Friday, August 27, 2010
In this NYT piece, Linda Greenhouse observes, with evident concern, that:
[A] familiar Ten Commandments case is now heading back to the Supreme Court. The court has spent years making a nearly complete hash out of the public display of religious symbols, and the prospect of watching lawyers and justices engage in still more contorted efforts to attach supposedly secular meaning to obviously sectarian objects and texts is not a pleasant one. But the case could provide a window on how committed the Roberts court is to the project that some justices have clearly embraced, that of carving out more space for religion in the public square.
That's an interesting way to describe the "project" -- "carving out more space", as if "religion" is not naturally (and inescapably) part of the "public square". One might just as well comment (with concern) about other courts' project of excluding religion from the public square.
Later in the piece, she suggests that the departure of Justice Stevens makes change in the Court's Establishment Clause doctrine likely:
Cases that concern the separation of church and state are among those on which the retirement of Justice John Paul Stevens is likely to have the greatest impact. For years, Justice Stevens was the Supreme Court’s strictest separationist. For example, in the abortion context, he was the only justice willing to articulate the position that laws incorporating the view that life begins at conception are theological exercises that should be invalidated on Establishment Clause grounds. (The fact that we may soon have to endure another debate over embryonic stem cell research makes me miss Justice Stevens and his wisdom all the more.) Justice Stevens lost most of his battles in the religion cases, but even in defeat he set a marker and made a record. For example, he wrote a powerful dissent this spring from a splintered and nearly incoherent decision that let Congress get away with swapping public land for private under the foot of a five-foot-tall cross on a hilltop in the Mojave National Preserve. In his opinion in that case, Salazar v. Buono, Justice Stevens said the cross sent a “starkly” and “inescapably sectarian message” that couldn’t be evaded by deeming the cross a memorial to the fallen soldiers of World War I.
Justice Stevens was, indeed, the only recent Justice who really thought (or, in any event, who said out loud) that regulations of abortion -- or even just declarations that life begins at conception -- run afoul of the Establishment Clause. It's not clear, though, why the departure of the one justice who held this outlier, and unsound, view (a view that, apparently, Greenhouse agrees with regarding stem-cell research) should be expected to change Establishment Clause doctrine. As she says, Justice Stevens "lost most of his battles" in this area. Which is (in this area) a good thing.
From Spencer v. World Vision, in defense of religious liberty in hiring:
The core of Judge Berzon’s dissent is the idea that performance of activities that are often performed in a secular context cannot be religious. That is mistaken. When the Pope washes feet on the Thursday before Easter, that is not secular hygiene, and the Pope is not a pedicurist.
At the consistently wonderful Books & Culture, check out Christopher Benson's review of Martha Nussbaum's Not for Profit: Why Democracy Needs the Humanities. Benson was optimistic ("What's not to love about a title that promises to argue for a humanistic ideal of education . . .?"), but his hopes were soon dashed. An excerpt:
[E]ven if we accept Nussbaum's contestable telos of education, we should ask if her progressivism is well equipped to achieve it. And the answer, I submit, is "No" for one principal reason. Lacking Augustine's grammar of love and sin, which constrain each other, her vision overestimates the possibilities and underestimates the limitations of education. Nussbaum's case for the humanities perpetuates the modern divorce between faith and reason, relegating faith to the private domain of family and church while elevating reason to the public domain of school. It assumes exclusive participation in the City of Man, ignoring citizenry in the City of God . . . And finally, despite Nussbaum's welcome attention to the emotional life, it views the human being primarily as a thinking thing rather than a desiring animal. Education should produce lovers and not merely democrats. To achieve this, our schools—extending the work of families and churches—will need to rightly order the affections (Augustine) and increase the power of holy attention (Simone Weil).
I missed this, but on Monday the Ninth Circuit
issued a reassuring (but not unanimous, unfortunately) decision for those of us who care about religious liberty in hiring. You can read the opinion
here.
Thursday, August 26, 2010
Doug Kmiec, a longtime friend and colleague of many MOJ readers and bloggers, and also the current Ambassador to Malta, was in a serious car accident yesterday afternoon in Malibu, California. I have not been able to find news coverage, and all I know is that Doug was taken to the UCLA Medical Center Trauma Center. Oremus.
UPDATE: A short news story is here. Another is here. Doug is reported to be in good condition.
