Mirror of Justice

Tuesday, July 6, 2010

The Prudence of Law School Administration Regulation of Law Student Organizations in the Aftermath of the Hastings Case (Part One)

Because it was such a dramatic setback for constitutionally-protected freedom of expression and association on public university campuses, the Christian Legal Society v. Martinez case naturally has been been the focus of attention primarily in terms of the constitutional questions resolved (incompletely) by the Supreme Court. Now as law schools, law faculties, law students, and others digest the opinion, the next and open question will be whether many law schools choose to follow the lead of the Hastings College of Law. Even if they are constitutionally permitted to do so, will (and should) law schools want to adopt a policy for recognized student organizations that requires any and all students to be accepted as full voting members, full fledged participants, and leaders, regardless of attraction to the purpose and support for the message of the group?

Despite the constitutional door opened to an “accept-all-comers” policy (at least in the abstract and with many questions of application remaining), we still may hope that many or most law schools will reject the invitation to intrude so directly into law student association and expression. Even the Supreme Court majority stopped short of endorsing the wisdom of the Hasting accept-all-comers policy, reminding readers that the constitutional “permissibility” of a school policy may not correspond to the “advisability” of that policy.

For reasons of both principle and practical judgment, law schools would be well-advised to freely allow students to come together and establish the structure, membership, and leadership of student organizations according to their own shared interests and values. In today’s post, I address the principled side of the matter, that of protecting freedom of association and expression and of promoting genuine diversity within the law school. In tomorrow’s post, I’ll address the likely administrative headaches and continuing risks of litigation that would attach to those law schools that attempt to apply an “all-comers” rule to student groups in a constitutionally valid manner.

The law school that prides itself on genuine and meaningful diversity and that wishes to fully embrace freedom of expression will turn away from the political or ideological temptation to restrict student organizations according to a uniform formula. Especially in the public law school, law students should be allowed considerable leeway in setting principled standards for membership and leadership, including demanding a commitment to certain beliefs and expectations that define the group.

By extending anti-discrimination rules beyond appropriate bounds of restricting the acts of the law school as an institution and thereby imposing rules of uniformity on student groups, a law school would create a needless conflict between principles of equality and freedom of association and expression. Instead, law school should embrace what “Gays and Lesbians for Individual Liberty” in their amicus brief before the Supreme Court in Christian Legal Society v. Martinez described as “[a] confident pluralism that conduces to civil peace and advances democratic consensus building.” As this amicus explained in that brief, law schools should “permit the marketplace of ideas to work, not pretermit debate through misapplication of nondiscrimination rules in an expressive forum.”

A law school should avoid a rigid policy of enforced formal diversity that in practice crushes true diversity. A sincere commitment to meaningful diversity, not just in appearance but in thought, should lead a law school to permitting those with diverse perspectives to think and act in accordance with their own principles, absent some dangerous disruption to essential order. People of shared values should be able to join together in promoting the principles or identity of the group without being accused of invidious discrimination. In another amicus brief, a coalition of minority religious groups including the American Islamic Congress, the Coalition of African-American Pastors, and the Sikh collation offered this important reminder: “[I]t is fundamentally confused to apply a rule against religious discrimination to a religious association.”

Notre Dame's Fr. Richard McBrien on the Phoenix abortion controversy

By Michael Perry

Here.

Treating scientific statements as apolitical

By Rob Vischer

William Saletan weighs in on Elena Kagan's "reframing" of ACOG's medical analysis of partial birth abortion.

Rise of the Religious Left

By Michael Perry

By Charles M. Blow

Op-Ed, NYT, July 2, 2010

Which political party’s members are most likely to believe that Jesus will definitely return to earth before midcentury? The Republicans, right? Wrong. The Democrats.

This was revealed by a report issued last week by the Pew Research Center for the People and the Press.

On the surface it may seem surprising, but, in fact, it’s quite logical. Blacks and Hispanics, two highly religious groups, are a growing part of the Democratic Party. A June 2009 Gallup report found that blacks and Hispanics constituted 30 percent of the party. Recent polling by Pew puts the number at 37 percent.

