Mirror of Justice

Tuesday, July 20, 2010

James Kugel on "Religion and the Secular State"

Here is an interesting essay by Prof. James Kugel, called "Religion's Place in the Secular State and Armed Conflicts of Today." Here is the introduction:

The relationship between religion and the state is one of the most hotly contested and interesting challenges facing modern, secular governments. In the recent months alone, it has appeared in Quebec, where a judge decided that a Catholic school cannot teach nationally required subjects from Catholic perspective; in the U.S., whose Supreme Court held that Hastings College Law School may legally exclude a Christian student group; in France, which passed legislation banning the wearing of burqas; and in Italy, which the European Court of Human Rights ruled must remove crucifixes from its public classroom walls.

Religion is also a matter of crucial importance in the current, escalating situation of conflict in the Middle East. How much of the conflict can be traced back to religion? And if culpability is found, is religion itself to blame, or can particular attributes of particular religions be identified as culpable forces?

Professor James Kugel, Director of the Institute for the History of the Jewish Bible, and Professor of Bible at Bar Ilan University in Ramat Gan, Israel, spoke to ilsussidiario.net about the issue of orthodoxy and the state. Formerly Starr Professor of Hebrew Literature and director of the Center for Jewish Studies at Harvard, Professor Kugel has explored the value of orthodoxy in many of his books and journal contributions. He spoke to us from Israel in order to shed light on some of the important questions of religion, war, and state that factor into the debate.

The Scope of the Bishops' Teaching Authority

By Eduardo Penalver

I noticed this article in NCR and had meant to post something on it. I continue to think it odd that the Vatican would be upset that the sisters supported health care reform based on their own understanding of what the law would do vis-a-vis abortion rather than deferring to the USCCB's predictions about the likely impact of the legislation. They did not, after all, question the Church's teaching on abortion. They simply disagreed with the bishops over what this particular piece of legislation would mean. And the competence required for interpreting a highly complex piece of legislation hardly seem to be the exclusive province of the bishops or their legal advisors.

Anyway, I wanted to post something about this, but never found the time. Luckily, the editors at Commonweal beat me to the punch, writing a post that basically makes the same basic point I wanted to make, but more colorfully and in the context of their response to criticism by law prof Helen Alvare of an article in Commonweal by law prof Timothy Jost, the latter of which argued that the law would not provide federal funding of abortion.

Alvaré thinks our disagreement with the bishops conference shows us to be ”both arrogant and naive,” but as Richard R. Gaillardetz has pointed out, neither the bishops nor their lay advisers have an exclusive claim to competence when it comes to the technical evaluation of public policy. Nor can the bishops conference, despite its consistent and often heroic efforts on behalf of the unborn, fairly claim ownership of prolife principles. Professor Jost does not have less credibility as a prolifer because he is not a Catholic, or because he sometimes disagrees with the bishops conference about other issues. It is unbecoming of Alvaré and the editors of Public Discourse, a nonsectarian outfit, to try to turn this dispute into an ecclesial turf war. It is possible for Mennonites — or Mormons or Zoroastrians — to construe a piece of legislation correctly and for Catholic bishops to misconstrue it.

(Prof. Jost provides his own response to Alvare here.) I would have thought this a relatively uncontroversial position among Catholic conservatives. Indeed, it seems to me the same "prudential judgment" move that economically conservative Catholic commentators frequently make when explaining why they do not feel compelled to defer to the bishops' teachings on economic policy. Here's Stephen Bainbridge, quoting Charles Rice, on why he was not obligated to support an increase in the minimum wage, even though the bishops supported it:

specific policy statements, such as those found in the Bishops' pastoral letter [Economic Justice for All], are properly viewed as prudential judgments about how Catholic social teaching applies to the question at hand. Faithful Catholics are free to question such judgments, because the "bishops, as bishops, have no greater insight into policy matters than anyone else."

Here's what the bishops say in Economic Justice for All:

As bishops, we do not claim to make these prudential judgments with the same kind of authority that marks our declarations of principle. But, we feel obliged to teach by example how Christians can undertake concrete analysis and make specific judgments on economic issues. The Church's teachings cannot be left at the level of appealing generalities.

