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 2, 2010

A thought about the Declaration, the Quebec Act, the Church, and Religious Freedom

By Rick Garnett

This weekend, we in the United States of America celebrate our Declaration -- and, in time, our achievement -- of Independence.  We should hope that more than a few of our fellow citizens will mark Independence Day by actually reading the Declaration.  Stirring stuff.  (Peggy Noonan has an interesting reflection on some words of Jefferson's that were cut out, here.)

Most people, if they are familiar with Declaration at all, know about the "course of human events" and "truths to be self evident" parts.  I encourage my first-year law students, though, to read through the bill of particulars against the King, the facts about his "injuries and usurpations" that the Declaration "submit[s] to a candid world."  Among these, interestingly, is a complaint about the Quebec Act of 1774, which (among other things) admitted Roman Catholics to full citizenship in Quebec.  This Act outraged the American colonists, as Steve Waldman reports:

Alexander Hamilton decried the Quebec Act as a diabolical threat. "Does not your blood run cold to think that an English Parliament should pass an Act for the establishment of arbitrary power and Popery in such an extensive country?…Your loves, your property, your religion are all at stake." He warned that the Canadian tolerance in Quebec would draw, like a magnet, Catholics from throughout Europe who would eventually destroy America.

Sam Adams told a group of Mohawk Indians that the law "to establish the religion of the Pope in Canada" would mean that "some of your children may be induced instead of worshipping the only true God, to pay his dues to images made with their own hands." The silversmith and engraver Paul Revere created a cartoon for the Royal American Magazine called "The Mitred Minuet." It depicted four contented-looking mitred Anglican Bishops, dancing a minuet around a copy of the Quebec Act to show their "approbation and countenance of the Roman religion." Standing nearby are the authors of the Quebec Act, while a Devil with bat ears and spiky wings hovers behind them, whispering instructions. . . .

So, anti-Catholicism fanned flames of a rebellion that would, in time, yield an approach to religious-freedom-under-law that, some say, inspired the content and foundations of the Catholic Church's Declaration on Religious Freedom.  And so it goes . . . 

Leslie Green and the will to power

By Michael Scaperlanda

Thank you Michael P. for pointing us to Leslie Green's disagreement with Pope Benedict's assertion that we are in danger of "a dictatorship of relativism."  My quick read of Green seems to confirm Benedict's thesis.  Is it fair to say that Green disagrees with Benedict for two reasons?  One, there is danger from non-relativist countries, particularly Muslim countries.  And, two, the west isn't relatavist because it imposes democratically arrived at moral norms.

Green's world seems to center on will to power.  In some nations God's will as interpreted by the powerful shape the moral norms of the country.  Aware of  this, Benedict asks, does reason have a place alongside faith.  In other nation's (the West), Green asserts that the will of a majority [or, in the case of the U.S., often the majority of the Committee of Nine] establish the moral norms.  Does reason supply any criteria?  Can the majority ever reach an immoral conclusion?   If not, whover has the power to create or manipulate a majority of the populace (or a majority of the Committee of Nine), sets the moral standard.  That sounds pretty relativistic to me.  What am I missing Michael P.?

Inazu, Smith, and Cochran on the CLS case

By Rick Garnett

John Inazu (Duke) has a worth-reading blog post on the CLS case here (at "The Faculty Lounge") and an op-ed on the case ("Siding with Sameness"), in the Raleigh News & Observer, here.  He says, among other things:

Martinez at its core involved a clash between equality and diversity, and in this case, diversity should have prevailed.  As I note in my op-ed, Justice Alito’s warning that Monday’s decision “is a serious setback for freedom of expression in this country” doesn’t go far enough.  Expression presupposes existence.  And Martinez doesn’t silence the Christian Legal Society at Hastings—it destroys it.

That being said, this is a hard case. . . .

