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.

Friday, July 9, 2010

Vischer on the CLS case

By Rick Garnett

Rob has an excellent essay on the CLS case ("Diversity and Discrimination in the Case of the Christian Legal Society") up at Public Discourse.  He writes (among other things) that:

Put simply, the case is a lesson in the legal norms surrounding dangerously amorphous concepts such as “diversity” and “discrimination,” and is an example of how those concepts can contribute to a robust, thick conception of the common good . . . or not. There are central questions that do not even appear to be on the radar screens of universities, courts, or other decision-makers that are shaping the course of these conversations: Is “discrimination” always bad? If diversity is an important value in our society, where does associational diversity rank? Does our framework of liberty include the right to exclude? The factual history and legal analysis of Martinez leave us to wonder whether we even have the resources and inclinations as a society to engage these questions, much less to draw meaningful distinctions among types of discrimination.

Standing up for associational freedom need not crowd out the legitimate place that anti-discrimination norms hold in a society that has admirably labored to remedy past injustices toward, and continuing marginalization of, certain segments of society—including gays and lesbians. At the same time, anti-discrimination norms can corrode the core beliefs that animate associational life.  . . .

Our struggle to define and demarcate “discrimination,” to identify the sort of diversity that is conducive to a vibrant, participatory, and just society, and to figure out how formal legal norms can support these projects is primarily a political inquiry, not a constitutional one. The Martinez Court’s holding has pushed the constitutional dimension further from view, and the Court prudently recognized that its decision is not the final word, explicitly cautioning against confusing the advisability of the law school’s policy with its constitutional permissibility. The next challenge is clear: we must think seriously about how to help deepen our public discourse about discrimination and diversity to include recognition that associational diversity is a key component of religious and moral liberty, and that even if a university now has the right to make all groups accept everyone, it is a right best left unexercised.

J'agree.

A Canon Law conference of interest

By Rick Garnett

On August 3 & 4, the Shrine of Our Lady of Guadalupe in LaCrosse and Archbishop Raymond Burke are hosting a "Canon Law Conference for Canonists and Civil Attorneys,"  One of the speakers is my friend and colleague,Fr. John Coughlin, who is an excellent scholar and a beloved teacher and priest at Notre Dame.  For more information, go here. 

Some thoughts on the "Dictatorship of Relativism"

By Rick Garnett

I am late weighing in to the discussion about then-Cardinal Ratzinger's use of the term "dictatorship of relativism".  It seemed to me then, and still seems to me now, that the term is helpful and insightful.  To be sure, as Michael P. and Bob have noted, one wants to distinguish "relativism" from "not embracing the moral truth as I understand it."  But surely we should hesitate before thinking that Ratzinger -- a very, very learned and intelligent man -- is not sensitive to this distinction.  (It seems a safe, even if rebuttable, rule of thumb -- one that owes nothing to piety or clericalism -- to operate on the basis of the assumption that people as smart as Ratzinger do not make obvious mistakes in his thinking.)

I know that Michael said, a few days ago, and maybe he hasn't, but I certainly have.  That is, I have met many people who at least claim to believe that "morality is subjective" or that "right and wrong depend entirely on one's own not-evaluable-by-outsiders assessment of costs and benefits in a particular situation."  Is there anything wrong with calling the content of such beliefs "relativism"?  I don't think so.

And so, what is the "dictatorship of relativism"?  It refers -- helpfully, I think -- to the present-day phenomenon of deploying such beliefs -- and, in particular, of public officials' deployment of such beliefs -- in order to avoid engaging with, to marginalize, and even to silence, those who believe that there are, in fact, moral truths that have a claim on our assent because they are true, and not merely because we like their implications.