My own thought is that the bishops are entitled to some deference on policy questions -- certainly not none, as Bainbridge (quoting Rice) suggested (wrongly in my view) in the context of economics, when he said that the bishops have no greater insight than anyone else on policy matters. But I hardly think it is somehow inappropriate to carefully consider the alternative interpretations provided by legal experts like Jost and come to the conclusion that the bishops are ultimately mistaken. Of course, there might be situations where the evidence is so clear that to take the contrary position is a sign of bad faith. But that is hardly the case here.

St. Bernard, pray for us

By Rick Garnett

This post has nothing to do with Catholic Legal Theory (except, I suppose, in the sense that climbing mountains can be seen as a metaphor, maybe, for seeking the truth). I am going to try to climb the Grand Teton this weekend, and would welcome MOJ-ers prayers!

A Kinship of Faiths

By Susan Stabile

About ten days ago, I had an exchange with Rick (in this post and its comments, stemming from Rick's earlier post here) about the Dalai Lama's views about the relationship among religions. For those interested in the subject, I highly recommend the Dalai Lama's most recent book, Toward A True Kinship of Faiths, which I just finished reading. I wrote about it in a Cren en Dios! blog post this morning, which you can find here.

Monday, July 19, 2010

Douthat's Tribalism

By Eduardo Penalver

I don’t usually read Douthat’s column. But today’s headline caught my eye. I figured from the title that he was going to blame liberals for racial hostility on the Right. That’s not quite what he did. Nevertheless, I found his column to be perverse, but in a slightly different way than I had expected. His discussion relies heavily on a study of admissions at elite colleges and universities, which found that poor whites are less likely to be admitted to these institutions than comparably qualified whites with higher incomes:

while most extracurricular activities increase your odds of admission to an elite school, holding a leadership role or winning awards in organizations like high school R.O.T.C., 4-H clubs and Future Farmers of America actually works against your chances. Consciously or unconsciously, the gatekeepers of elite education seem to incline against candidates who seem too stereotypically rural or right-wing or “Red America.”

This provides statistical confirmation for what alumni of highly selective universities already know. The most underrepresented groups on elite campuses often aren’t racial minorities; they’re working-class whites (and white Christians in particular) from conservative states and regions. Inevitably, the same underrepresentation persists in the elite professional ranks these campuses feed into: in law and philanthropy, finance and academia, the media and the arts.

Where to start. First, let me say straight out that, as a resident of a rural area, I agree that there’s a real problem with how this country addresses (or, more accurately, neglects) problems of rural poverty. And I agree that that neglect includes elite educational institutions, though I doubt my employer has that problem to the same degree as Douthat’s alma mater. Of course, the problem goes well beyond college admissions. But, like David Brooks, Douthat is expert at taking social science and twisting it to suit his preconceived partisan agenda. So he chooses to focus on those godless liberals running America’s top universities.

We then arrive at his strange parenthetical about elite schools discriminating not only against the urban poor but against “white Christians in particular.” What’s his evidence that white Christians are uniquely disfavored by elite colleges? None that he points to in the piece, unless we are to take his claim about what the “alumni of highly selective universities already know” (i.e., Douthat himself) as an authoritative source. Why does Douthat think that poor, rural white Christians are particularly disfavored, as opposed to rural, white working class people in general? Which non-Christian white, rural working class people are being welcomed by admissions officers? While most of the disfavored group (the white, rural poor) are in fact Christian, what’s the evidence that their religion is motivating their exclusion in any way? Are wealthy Christians suffering the same fate? It’s interesting that, of his examples of the activities colleges disfavor (4-H, FFA, and ROTC), none of them are, in fact, religious.

