Leslie Green, Professor of Philosophy of Law, Balliol College, Oxford University, takes on Benedict XVI, here.
[HT: Leiter Reports: A Philosophy Blog.]
Thursday, July 1, 2010
"A Dictatorship of Relativism"?
A new blog: Distinctly Catholic
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The Limits of Episcopal Authority
COMMONWEAL
June 30, 2010
Web Exclusive
The Limits of AuthorityWhen bishops speak about health-care policy, Catholics should listen, but don't have to agree
The aftershocks of the U.S. Conference of Catholic Bishops’ opposition to certain elements of recent health-care legislation are still being felt in the church months later. Religious communities that supported the legislation are being subjected to harsh and unwarranted punitive measures and the Catholic Health Association, whose support of the legislation was crucial to its passage, is being maligned by right-wing groups like the Catholic News Agency.
Cardinal Francis George of Chicago, current president of the USCCB, contends that the dispute is fundamentally a matter of ecclesiological principle. In a recent interview with John Allen, the cardinal said that the disagreement with the Catholic Health Association over health-care legislation was “about the nature of the church itself” and was therefore a disagreement “that has to concern the bishops.” This was a disagreement about the nature, limits, and proper exercise of episcopal authority. But there is a second, closely related matter at stake—namely, the character of Christian participation in public life. It may be helpful to begin there.
[Read the rest, here.]
CLS v. Martinez and the case for same-sex marriage
I noted earlier that the Martinez Court invoked Lawrence in rejecting Christian Legal Society's attempt to distinguish between status (homosexual orientation) and conduct (a refusal to acknowledge homosexual conduct as immoral). Apparently I'm not the only one who noticed.
Wednesday, June 30, 2010
The Case for Catholic Schools (Part Five): Preserving Urban Neighborhoods
[This is the fifth in a series of six. You may find the previous parts here.]
Most of the reasons offered for choosing Catholic schools naturally focus on the educational benefits for our children and the increased educational opportunities for other families. But Catholic schools bring benefits to the community beyond the immediate educational benefits to their own students. The health and vitality of Catholic schools is strongly correlated with the health and vitality of the neighborhoods in which they are found.
Professors Margaret Brinig and Nicole Garnett have been conducting important empirical studies on the effects of Catholic schools—and, in particular, the negative effects of the closing of Catholic schools—on neighborhoods in Chicago. As they put it, we need to come to a full “understanding of the importance of Catholic schools, not just to their students but also to their communities.”
In the first phase of their study, they found that Catholic elementary schools are “important generators of social capital in urban neighborhoods.” When a Catholic elementary school is closed, “neighborhood social cohesion decreased and disorder increased.” By social cohesion, the study means perceptions by residents of a neighborhood of whether it is close-knit, whether people can be trusted, and shared values. Social and physical disorder is measured by such things as public drinking, using or selling drugs, broken glass and windows, graffiti, and vacant houses or storefront, based upon systematic surveys of people living in Chicago neighborhoods about their perceptions of these problems over time.
A Catholic school closure in a neighborhood was statistically significant and substantially predictive of a loss in social cohesion and an increase in disorder. Professors Brining and Garnet report: “These results lead us to conclude that Catholic schools are important, stabilizing forces in urban neighborhoods: school closures lead to less socially cohesive, more disorderly neighborhoods.” Indeed, even in an era in which parish boundaries often have disappeared and Catholics leave one neighborhood to shop for parishes and Catholic schools in another neighborhood, the presence of a Catholic school in an urban neighborhood continues “to foster neighborhood social capital.”
In a second phase of the study, which remains in draft form and is not yet published, Professors Brinig and Garnett test the “broken windows” syndrome and find that Catholic school closures will lead, in relatively short order, to increased crime in a neighborhood.” Moreover, when a Catholic school closes in an area where other Catholic school closures had previously led to decreases in social cohesion and increases in social and physical disorder, the increase in crime rate after another Catholic school closure will be even more significant.
The richness of the data and the importance of the findings in the Brinig-Garnett studies cannot be fully conveyed by a short blog post. And, as something that I as an empirical researcher myself do admire, Professors Brinig and Garnett are cautious in interpreting and extrapolating from their findings and recognize the need for further study. If anything, their results are probably under-stated. Fortunately, the data speak for themselves.
In sum, the words of former Secretary of Education Margaret Spellings ring true, our Catholic schools are a “national treasure.” And they are a treasure whose keeping has been entrusted, not only but first and foremost, to Catholic parishes and families.
Greg SiskPutatively Unconstitutional Burdens and the 'Hermeneutics of Suspicion'
Much of the disagreement between Steve and Rick on the CLS decision seems to ride on how burdened CLS is by Hastings's 'all comers' policy. Per the 1A doctrine so far as I understand it, that is altogether fitting once it is established that the the all comers policy is viewpoint-neutral -- a question I'm probably not fit at this point to address, though I'll close below with a brief remark on this question.