According to a Gallup report issued last Friday, church attendance among blacks is exactly the same as among conservatives and among Republicans. Hispanics closely follow. Furthermore, a February Gallup report found that blacks and Hispanics, respectively, were the most likely to say that religion was an important part of their daily lives. In fact, on the Jesus question, nonwhite Democrats were roughly twice as likely as white Democrats to believe that He would return to earth by 2050.

Add to this the fact that, according to the 2009 Gallup report, 20 percent of the Democratic Party is composed of highly religious whites who attend church once a week or more, and you quickly stop second-guessing the Second Coming numbers.

Welcome to the Religious Left, which will continue to grow as the percentage of minorities in the country and in the party grows.

People often ask whether the Republican Party will have to move to the left to remain viable. However, the question rarely asked is whether the growing religiosity on the left will push the Democrats toward the right.

At the moment, that answer is both yes and no. On the one hand, unlike John Kerry before him, Barack Obama made a strong play for the religious vote on his march to the White House. It worked so well that it’s likely to continue, if not intensify, among Democratic candidates. On the other hand, the religious left is not the religious right. The left isn’t as organized or assertive. For the most part, it seems to have made its peace with the mishmash of morality under the Democratic umbrella, rallying instead around some core Democratic tenets: protection of, and equality for, the disenfranchised and providing greater opportunity and assistance for the poor.

The unanswerable questions are whether these highly religious, socially conservative Democrats will remain loyal to a liberal agenda as they become the majority of the party and their financial and social standing improves. Or whether Republicans will finally make headway in recruiting them. The future only knows.

Then again, the world as we know it may not have much of a future if, as these Democrats believe, a deity will soon descend from the sky.

Christianity Going South

By Michael Perry

Sightings

Christianity Going South

-- Martin E. Marty

Sightings authors often comment on religion in the United States rather than "the rest of the world," but through the years have shown regularly how artificial or at least permeable such geographical distinctions are when it comes to religion. Philip Jenkins, Mark Noll, Lamin Sanneh, and others reveal the same, with important books on what Jenkins calls “The Next Christendom” and Noll describes as “The New Shape of World Christianity: How American Experience Reflects Global Faith.” They see the Christian population “going South.” In American slang, “going south” means going down to an inferior position. But in demographic terms, the capital “S” signals going up, as the masses of Christians are doing, while Christian power slides from Europe and North America to Africa, Latin America, and other points South.

It is impossible to quarantine the diseases of the old North’s Christendom so that they do not also spread South. So the worst of the “prosperity Gospel,” with its guarantees of material prosperity to converts, has taken over and predominates in many movements, such as in Kenya. The homophobia that leads nations like Uganda and Kenya to debate whether to condemn homosexuals to death is richly related not only to old tribal taboos, but to new-style Pentecostal churches there. And the conflicts over gay issues in the American Episcopal church are heated up by interventions on the part of Ugandan and Kenyan Anglicans. The Lutheran World Federation, meeting this month, deals with Tanzanian Lutherans (who number one-third as many Lutherans after a few decades as there are Lutherans in the United States after three centuries of presence), as they say they will not accept funds or help (or prayers?) from Lutheran bodies that have different views of homosexuality than they do.

Exuberant therefore as many northern world historians may be over aspects of Christian growth in Africa – and I’ve also paid attention to these in my 2007 The Christian World – they and their compatriots often gasp when close-ups of practices in Africa get global publicity. This week the notices come from Nairobi, in balanced reporting by writers in The Economist who, quite naturally, notice the economic side of Pentecostal growth there. Borrowing “Prosperity Gospel” techniques from American evangelists and then re-exporting them in exaggerated form, African movements manifest bull market versions of competitive “market religion.” These have to be upbeat and aspirational. They help in some reform of business practices there, but “there is also plenty of hucksterism.”

The Economist tells of Bishop Margaret Wanjiru’s “Jesus is Alive Ministries,” where Ms. Wanjiru, a governmental official, draws 100,000 worshippers to meetings, but can see that number rise to 500,000 when a visiting evangelist also comes along. The editors comment that judgment from European and American critics often overlooks the fact that gross versions of “the Protestant Ethic” were imported from the northern churches. They also assess that these Pentecostalisms do better at inspiring personal wealth-seeking than at becoming clear political movements. We’ll wait and see.

