Catholic Archbishop, 280 U.S. 1, 16 (1929).

Based on this right, twelve federal circuits have recognized the “ministerial exception.” (The Federal Circuit has no jurisdiction over cases that could present the issue.) The ministerial exception bars lawsuits that interfere in the relationship between a religious organization and employees who perform religious functions — most obviously, lawsuits seeking to compel a religious organization to reinstate such an employee or seeking to impose monetary liability for the selection of such employees. As the first court adopting the ministerial exception explained: “The relationship between an organized church and its ministers is its lifeblood”; allowing the state to interfere in that relationship — effectively allowing judges and juries to pick ministers — would produce “the very opposite of that separation of church and State contemplated by the First Amendment.” McClure v. Salvation Army, 460 F.2d 553, 558, 560 (5th Cir. 1972).

Based on this principle, every circuit has agreed that the ministerial exception bars most lawsuits between a religious organization and its leaders. Every circuit has also agreed that the ministerial exception extends beyond formally designated “ministers” to include other employees who play an important religious role in the organization. And all eleven circuits to consider the question have agreed that the ministerial exception survives this Court’s decision in Employment Division v. Smith, which reaffirmed the cases underlying the ministerial exception — namely, cases forbidding the government from “lend[ing] its power to one or the other side in controversies over religious authority or dogma.” 494 U.S. 872, 877 (1990).

But the agreement ends there. Federal circuits are in sharp and acknowledged conflict over what legal standard controls the boundaries of the ministerial exception, and specifically over the “primary duties” test used by the Sixth Circuit here. The conflict has produced directly conflicting results in factually indistinguishable cases, and is widely recognized and firmly entrenched. This case presents an ideal vehicle for resolving the split and providing guidance on an important constitutional question.

If the Court takes this case, it will -- I think -- be among the most important religious-freedom decisions of the last 30 years (up there with Smith and Mitchell / Zelman). 

 

Lithwick on the Red Mass and the State of the Union

By Rick Garnett

"Will more Supreme Court Justices attend this year's Red Mass [or, as she puts it, 'Red Mass'] than next year's State of the Union?", Dahlia Lithwick asks in this Slate piece.  After recalling how the President's (inaccurate) description of the Citizens United case prompted Justice Alito last year to shake his head and say "not true" during last year's SOTU, she says, among other things, that:

At the Red Mass this year, the justices heard a homily that flicked at the evils of abortion, gay marriage, and "humanism." There is no record of any justice in attendance furiously mouthing the words "That's not true" as these admonitions were delivered. For what it's worth, I would be just as uncomfortable if these justices all trooped en masse to Kol Nidre services to hear a stem-winder about the magic of creationism. (Which may explain why Justice Ruth Bader Ginsburg stopped attending the Red Mass altogether after hearing her very first homily, which she has described as "outrageously anti-abortion.")

Of course, there was nothing "furious" about Justice Alito's reaction at the SOTU last year, but put that aside.  Put aside also questions one might have about what, exactly, the point is supposed to be of her observation that Justices didn't react to a homily that proposed for the lawyers assembled certain claims about the implications for policy of a commitment to human dignity and equality in the same way that Justice Alito reacted to a partisan mischaracterization of what the Court had, in fact, done.

The Red Mass [or, "Red Mass"] story serves, it turns out, simply as an introduction to a piece about the possibility that the Justices stand poised this year (or soon) to "dramatically" transform Establishment Clause evidence, and about -- more particularly -- a case involving the federal RLUIPA.  She concludes with this:

They will dispose of [the RLUIPA case] without ever reaching the troubling question of how a cross can be one man's universal and secular symbol of remembrance and the core element of another man's religious practice. It is this same tension that leads one to question how sitting through the Red Mass has become less awkward for some justices than attending the State of the Union. These aren't questions we get to ask of the justices. But maybe they are questions they can ask of themselves.

I don't get it.  What's the connection?  What am I missing?  What does the question presented in the RLUIPA case have in common -- at all -- with the Red Mass v. SOTU question?