Back to the burdens, then, Rick suggests that those placed upon CLS by Hastings are weighty. In contrast, Steve's enumeration of those benefits that Hastings confers upon RSOs on the one hand, and on CLS on the other, encourages a conclusion that what ever burdening is occurring here -- specifically, the difference between the two just-named sets -- is de minimis. Perhaps, then, we might do well to zero-in on this 'burdens' question for a bit in our attempt to assess the Court's decision. Who has the burdens here right, Steve or Rick?
Here's a brief observation of my own on this score, FWIW:
So far as I can tell, the one burden that CLS definitely faces post-Hastings is loss of the public university's imprimatur and a trifling amount of funding. Less clear, I gather, is whether it loses more than this in the form of formally or practically denied access to facilities and physical space at the school.
Hastings has apparently avered that such access remains as it was prior to CLS's seeking exemption from the school's non-discrimination policy. Justice Alito in dissent, for his part, makes heavy weather of one incident, in which the school administrator from whom permission to make use of a patio was sought did not reply to the request until after the date that the access was needed. He effectively suggests that the tardiness in question is now Hastings's policy vis a vis CLS. (See first paragraph of page 15 of Slip Opin dissent.) Relatedly, he effectively cites the school's advising its CLS chapter that subsequent requests should be made through a lawyer as another indicator of access-denial.
What Justice Alito does not note, surprisingly, is that the mentioned tardiness and advisement both occurred just after CLS had filed suit against the school. I wonder, then, whether there is any additional, more substantial basis on which Justice Alito grounds the suggestion that CLS lacks access even to physical space and facilities at Hastings. Any thoughts or observations on this score from anyone?
One thing I am struck by in comparing Justice Ginsburg's opinion, Justice Stevens's concurrence, and Justice Alito's dissent is how starkly different the imputed motives are that they infer from the parties' deeds leading up to the litigation. I find it tempting at least provisionally to conjecture that Justice Alito's elision, from the one early incident of tardiness in response to a 2004 request, to a still ongoing policy of denying CLS access to physical facilities, is partly the product of his suspicions about Hastings officials' motives. Justice Alito of course gives expression to these suspicions with abandon in much of his dissent, which is significantly more skeptical of the viewpoint-neutrality of Hastings's all comers policy than are the majority opinion and concurrence. Methinks then that he might be interpreting the 2004 tardiness incident he cites pursuant to a 'hermeneutic of suspicion.' But again, I dunno. Any thoughts?
A final point: I mentioned above that I'm probably not adequately cognizant of the 1A doctrine to opine confidently on the matter of viewpoint-neutrality here. I am tempted to wonder, however, whether disagreement on this score might ultimately be rooted in continuing disagreement over the degree to which sexual orientation is an ineluctible attribute. For I doubt that anyone along the mainstream segment of the 'left/right' continuum would find any objectionable viewpoint-non-neutrality in a public institution's refusal to fund or endorse student organizations requiring that members take an oath not to wed people of ethnicities other than their own. (A 'Bob Jones Society,' as it were, seeking SRO status at a public university.) And my guess is that many who find discrimination on the basis of sexual orientation to be invidious view sexual orientation as bearing more in common with ethnicity than with mores. Again, any thoughts?
The Catholic Church is Finished?
[from The Atlantic, July/August 2010:]
The Catholic Church is Finished
By Ross Douthat
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This was the year when the cover-up of priestly sex abuse, a long-simmering crisis for Catholicism, became something much, much bigger. It was Watergate. It was Waterloo. It was another Reformation. The pope had to apologize. No, the pope had to resign. No, the pope had to be arrested. The Church could be saved only if every bishop stepped down. No, the Church could be saved only if a Third Vatican Council was convened. No, the Church could be saved only if it became as liberal as the Episcopal Church, and quickly. No, nothing could save the Church: it was too corrupt, too compromised, too medieval, too anachronistic. And now, at last, it was finished.
A little historical perspective suggests otherwise. The Church has been horrifyingly corrupt in previous eras and still survived. It’s been led by ecclesiastics who make Bernard Law’s hands look clean, and still survived. It’s faced fiercer enemies than Richard Dawkins (think Nero, or Attila, or Voltaire) and still survived. Time after time, G. K. Chesterton wrote, “the Faith has to all appearance gone to the dogs.” Each time, “it was the dog that died.”
But if the Church isn’t finished, period, it can still be finished for certain people, in certain contexts, in certain times. And so it is in this case: for millions in Europe and America, Catholicism is probably permanently associated with sexual scandal, rather than the gospel of Jesus Christ. And as in many previous dark chapters in the Church’s history, the leaders entrusted with that gospel have nobody to blame but themselves.
The CLS and other student organizations at Hastings
I follow in the footsteps of others on the Martinez case.
Yesterday, I looked at the student web page at Hastings Law and began to look at many of the student organizations, including the environmental, civil liberties, reproductive rights, Jewish, Muslim, feminist, and GLBTQ groups. Some of these organizations have their bylaws posted on-line. While these organizations offer different formulations about the fact that they welcome all students, I wonder what this really means. Since some of these organizations do stand firmly for positions that would not be attractive to students who do not endorse such views, are they, in fact, truly open to all students?