Also (as always) worth reading and thinking about is what Steve Smith (San Diego) has to say about the case, at "Law, Religion & Ethics":

To be sure, a law school should not be required to admit every type of speaker to its forum. I would think that the school might permissibly deny the benefits of its forum to, say, advocates of genocide, to give just one example. But it is deeply troubling that among the ample spectrum of views and voices that Hastings welcomes, a traditional Christian voice is the one that the school in fact singled out for exclusion.  And the fact that the school attempted to defend its exclusion by concocting a policy that could in principle exclude other “voices” as well does not negate the conclusion that the school is excluding voices from the community of its forum.  It is even more troubling that a majority of Supreme Court Justices see no problem with that exclusion.

Also writing at LRE, Bob Cochran asks:

The Court framed its decision narrowly, but the decision’s principle seems to me to be huge.  The opinion creates risks for any religious group (maybe any group) that takes a position on anything and receives government funding.  The government can water down the position of any group by requiring an “all comers” policy.  Would this allow, for example, a state to require that religious colleges take all comers on its faculty, permitting discrimination based only on “neutral and generally applicable membership requirements unrelated to ‘status or beliefs’”

S.G. Kagan discusses religious freedom

By Rick Garnett

More here.  Any reactions?  Comments open.

Joseph Weiler's submission in the Italian crucifix case

By Rick Garnett

Here is (the eminent) Prof. Joseph Weiler's argument before the European Court of Human Rights in the Italian crucifix case.  Here is a taste:

16. In today’s Europe countries have opened their gates to many new residents and citizens. We owe them all the guarantees of the Convention. We owe the decency and welcome and non discrimination. But the message of tolerance towards the Other should not be translated into a message of intolerance towards one’s own identity, and the legal imperative of the Convention should not extend the justified requirement that the State guarantee negative and positive religious freedom, to the unjustified and startling proposition that the State divest itself of part of its cultural identity simply because the artefacts of such identity may be religious or of religious origin.


17. The position adopted by the Chamber is not an expression of the pluralism manifest by the Convention system, but an expression of the values of the laique State. To extend it to the entire Convention system would represent, with great respect, the Americanization of Europe. Americanization in two respects: First a single and unique rule for everyone, and second, a rigid, American style, separation of Church and State, as if the people of those Members whose State identity is not laique, cannot be trusted to live by the principles of tolerance and pluralism. That again, is not Europe. . . .

Comments are open.



"Contra the NY Times" on the scandal

By Rick Garnett

Michael Sean Winters' response to the Times story -- posted this morning by Michael P. -- on the scandal is worth reading.  Here's the opening:

This morning’s New York Times “expose” regarding then-Cardinal Ratzinger’s role in the Vatican’s response to the clergy sex abuse crisis exposes more than it intended. It exposes the fact that the authors, Laurie Goodstein and David Halbfinger, and their editors, do not understand what they are talking about and, at times, put forward such an unrelentingly tendentious report, it is difficult to attribute it to anything less than animus.

The article put me in mind of Lady Bracknell in Oscar Wilde’s The Importance of Being Earnest. “To lose one parent, Mr Worthing, may be regarded as a misfortune; to lose both looks like carelessness.” One or two mistakes are to be expected. The friend I consult on environmental matters tells me that when she reads the Times on the subject, she assumes they will get it wrong. But a slew of such mistakes raises doubts. Ignorance is a scarcely less heinous crime for a reporter than bias. You be the judge. . . .

Chicago's (Catholic) Mayor Daley

By Rick Garnett

I'm happy to join Michael Perry in lamenting gun violence, though I'm not sure why we should consign to Hell a group that exists to protect what the Supreme Court has told us (and since they've told us, it must be true, right?) is a fundamental individual right.  Michael asks God to bless "Chicago's (Catholic) Mayor Daley" for his resolute support for (probably unconstitutional, in the Court's view) restrictions on gun ownership and, as a fan of Chicago, I am also happy to join Michael in hoping that God blesses Mayor Daley with more wisdom than the (Catholic) mayor has shown in, say, restricting the speech of pro-life activists and counselors:   

Daley is a Catholic, who happens to be pro-choice. But, unlike several of the dissenting aldermen, the mayor said he draws a line between religion and politics.