  The Red Mass It seems to me that Lithwick is attempting to equate two very different things.  Justice Alito said "not true" because what the President said was, in fact, "not true."  It is a different thing, it seems to me, for a Catholic bishop to propose, to lawyers gathered to reflect on their shared vocation, that, say, abortion is  

The Election: The Problem with the current political arrangements

By Michael Scaperlanda

"As is the case every several years, we are asked to tune in briefly to decide which impersonal agent in the society will work to effect the common good – whether the market or the government. We are then expected, and largely welcome, the freedom to tune back out. And, predictably, our present discontents are born of the fact that neither of these agents is very good at providing for what’s promised, giving birth to extensive civic disillusionment and frustration."  In this essay, Patrick Deneen reminds us of an alternative to the current debate.

Elshtain on Sovereignty

By Rick Garnett

I had the chance to (finally) read Jean Bethke Elshtain's Gifford Lectures, "Sovereignty:  God, State, and Self."  Wow.  Run, don't walk, to . . . Amazon and buy it.  Here's just one review:

Dismissed by most political theorists as a mere encumbrance, theology serves Elshtain well in this historical analysis of the two incarnations of sovereignty that have forged the modern world: the nation-state and the individual self. Originally delivered as the Gifford Lectures of 2005–06, Elshtain’s insightful investigation explains how political thinkers such as Machiavelli and Hobbes first endowed the nation-state with absolute sovereignty over society by politicizing the innovative theology of nominalist philosophers such as William of Ockham, who elevated God’s sovereign will above His discernible reason. Readers thus confront the perilous political dynamics in a nation-state as powerful and as capricious as Ockham’s God. Elshtain traces the lethal consequences of this modern theopolitics in the bloody atrocities of the French Revolutionaries, the Nazis, and the Soviet Communists. Inevitably, the deified modern state fractured into millions of divinized modern selves, each intent on establishing and defending its own godlike sovereignty. Champions of modern selfhood celebrate the unprecedented autonomy of the liberated individual; Elshtain, however, warns that a self that claims its godhood by severing restraints imposed by ancestors, religious orthodoxy, and community will ultimately destroy the cultural ecology necessary to a meaningful life. An illuminating though sobering new perspective on the conjunction between religion and politics. --Bryce Christensen

"Serving Two Masters"

By Rick Garnett

Stanley Fish's recent column, "Serving Two Masters:  Shariah Law and the Secular State", will be of interest to MOJ readers, I think.  He considers, among other things, this question:

 “How far can liberal democracy go, both in accommodating minority groups in public policy, and, more profoundly, in granting official legal recognition to their beliefs, customs, practices and worldviews, especially when minority religious conduct and values are not congenial to the majority,” that is, to liberal democracy itself?

The question is, of course, an important one.  To be sure, Christians will want to ask themselves a related, but different, question, namely, "how far can Christians go, in submitting to, or embracing, the demands made by contemporary understandings of liberal democracy?" 

Fish also notes John Milbank's suggestion (which is consonant, I think, with the proposition that animates Dignitatis humanae) that

"only a distinctly Christian polity — not a secular postmodern one — can actually accord Islam the respect it seeks as a religion.” The italicized phrase is key: the respect liberalism can accord Islam (or any other strong religion) is the respect one extends to curiosities, eccentrics, the backward, the unenlightened and the unfortunately deluded. Liberal respect stops short — and this is not a failing of liberalism, but its very essence — of taking religious claims seriously, of considering them as possible alternative ways of ordering not only private but public life.

Christianity, says Milbank, will be more capable of deeply respecting Islam because the two faiths share a commitment to the sacred and to a teleological view of history notably lacking in liberalism (again, this is not a criticism but a definition of liberalism): A “Christian polity can go further in acknowledging the integral worth of a religious group as a group than a secular polity can.” Christianity can acknowledge the worth of Islam not merely in an act of tolerance but in an act of solidarity in the same way that Christian sects can acknowledge each other. . . .

Fish's column, no surprise, prompted lots of comments; here is Fish's response to those comments.

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