Wednesday, August 25, 2010
British human rights attorney Aidan O'Neill responds to my skeptical post regarding the closure of the last Catholic adoption agency in the U.K. He notes that "things are a little more complex on the facts than my post implied":
It is of some note that the Charity Commission considered specific evidence as to the effect of the closure of the Catholic Care adoption agency on children seeking adoption, noting on this that the facts as found by the Commission did not support the claims by Catholic Care that if the charity had to close its adoption service, there were no other alternatives for the hard-to-place children who were matched with parents approved by the charity. The charity had on average provided parents for 10 children per year and the local authorities who placed children through them stated that there were in fact other agencies with as good a track record of finding adoptive parents and homes for such hard-to-place children.
The Commission also noted that as a matter of general child welfare law it is in the interests of children waiting to be adopted that the pool from which prospective parents are drawn is as wide as possible. The Commission heard and accepted evidence to the effect that same sex couples who registered for adoption were significantly more ready than opposite sex couples wishing to adopt to accept a sibling group as adoptees as well as children over 5.
In effect, then, hard to place children were more likely to be considered as potential adoptees by same sex couples and so it could not be said to be in the in best interests of a child seeking adoption that such potential adoptive parents should be screened out without consideration of the merits of placement with them by the application of an a priori rule such as Catholic Care sought to apply – i.e. no same sex couples accepted on their books as potential adoptive parents, albeit that single persons as adopters (without reference to sexual orientation) were considered by and sought by the charity.
I would also say that in my opinion the decision from Briggs J. which resulted in this case being remitted for the Charity Commissioners for reconsideration - seems to me to have been a masterly Solomon judgment if I may say so. Briggs J. came up with a well-thought out analysis for what he suggests is the correct interpretation of the relevant UK law prohibiting discrimination on grounds of sexual orientation – in particular Regulation 18 - which is to allows charities to discriminate on grounds of sexual orientation if - in the particular circumstances of their case - the public benefits of their so doing outweighed the disbenefits of the fact that they are so discriminating. The weighing of benefits against disbenefits was a matter which Parliament has entrusted to the Charity Commission which is why he ordered a to remit of the case back to it to allow it to conduct this exercise, which it has now done.
As Briggs J. notes - that if one accepts that in principle charities can properly be operated and provide their services having regard to sexual orientation issues (for example in providing help lines targeted at gay teenagers, or support to the heterosexual parents of gay children) then, in principle, there must be circumstances in which a charity may be justified in consciously targeting or restricting itself to a heterosexual majority. He suggest that such a targeting might be lawful if, on balance, good works resulted from it, regardless of the faith/motivation behind the targeting (all sounding rather like the Letter of James).
As it turns out the Charity Commission found in fact that the good work done by Catholic Care could in fact be done by other Voluntary Adoption Agencies which did not as a matter of policy discriminate on grounds of the sexual orientation of prospective adopters and which therefore thereby maintained the widest possible pool of adopters, which was clearly within the best interests of any children prospectively seeking adoption.
“We are awake to the hypocrisy and schemes of that designing, crafty, subtle, far-seeing and far-reaching Power, which is ever-grasping after the whole world, to sway its iron scepter with blood stained hands over the millions of its inhabitants.”
OSV's editorial tells us that these words were written not in protest to the proposed building of a mosque near ground zero but in protest of "of a gift by Pope Pius IX of a block of marble for the Washington Monument. The outrage felt by true-blue Americans was so great that the marble was reportedly tossed into the Potomac."
The editorial does not propose a solution to the mosque controversy but rightly hopes that legitimate dialogue and debate will trump heated rhetoric.
Tuesday, August 24, 2010
I rarely link to David Brooks on MoJ, but I find today's
column on the meta-cognition deficit to be especially fascinating: "Very few in public life habitually step back and think about the weakness in their own thinking and what they should do to compensate." It seems to me that members of religious communities are equally (if not more) susceptible to this problem, particularly to the extent that we dress up our thinking about an issue with fixed language of theological absolutes. I'm wondering whether, for example, the Church's slow embrace of religious liberty was, in the end, a cognitive problem. Other churches that I have attended have shown a reluctance to step back and acknowledge the extent to which their social positions had become affixed with one political party's platform (churches on both the "left" and the "right"). I have always explained these tendencies as a product of cultural osmosis where we lack the will to rise about our surrounding culture, but I suppose it may also stem from a lack of mental toughness, an unwillingness to think honestly about the path we're on and how our easy assumptions have led us astray.