“My religion is very personal. …Religion does not play a part when I make a decision on behalf of the people of Chicago. It is a decision I have to make as mayor, not as a Catholic. …That is separate for me,” he said.

The amendment to Chicago’s disorderly conduct ordinance was championed by Ald. Vi Daley (43rd) at the behest of Planned Parenthood.

Perhaps God's blessing on Daley will include the grace necessary to stand up to Planned Parenthood, as well as the NRA.

Congrats to John O'Callaghan

By Rick Garnett

My colleague (and MOJ-friend) John O'Callaghan has been appointed to the Pontifical Academy of St. Thomas.  (He is, I gather, one of only 4 American members.) 

Established in 1879 by Pope Leo XIII to promote the study of the thought of St. Thomas and to bring it into engagement with contemporary culture, the Pontifical Academy of St. Thomas has 50 members. O’Callaghan, an associate professor of philosophy at Notre Dame whose scholarship concerns medieval philosophy and Thomistic metaphysics, is one of four academy members from the United States.

“We Thomists don’t study Aquinas merely because we find his thought historically interesting, although it is,” O’Callaghan said. “We study it because we think lasting truth is to be found there. Notre Dame is nearly unique for the resources it devotes to continuing the study of, and promoting the relevance of St. Thomas and medieval philosophy to contemporary philosophy in the English speaking world. So I think this honor acknowledges the importance of philosophy in the Catholic tradition at Notre Dame as much as it honors me.”

Congratulations, John!

Thursday, July 1, 2010

The news concerning the scandal is unrelenting and bad

By Michael Perry

NYT, July 2, 2010

Amid Church Abuse Scandal, an Office That Failed to Act
By LAURIE GOODSTEIN and DAVID M. HALBFINGER

In its long struggle to grapple with sexual abuse, the Vatican often cites as a major turning point the decision in 2001 to give the office led by Cardinal Joseph Ratzinger the authority to cut through a morass of bureaucracy and handle abuse cases directly.

The decision, in an apostolic letter from Pope John Paul II, earned Cardinal Ratzinger, now Pope Benedict XVI, a reputation as the Vatican insider who most clearly recognized the threat the spreading sexual abuse scandals posed to the Roman Catholic Church.

But church documents and interviews with canon lawyers and bishops cast that 2001 decision and the future pope’s track record in a new and less flattering light.

The Vatican took action only after bishops from English-speaking nations became so concerned about resistance from top church officials that the Vatican convened a secret meeting to hear their complaints — an extraordinary example of prelates from across the globe collectively pressing their superiors for reform, and one that had not previously been revealed.

And the policy that resulted from that meeting, in contrast to the way it has been described by the Vatican, was not a sharp break with past practices. It was mainly a belated reaffirmation of longstanding church procedures that at least one bishop attending the meeting argued had been ignored for too long, according to church documents and interviews.

The office led by Cardinal Ratzinger, the Congregation for the Doctrine of the Faith, had actually been given authority over sexual abuse cases nearly 80 years earlier, in 1922, documents show and canon lawyers confirm. But for the two decades he was in charge of that office, the future pope never asserted that authority, failing to act even as the cases undermined the church’s credibility in the United States, Australia, Ireland and elsewhere.

Bishop Geoffrey Robinson, an outspoken auxiliary bishop emeritus from Sydney, Australia, who attended the secret meeting in 2000, said that despite numerous warnings, top Vatican officials, including Benedict, took far longer to wake up to the abuse problems than many local bishops did.

“Why did the Vatican end up so far behind the bishops out on the front line, who with all their faults, did change — they did develop,” he said. “Why was the Vatican so many years behind?”

[The rest of this quite long article is here.]

God bless Chicago's (Catholic) Mayor Daley -- and to Hell with the NRA

By Michael Perry

Here.

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