Douthat’s lack of evidence that the white Christian poor are uniquely disenfranchised raises the crucial question: why stretch to Christianize this point? Why not simply let the data speak for itself and talk about the struggles of the rural poor in America? Because that would ruin Douthat’s partisan objectives. If the struggles of the rural poor are a problem of poverty and the shortcomings of our meritocracy in dealing with issues of poverty, particular rural poverty, then the solution is plainly redistributive. Or, put another way, if the problems of the rural poor are framed in economic terms, rather than religious/cultural ones, then Douthat’s column — and the data it highlights — would raise the question of what either party has been doing for the rural poor. This would be a particularly interesting question to address in light of recent stories about rural counties tearing up paved roads because they can’t afford to maintain them at precisely the moment the Senate GOP is filibustering federal aid to state and local governments.

But that conversation would be far too messy for Douthat, so, despite the pesky lack of evidence, he has to turn the story from one of class bias into one of religious bias in order to fit it within the tidy red-state, blue-state framework. Add the label “Christian” to the group being excluded, and, voila! class struggle becomes culture war. The enemy is not the elite, which resides in both parties (though we could have a nice discussion about which party’s policies better serve the rural poor). The enemy is the liberal, urban, secular elite out to keep you from finding Jesus (as a Republican congressional candidate from Missouri put it the other day). Pay no attention to the GOP agenda of tax cuts and deregulation, which will do nothing for the rural poor, white or black or brown. This is just pure hackery. I should have stuck to my normal policy of ignoring Douthat’s columns.

Friday, July 16, 2010

"It's a redefinition of marriage"

By Robert George

Andrew Sullivan used to argue, and some people still do, that recognizing same-sex partnerships as legally valid marriages would not harm the institution of marriage, understood as a monogamous and sexually exclusive relationship, and would, indeed, result in greater monogamy among actively homosexual men. The argument always struck me as implausible because the abandonment of the conjugal (or "one-flesh union") conception of marriage leaves no ground of principle for supposing that marriages should be monogamous. I've presented my reasons for believing this in "What's Sex Got to Do With It? Marriage, Morality, and Rationality," in Robert P. George and Jean Bethke Elshtain (eds.), The Meaning of Marriage (Spence, 2006).

Evidence is now beginning to pour in that a vast number of persons in same-sex sexual partnerships, including those legally recognized as marriages, simply do not view monogamy or sexual exclusivity as part of the meaning of marriage. On January 28th of this year, the New York Times published an article previewing a San Francisco State University study documenting the huge percentage of male couples whose relationships are sexually "open." The reporter, Scott James, was "nonjudgmental" about this, even observing that "while [it] may sound counterintuitive, some experts say that boundary-challenging gay relationships represent an evolution in marriage---one that might point the way to the survival of the institution." He quotes "relationships" expert Joe Quirk, who has no problem with sexually open marriages, saying that "[i]f innovation in marriage is going to occur, it will be spearheaded by homosexual marriages." Here is the link: http://www.nytimes.com/2010/01/29/us/29sfmetro.html In other words, recognition of same-sex partnerships as legally valid marriages is indeed likely to alter the social understanding and meaning of marriage in general, and reshape its norms.

This week the San Franciso State study was officially released. Here is the story about it from the San Francisco Chronicle. http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/07/15/DD4C1EDP1A.DTL The story also reports on a study funded by a (non-monogamous) Bay area male couple (Lanz Lowen and Blake Spears). In the study, "three out of four people described non-monogamy as a positive thing, and said it gave them a sexual outlet without having to lie. Participants reported it helped relationships survive by providing honest options and minimizing deceit, tension and resentment. Some 'played' independently, others as a threesome, and about 80 percent agreed to tell all or some details of their encounters, the rest preferring a 'don't ask, don't tell' policy."

According to Spears, "having an open partnership is not incompatible with same-sex marriage." In words that strike me, for all my moral differences with Mr. Spears, as incontrovertibly true, he said that "it is a redefinition of marriage." I appreciate his honesty and candor. The real question is not whether the legal recognition of same-sex partnerships as marriages will alter the meaning of marriage and its norms. What seemed logically to follow has been borne out empirically. The real question is whether it is a good thing or a bad thing to redefine marriage in a way that will render the norm of monogamy merely optional---a matter of subjective preference, a "lifestyle choice." People like Mr. Quirk and Mr. Spears are prepared to argue that it's a good thing. I think they're wrong---disastrously so. But even if their answer is wrong, at least it is an answer to the right question.