More on CLS v. Martinez

By Rob Vischer

I've written a short essay for the Witherspoon Institute's "Public Discourse" website about the Christian Legal Society case.  Here's an excerpt:

So if the significance of Martinez cannot be explained away as the enforcement of a neutral open membership requirement or as a straightforward government funding case, what are the case’s lessons? Put simply, the case is a lesson in the legal norms surrounding dangerously amorphous concepts such as “diversity” and “discrimination,” and is an example of how those concepts can contribute to a robust, thick conception of the common good . . . or not. There are central questions that do not even appear to be on the radar screens of universities, courts, or other decision-makers that are shaping the course of these conversations: Is “discrimination” always bad? If diversity is an important value in our society, where does associational diversity rank? Does our framework of liberty include the right to exclude? The factual history and legal analysis of Martinez leave us to wonder whether we even have the resources and inclinations as a society to engage these questions, much less to draw meaningful distinctions among types of discrimination.

"Winter's Bone"

By Michael Perry

Last year, several of us recommended some films, including "The Hurt Locker", which went on to win the Academy Award for best film, and "Precious".

I haven't seen "Winter's Bone", but after reading this review, I'm eager to see it.

'Winter's Bone' is a backwoods masterpiece

By DAVID GERMAIN, AP Movie Writer

Tuesday, June 8, 2010 at 6:19 a.m.

The sober little indie gem "Winter's Bone" is a stellar alternative to the studio dreck that has given Hollywood a case of the box-office ho-hums right now.

The tale of an indomitable Ozark Mountain teen determined to hold together her family and home, "Winter's Bone" is raw, real, understated, fiercely intense and surprisingly gentle and decent amid bursts of ferocity in the rural crime culture where the story's set.

In barely an hour and a half, writer-director Debra Granik immerses the audience in a rich, almost alien trek through a cloistered backcountry that outsiders rarely see.

Roughhewn clothing, earthy slang, roots music, gloriously bleak landscapes, the graphic lesson a sister teaches her young brother on how to skin and gut a squirrel for frying - the detail captured in "Winter's Bone" is remarkable.

As a youth on a desperate search to learn the fate of her wayward, lawless father, Jennifer Lawrence delivers a breakout performance as stirring as those of 2009 Academy Awards nominees Gabourey Sidibe ("Precious") and Carey Mulligan ("An Education").

With a screenplay by Granik and producing partner Anne Rosellini, who crafted an extremely faithful adaptation of Daniel Woodrell's taut novel, the film casts Lawrence's Ree Dolly adrift among some very bad kinfolk in her severe corner of rural Missouri.

Stuck raising her younger brother and sister and tending to her almost catatonically depressed mother, 17-year-old Ree learns her absent father put up the family homestead and surrounding timberlands to post bond on his latest arrest for cooking crystal meth.

Now her dad has dropped out of sight with a court date at hand, leaving the Dollys in danger of eviction.

With slow, inexorable momentum, Ree trudges the countryside, staring down distant relations in the region's criminal underbelly for answers about her father.

Each exchange Granik orchestrates is its own wonderful drama. Ree appealing in fearful boldness for help from her father's menacing, drug-abusing brute of a brother, Teardrop (John Hawkes). Ree spitefully dismissing a ruse by one of her dad's associates as he tries to throw her off the trail. Ree, wise beyond her years and growing wiser with every encounter, sizing up and cutting down the sheriff (Garret Dillahunt) who locked up her father in the first place.

It's a hopeless quest from which Ree never relents.

"Ain't you got no men that could do this?" asks Merab (Dale Dickey), the consort of the local crime kingpin that Ree pursues for answers at risk of her own life.

"No, ma'am, I don't," Ree plaintively replies.

The language and action of "Winter's Bone" are simple, the weight and meaning profound. There are no hillbillies, hicks or rubes in this backwoods tale. This is high drama filled with nobility, savagery and everything in between.

Lawrence, who co-stars with Mel Gibson and Jodie Foster in the upcoming comedy "The Beaver," is a quiet force of nature as Ree, and the bond the actress forms with Hawkes is both hopeful and heartbreaking.

Director Granik has a history of capturing breakout performances. Her first film, 2005's "Down to the Bone," did similar duty for Vera Farmiga.

