Mirror of Justice

Friday, June 4, 2010

UCCSB Letter on Discrimination Against Homosexuals

I know I’m a little late to the party on this one. On May 19, the USCCB wrote a letter setting out its reasons for opposing the proposed Employment Nondiscrimination Act, which would prohibit discrimination against homosexuals in employment. The crux of its position appears to be that it is opposed to the law because (1) it might be applied to the Church in ways that interfere with its religious autonomy and (2) it might be used by litigants and courts to promote successful constitutional challenges to prohibitions on same-sex marriage.

I don’t know enough about the proposed legislation to comment on the Bishops’ specific claim that the religious exemptions built into the law are insufficient to protect the Church’s autonomy, but there were a number of troubling features of the letter that may shed some light on the hierarchy’s views on homosexuality and the law.

Discrimination Against Gays and Lesbians

By Steve Shiffrin

Note: this post was prepared for religiousleftlaw.com (thus the focus on the left), but it should be of interest here

Chip Lupu and Robert Tuttle were recently interviewed in the Pew Forum about the class of cases involving discrimination against gays and lesbians on religious grounds. Suppose a pharmacist refuses to serve someone because he is gay and the pharmacist believes same sex relations are sinful. I think most people on the left would think that the pharmacist should not be able to defend the refusal to serve on religious grounds any more than a pharmacist could refuse to serve some of another race on religious grounds. But see Bob Jones case (many on right believe that race discrimination on religious grounds should be constitutionally protected).

But the cases that are arising are not of this sort. They involve, for example, sex counselors who refuse to counsel persons about same sex relations, ministers who refuse to preside over gay weddings, and photographers who refuse to participate in gay weddings because they (wrongly in my view) believe that same sex relations are sinful. These cases seem different than the first class of cases. In the first class of cases, the pharmacist discriminates against persons. In the second class, the counselors, ministers, and photographers do not want to be involved in (what they perceive to be) sinful activity and that refusal has a discriminatory effect. But it is not discrimination against persons. If one of the participants in the wedding wanted to hire the photographer to take pictures of him playing basketball, there is no reason to think the photographer would refuse to take such pictures on religious grounds.

I believe the left is divided on the second class of cases – even the religious left might be divided. I think the religious claim should lose in the first class of cases and win in the second. But I am not sure why the distinction between persons and refusal to participate in perceived sinful activity should make a difference. After all, the pharmacist in the first example may think that serving gays is sinful activity. To be sure, the government interest in fostering respect for individual and supporting human dignity is more deeply offended in the first line of cases. And a contrary ruling in the first line of cases would open the door for widespread evasion of anti-discrimination laws in a way not threatened by the second. But I believe that a part of the pull to reject the religious claim in the first line of cases is that the theology of the claimant in the first line of cases is more odious than that of the claimants in the second line of cases. That, theoretically, should not be on the table in a free exercise inquiry.

In any event, Lupu and Tuttle conclude their very useful survey of the cases with the conclusion that the legal cases involve the second line and that claimants are likely to lose in the courts. Much as I lack admiration for the theology of the claimants, I hope Lupu and Tuttle’s predictions prove to be off the mark.

Thursday, June 3, 2010

Catholics in Political Life Today

By John M. Breen

Last night Loyola University Chicago School of Law was proud to host a panel discussion entitled “Catholics in Political Life Today: Partisan Politics and Religious Identity.” The event, which was co-sponsored by the Lumen Christi Institute, featured Melinda Henneberger, editor-in-chief for the online newspaper Politics Daily and the author of If They Only Listened to Us: What Women Voters Want Politicians to Hear (2007); Ross Douthat, a columnist with the New York Times and the author (with Reihan Salam) of Grand New Party: How Republicans Can Win the Working Class and Save the American Dream (2008); and Mark Stricherz who writes for the blog True/Slant and is the author of Why Democrats Are Blue: Secular Liberalism and the Decline of the People’s Party (2007).

Melinda Henneberger suggested that the place of Catholics in American politics may be to have no one true home, to instead be a “pebble in the shoe” of secular political movements on both the right and the left. She also argued that if the Democratic Party wants to govern effectively, it will need pro-life Democrats now more than ever. This may infuriate pro-choice operatives and party leaders, but it is a necessity that gives rise to greater flexibility within the party on the issue of life. There is, she believes, no similar flexibility in Republican circles that would urge that party to move closer to a Catholic way of thinking on other issues. She concluded with a reflection on her own work as a journalist as kind of vocation and on the need for more Catholics to be involved in politics and the media – people who see themselves first as Catholics rather than as party loyalists. Answering this call will be no simple matter since the lure of partisanship can be incredibly strong as evidenced by the many pro-life Democrats who became pro-choice in order to advance their careers within the party.