It seems that the CLS was more open--more honest--about what it stands for, and for this it was disciplined by the law school authorities. I suppose the CLS could have taken the approach that other organizations do and say that they welcome all students. But the CLS did not join them for fellowship in this regard; rather, the CLS chose the path of honestly standing for something, i.e.,Christian principles, and being open about what is constitutive of being a member of the organization. And for their commitment to Christian principles and for their honesty, a majority of the Supreme Court has institutionalized in the law the sanction against them and the discrimination that follows.
RJA sj
The significance of the CLS case
I was very disappointed by the decision in the CLS case. (Disclosure: I submitted an amicus brief in support of CLS.) Yes, Hastings' "all comers" policy is not typical (it is not, in my view, actually the policy that Hastings employs, or applied to CLS), and so perhaps the ruling will not result in an academy-wide de-recognition of CLS (and other similar organizations) chapters. I realize (of course) that the relevant doctrine -- "limited public forum", "viewpoint neutrality", "government speech", "unconstitutional conditions", etc. -- is tangled. For me, though, the decision is most disappointing for the embrace, in the majority opinion and in the Kennedy and Stevens concurrences, of the idea that there is something worthy-of-government-procurement -- something that, we are told, weighs in favor of Hastings' policy -- about imposing dissent, or perhaps just dissonance -- on a religious association in order to teach that association's members respect for difference, the importance of dialogue and toleration, etc. I'm a broken record (that is, a bore) on this, I know, but "discrimination" on mission- and ethos-related grounds by a religious association is not, in my view, "discrimination" of the kind that the state has an interest in opposing (or even in just avoiding subsidizing).
Steve S. says that the case is "insignificant" (and I hope he turns out to be right). But, I read the case differently than he does. Let's put aside the (to me, troubling) possibility that the Court majority over-emphasized a mid-litigation "stipulation", and overlooked the fact that it is more accurate to say that the CLS was singled out for special approval than subjected to a neutral and general "all comers" policy. Steve says "[t]he Court did not hold that law schools have a right to discriminate against religious organizations (the question before the Court was not what Hastings had done in the past, but the all-comers policy then before the Court)." The Court *did* hold that Hastings can discriminate against "religious organizations that believe that being a religious organization means, among other things, taking religion seriously regarding membership and leadership."
As Steve notes, much of the disagreement comes down to disagreement about the "reasonableness" of the policy (given that it does, in any case, burden the associational freedom of groups). In this context, the factors that make a policy "reasonable" need to be weightier than "we could imagine someone thinking that factor was a good idea." In my view, the "all comers" policy actually is not reasonable; it advances no weighty interest very far, and those plausible interests it promotes are actually not promoted enough to justify the burdens imposed.
The Insignificance of the Christian Legal Society Case
I may be blind, but I do not see the law declared in the
Christian Legal Society case as a serious blow to freedom of religion or
freedom of speech. The Court affirmed an “all-comers” policy in the case. In
order to secure subsidies from the Hastings Law School, any organization had to
be open to all students. If it was not open to all students, Hastings agreed to
provide access to law school facilities for meetings and access to adequate
means to publicize its meetings.
The Court did not hold that law schools have a right to
discriminate against religious organizations (the question before the Court was
not what Hastings had done in the past, but the all-comers policy then before the
Court). The Court did not rule that Hastings could prohibit selective membership;
it ruled that Hastings need not subsidize organizations with selective
membership. And the Court ruled that an all-comers policy should not be
approved if it were a pretext to discriminate against the Christian Legal
Society. The Court remanded to determine whether the policy was pretextual if
the issue was still procedurally open to the plaintiffs.
Justice Alito disagreed with the Court on its understanding
of the record and Alito decided many factual issues for the first time in the
Supreme Court, issues that had not been reached by the lower courts including
whether the Society really had access to facilities for meetings.
But the legal
differences between Justice Ginsburg, author of the majority opinion, and
Justice Alito were thin. They did disagree whether an “all-comers” policy was
reasonable. Justice Ginsburg argued it was
reasonable because an all-comers policy ensured that students were afforded
leadership, educational, and social opportunities, that Hastings students are
not forced through their student fees to fund a group that would reject them as
members, that it helped Hastings enforce its anti-discrimination policy (and
state anti-discrimination laws) without the necessity of determining the basis
for membership restrictions, and, by bringing together people of diverse
backgrounds, that it encouraged toleration, cooperation, and learning. Any
claim that hostile students would take over an organization was contrary to the
experience of the school and unduly speculative. The reasonableness of the policy
was also indicated by its measured character. The school offered access to
school facilities to conduct meetings and the use of chalkboards and some
bulletin boards, and it could take advantage of electronic media and social
networking sites.
I personally would not support an
all-comers policy (and I think Justice Alito has a good rejoinder on the
reasonableness issue though I do not recall a response to the student fees
argument). I also worry that an all-comers policy could conceal discriminatory
interests (though the fact that it applies to all organizations undercuts that
worry). But I do not think the policy is constitutionally unreasonable.
So long as groups with selective
membership policies have access to school facilities to conduct meetings and
the means to communicate about them, and that is the legal assumption of
Justice Ginsburg’s opinion, I do not think this case is very significant.
cross-posted at religiousleftlaw.com
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