Alvare on Commonweal on the PPACA

By Patrick McKinley Brennan

Helen Alvare has a strongly reasoned piece up at Public Discourse on Commonweal's apparently willful naivete about the coming effects of Patient Protection and Affordable Care Act. Check it out.

Thursday, July 15, 2010

Ruled by a text?

By Patrick McKinley Brennan

And so the thot plickens (and other Spoonerisms) . . . My response to Rick's rich questions begins, as Rick knows (from, inter alia, the public discussions many of us had at the recent "Annual Roundtable on Law and Religion"at Brooklyn Law (thanks again, Nelson!)), from the premise that the focal case (prime analogate) of law is: the ruling *mind* ordering other *minds* toward the common good. I regard the substitution of texts for mind, as the locus/source of law, as *the* problem (yes, symptom of the deeper problem (of voluntarism)). Now, the regulating mind of the lawgiver does indeed need to be promulgated (as a condition, indeed, of its becoming *law*), and that promgulation typically takes the form of a written (as opposed to oral) statement. But I don't take writtenness, even of a constitution (even *our* Constitution), as a reason to conclude that a text takes on a law-giving role independent of the lawgiver. To be sure, lawgivers' obligation to *promulgate* what they mean to be law will usually assure that there's a pretty tight convergence between the law, on the one hand, and what is promulgated, on the other, but scriveners' errors are just one example of why text does not equal law. The impossibility of perfect transmission/translation of the *mental word* into the *spoken word* -- and this is the core issue -- assures that texts cannot rule. An additional reason texts cannot "rule" is that the very conditions for taking promulgations-in-the-name-of-law seriously as *law* is that they are to contribute to the common good; where promulgations don't facially contribute to the common good, there is reason, though it too has constraints, to construe them in such a way as to cause them to do so. So, I take the written texts very seriously indeed, but I don't imagine that I or anyone else can be ruled by a text as such. "Textualism" is just the limit case, it seems to me, of an attempt to substitute stuff (e.g., *probabilities* of meaning generated by dictionary surfing) for (the meaning of an authoritative/ruling) mind. Saying as much, I recognize the transaction (and other) costs of not stipulating that texts ("objectified intent," as Scalia calls them) are "law."

What say you, Rick?

Obviously, if one doesn't share my starting points (about law's being *exactly* [in the focal case] authoritative mind ruling subordinate mind), textualism (and other equally well-intentioned evils) are good to go.

Response to Patrick re: judicial power, textualism, natural law, and the like

By Rick Garnett

Thanks, Patrick, for your response. I do not think I disagree with much -- if any -- of what you say, as a matter of principle. My purpose (no pun intended) in resisting (what I *think* is) the Arkes view of federal-judging-in-constitutional-cases is not to defend the "voluntarism" that Patrick sees lurking behind "textualism." I'm not making claims about what it means, as a general matter, to "make law", or to "judge", or to exercise "judicial review." It seems to me, though, that *our* Constitution is a written one -- it is a "text" -- and it matters that it is a "text." It is *that* text (and positive laws made pursuant to it) -- and not anything else -- that *our* federal judges have the authority to interpret and, in effect, to enforce. (Let's put aside diversity jurisdiction, etc.) Now, to say this is not to pretend that difficult questions are not presented about what this text means, or about how its meaning ought to be discerned. It is to say, though, that, when federal judges judge, the "target" is the meaning of this text (and is not the content of the natural law, considered apart from its instantiations and specifications in this text).

Patrick, do you disagree so far?

Save the date: Abortion conference at Princeton

By Rob Vischer

This October, pro-life and pro-choice advocates will gather at Princeton for a conference designed to facilitate a public discourse of "open hearts, open minds, and fair-minded words." Participants include John Finnis, Peter Singer, Frances Kissling, Robin West, Helen Alvare, Dawn Johnsen, and Anita Allen, among others. I'll be speaking about rights of conscience, and MoJers Rick G. and Lisa S. will also be making appearances. Listening to John Finnis, Maggie Little, and Peter Singer discuss the moral status of the fetus should itself be worth the (very reasonable) price of admission. Registration is now open.