Ross Douthat argued that many Catholic voters today are nostalgic for a time when their religious identity and their political beliefs largely overlapped as they did at the time of FDR’s New Deal coalition with its strong emphasis on the importance of the two parent family in raising children and its stress on the dignity of work informed by principles of Catholic social teaching. This overlap between Catholic identity and Democratic politics came apart in the 1960s and 1970s when the party embraced the radical changes in lifestyle and family then taking place. Since then, Ross argued that there have been three attempts at a new synthesis of Catholic identity and politics, two of them liberal in nature and one of them conservative. One liberal response has been to wholly embrace the changes wrought by the cultural upheaval of the ‘60s and ‘70s and to insist that there is no disjunction between the new lifestyles and practices and the Christian faith properly understood. The other more common liberal response, typified by Mario Cuomo’s famous speech at Notre Dame, has been to bracket the cultural issues where Church teaching and Democratic Party orthodoxy do not align. Under this approach abortion and other issues are characterized as matters of personal, religious morality that Catholics should set to one side freeing them to stress the liberal policy preferences that are deemed consonant with church teaching. The first of these liberal attempts at synthesis, Ross said, is untenable while the second is not in any sense distinctively Catholic. It is merely liberal, and so not a true synthesis.

Ross also argued that the conservative attempt at a new Catholic synthesis embraced the Church’s traditional teaching on abortion and other social issues but attempted to make conservatism less libertarian. This synthesis can be seen in the work of Richard John Neuhaus and Deal Hudson. In the Bush administration this synthesis proved to be a colossal failure with a domestic agenda that sputtered along and a foreign policy idealism that led to the debacle of Iraq. As such, Ross said that Catholics should not expect to find a political home that perfectly coincides with their religious beliefs but that there should be a willingness on the part of Catholics in both parties to explore new and innovative ways to apply the principles of Catholic social thought to the problems of the day – ways that are not merely abstractly philosophical but practical and rigorous from a policy standpoint.

Mark Stricherz argued that what is lacking in politics today is any leader in the mold of the late Robert Casey, Sr., a principled champion of the rights of unborn children who was also a staunch supporter of other Democratic policies in keeping with Catholic social teaching. But the time is ripe for Casey’s mantel to be taken up again. Mark noted that many outside the Democratic Party dismiss pro-life Democrats as paper tigers who hold no real power and who provide cover for a party that is wholly committed to the abortion license. On the other hand many inside the Democratic Party hold pro-life Democrats in contempt as single-issue moralists who often get in the way of progressive reform. There are also some, Mark noted, like E.J. Dionne, who pretend that serious pro-life Democrats like Dan Lipinski don’t even exist, and that pro-life efforts to alter the health reform bill were a covert right-wing attempt to derail the bill rather than principled opposition based on Catholic social teaching. Mark further argued that although the prospects of pro-life Democrats being a force on the national level are virtually non-existent, pro-life Democrats could become a strong regional bloc in what he termed “The Big-10 States” of Minnesota, Michigan, Wisconsin, Indiana, Illinois, Iowa, and Pennsylvania. Many Congressional districts in these states have constituencies that are open to Democratic policies but where being pro-life is a definite asset. A real effort is needed to encourage pro-life Catholic candidates of strong character to follow in the footsteps of Bob Casey, Sr.

The panel discussion and the question and answer session that followed made for a stimulating evening of thought-provoking conversation and a list of additional questions well worth pondering. For those unable to attend, I am happy to say that the event was recorded and that I plan to post a video pod-cast of the panel discussion on both Loyola’s website and Lumen Christi’s website in the near future.

More on repentance

By Elizabeth Schiltz

Steve's post on "repentance", and the insightful thoughts of Susan Guthrie to which he linked, came to mind when I read this article about the State of Minnesota's recent resolution apologizing to Minnesotans with mental and developmental disabilities for their past treatment by the State -- forced sterilizations and lobotomies, forced labor, and institutionalization. It took 13 years of advocacy by a disability rights organization to get this apology passed. It finally passed only after a section "devoted to the practices of physicians and medical professionals was removed." And when Governor Pawlenty signed it, he accompanied it with an explanatory letter in which he said, "However, it is important to note this resolution also negatively paints with a very broad brush the actions of State employees who, in most cases, took actions based in good faith and the scientific understanding at that time." That qualification was apparently in response to concerns raised by the leadership of state employee unions that any admission of wrongdoing might open the door to state accountability for this behavior.

This struck me as a rather sad example the way in which fear (of lawsuits) pervades our culture, affecting our willingness to apologize, to ask for forgiveness, in a manner that displays true regret and sincere repentance.

Conscience and the Common Good?