Hawkes, who played the Jewish lawman turned shopkeeper on TV's "Deadwood," exudes ornery meanness as Teardrop, whom the actor also imbues with a sense of honor and duty that is oddly uplifting in a story and surroundings as desolate as this.

Yet hope is at the core of "Winter's Bone," in the way Ree nurtures her siblings, tends her ailing mama, and maintains a sisterly bond with a childhood friend (Lauren Sweetser). As nasty a hand as she's been dealt, Ree has the backbone to take it.

One of the best films to come out of the Sundance Film Festival in the last decade, "Winter's Bone" won the top prize there for U.S. dramas last January, the same award "Precious" earned the year before.

"Precious" went on to great success at the Oscars and other Hollywood honors.

"Winter's Bone" is a nearly flawless film and deserves similar consideration from awards voters - particularly for Lawrence and Hawkes' performances and Granik's great directing achievement.

"Winter's Bone," a Roadside Attractions release, is rated R for some drug material, language and violent content. Running time: 100 minutes. Four stars out of four.

A cynical thought about the DOMA decision

By Rick Garnett

Michael P. calls our attention (here) to a decision by a federal trial-court judge in Massachusetts invalidating the federal Defense of Marriage Act.  According to that judge, "[t]he federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and in doing so, offends the Tenth Amendment." 

"[O]ffends the Tenth Amendment"?  Hmmm.  A number of us who contribute to MOJ teach or know a bit about "Constitutional Law", and I think I can report without fear of contradiction that law professors who believe that the Tenth Amendment has any judicially enforceable substantive content are (very) few and far between.  I also believe it is safe to say the this decision will be cheered by many commentators, journalists, and law professors who do not believe that the Tenth Amendment has any judicially enforceable content -- and who, in fact, have probably derided the few Rehnquist Court decisions that suggested otherwise.

And this observation reminds me of the conversation we had on MOJ a few weeks ago (see Patrick's intervention, for example, here) about whether it is ever appropriate for judges to (in effect) lie in order to achieve policy outcomes they regard as just.  

An MOJ reader kindly calls this to our attention:

By Michael Perry

A “DICTATORSHIP OF RELATIVISM”?

Symposium in Response to Cardinal Ratzinger’s Last Homily

In memory of Clifford Geertz

Contributors:  Gianni Vattimo, Julia Kristeva, Barbara Herrnstein Smith, David Bloor, Christopher Norris, Daniel Boyarin, Jeffrey M. Perl, Kenneth J. Gergen, Richard Shusterman, Jeffrey Stout, Jeffrey F. Hamburger, Mary Baine Campbell, Lorraine Daston, Arnold I. Davidson, John Forrester, Simon Goldhill

Common Knowledge 13:2-3 (2007)

The introduction to the symposium is here.

Thursday, July 8, 2010

Presbyterian Leaders Approve Gay Clergy Policy

By Michael Perry

By THE ASSOCIATED PRESS

Filed at 9:23 p.m. ET

MINNEAPOLIS (AP) -- Presbyterian leaders voted Thursday to allow non-celibate gays in committed relationships to serve as clergy, approving the first of two policy changes that could make their church one of the most gay-friendly major Christian denominations in the U.S.

[Read the rest here.]

MOJ readers in New York State?

By Michael Perry

You may be interested in this narrative concerning gay marriage and the next governor of New York State, Andrew Cuomo:  the famous son of a famously Catholic family:

Doubts About Cuomo’s Support of Gay Rights
By MICHAEL BARBARO 3:51 PM ET

Interviews and a review of Andrew M. Cuomo’s record reveal a fraught relationship with the gay community.

Gay Marriage, States' Rights, and the U.S. Constitution

By Michael Perry

Judge Rules Gay Marriage Ban Unconstitutional

By THE ASSOCIATED PRESS 37 minutes ago

A U.S. judge in Boston has ruled that a federal gay marriage ban is unconstitutional because it interferes with the right of a state to define marriage.

Previous Articles More Articles

Recent Posts

Categories

Monthly Archive