Oh, and did we mention that The Economist reminds readers that many of these Pentecostal leaders promote “clear anti-Muslim sentiment” which “scares politicians who want to win the sizable Muslim vote.” Romanticizing New Christendom movements can be as dangerous as is the sneering done by those who look on and do not discern the good effects of much of these churchly endeavors in the lives of ordinary members.

References:

Philip Jenkins, The Next Christendom: The Coming of Global Christianity (Oxford, 1999).

Jenkins also treats the subject in “The Next Christianity,” in The Atlantic Monthly, October 2002: http://www.theatlantic.com/past/docs/issues/2002/10/jenkins.htm.

Martin E. Marty, The Christian World: A Global History (Modern Library, 2007).

Mark Noll, The New Shape of World Christianity (IVP Academic, 2010).

Lamin Sanneh, Disciples of All Nations: Pillars of World Christianity (Oxford, 2008).

“Slain by the Spirit: The rise of Christian fundamentalism in the Horn of Africa,” in The Economist, July 2010: http://www.economist.com/node/16488830?story_id=16488830.

For an earlier treatment of the prosperity gospel in Africa, see Isaac Phiri and Joe Maxwell, “Gospel Riches,” in The Christian Century online, July 2007: http://www.christianitytoday.com/ct/2007/july/12.22.html.

[Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.]

Monday, July 5, 2010

Relativism and all that

By Robert John Araujo, SJ

I have been following with special interest the robust debate these past couple of days on the issue of relativism which my friends have been presenting here at the Mirror of Justice. Two items that help me think through the question of what is relativism and what does it mean to us who inhabit and participate in the res publicae are well presented in the following excerpts.

Upon the death of Pope John Paul II, the then Dean of the College of Cardinals, Joseph Ratzinger, said this in his homily prior to the opening of the papal conclave:

Today, having a clear faith based on the Creed of the Church is often labeled as fundamentalism. Whereas relativism, that is, letting oneself be “tossed here and there, carried about by every wind of doctrine”, seems the only attitude that can cope with modern times. We are building a dictatorship of relativism that does not recognize anything as definitive and whose ultimate goal consists solely of one’s own ego and desires. We, however, have a different goal: the Son of God, the true man. He is the measure of true humanism. An “adult” faith is not a faith that follows the trends of fashion and the latest novelty; a mature adult faith is deeply rooted in friendship with Christ. It is this friendship that opens us up to all that is good and gives us a criterion by which to distinguish the true from the false, and deceit from truth. We must develop this adult faith; we must guide the flock of Christ to this faith. And it is this faith—only faith—that creates unity and is fulfilled in love.

In contrast there is the opinion of Justices O’Connor, Kennedy, and Souter in Planned Parenthood v. Casey wherein they asserted:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. These considerations begin our analysis of the woman’s interest in terminating her pregnancy but cannot end it, for this reason: though the abortion decision may originate within the zone of conscience and belief, it is more than a philosophic exercise. Abortion is a unique act. It is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedure; for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one’s beliefs, for the life or potential life that is aborted. Though abortion is conduct, it does not follow that the State is entitled to proscribe it in all instances. That is because the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law.

It is clear that the choices we have regarding our individual lives and our lives in common in the res publicae are identified by these two passages from distinctive schools of thought. Justices O’Connor, Kennedy, and Souter give us the choice of relativism by proclaiming that the truth of the individual is what matters. But, in contrast, Cardinal Ratzinger gives some of us the better option.

RJA sj

Well, frankly, I don't know what else to say ...

By Michael Perry

I think that my four posts (here, here, here, and here) are responsive to Michael S.'s query (here).

Time to move on, I think.

Dear Michael P.,

By Michael Scaperlanda

Ratzinger argued in the week before he became Pope that "[w]e are building a dictatorship of relativism that does not recognize anything as definitive and whose ultimate goal consists solely of one's own ego and desires." You dismiss this by concluding that his language is "deeply confused" and he is merely engaging in "attractive polemical posturing," but you have yet to tell us if and on what grounds you disagree with Ratzinger's assertion.