By Patrick McKinley Brennan

I have posted here (and at the right) a comment (delivered at a conference last November at Notre Dame) on our very own Rob Vischer's provocative new book Conscience and the Common Good. The comment will be published in the Journal of Catholic Legal studies (along with comments by Michael Moreland and Nora O'Callaghan). Rob has done us a great favor by advancing the discussion of several crucial concepts, which is not to say that I agree with all Rob has to say in the book. For example, I fear that on Rob's account the Church has sub silentio become something like a Roman variation on the Boy Scouts.

Repentance

By Steve Shiffrin

Susan Guthrie, a writer and Episcopal priest has a wonderful column at Christian Century on repentance. She writes that, "I've noticed an aversion to the language of confession, repentance and reconciliation. Some will seriously argue that this is due to abuses before the Reformation. But I think it's just Sloth: because we know we're forgiven, we don't bother with the process of repentance. And maybe Pride: we're so sure of mercy, we make the leap to thinking we're right all the time. And Greed: we become consumers of mercy without getting any of the benefits of progress.

"These old spiritual practices meant to strengthen our character can help strengthen community. Like any art, spiritual renewal takes practice. As so many wise people say, 'It's easier to act your way into a new way of thinking than to think your way into a new way of acting.'"

Guthrie's column is filled with wise insights about going through the process of repentance. It is worth reading and rereading. The column also got me to thinking about its relationship to Catholicism. Most of the insights are useful to Catholics who avail themselves of the Sacrament of Penance or Reconciliation. But, as the clergy would report, the Sacrament is in "deep crisis." http://www.cathnews.com/article.aspx?aeid=14231. I wonder how much of that crisis stems from anti-clerical premises and how much of it is due to other factors (fear, lack of awareness of sin, etc.).

cross-posted at religiousleftlaw.com

Wednesday, June 2, 2010

Identity politics and who's in bed with Wall Street

By Robert George

I am happy to agree with Brother Michael P. that both major political parties have been too cozy with "Wall Street." (And Wall Street, as I've suggested before, is all-too-willing to snuggle up with big government at the expense of entrepreneurs, small businesses, and taxpayers.) But I'm not impressed by the highly partisan remarks by Paul Krugman that Michael shared with us. What is one to make of my Nobel Prize-winning colleague's accusation that the political right has a pattern of "using identity politics to whip up the base?" As a university professor, surely he knows how identity politics is played in the epicenter of identity politics, and by whom. As for identity politics in national elections, perhaps he should read "Race Man," by his colleague and mine Sean Wilentz (who is on Professor Krugman's end of the political spectrum not mine). It was published in 2008 by the liberal magazine The New Republic. A link: http://www.tnr.com/article/politics/race-man

The money quote (just after a bit of Krugman-style Republican bashing):

It may strike some as ironic that the racializing [of the presidential campaign] should be coming from a black candidate’s campaign and its supporters. But this is an American presidential campaign--and there is a long history of candidates who are willing to inflame the most deadly passions in our national life in order to get elected. Sadly, it is what Barack Obama and his campaign gurus have been doing for months--with the aid of their media helpers on the news and op-ed pages and on cable television, mocked by "SNL" as in the tank for Obama. They promise to continue until they win the nomination, by any means necessary.

On the substance of the question on which Michael introduced Professor Krugman's testimony, here are some pertinent items from mainstream media sources:

http://thehill.com/blogs/on-the-money/banking-financial-institutions/95763-hedge-funds-donate-big-to-democrats

(May, 2010: The world’s top-earning hedge fund managers have bankrolled almost exclusively Democratic campaigns. The top 10 highest-paid hedge fund managers in 2009 have dished out campaign contributions almost exclusively to Democrats. Over their lifetimes, those managers have given almost $33 million in campaign contributions to Democrats. The same managers gave roughly $600,000 to Republicans.)

http://www.buzzle.com/articles/wall-street-political-donations-flowing-to-democrats-coffers.html

(September, 2009. Wall Street has contributed $10.6 million to U.S. Senators this year, with a staggering $1.65 million going to New York Democrat Chuck Schumer alone. That’s good for 15% of the entire sum that the princes of finance have coughed up. $7.7 million of the total contributed has gone to Democrats. Schumer’s take was more than five times the largest contribution to any Republican senator.)

http://www.bloomberg.com/apps/news?pid=20601070&sid=ax3gLHhi7ONs

(April, 2010. Employees in the securities and investment industry made $34.3 million in donations last year, about the same as in 2007, with 62 percent going to Democrats.)

http://articles.latimes.com/2008/mar/21/nation/na-wallstdems21

(March 2008. "Hillary Rodham Clinton and Barack Obama, who are running for president as economic populists, are benefiting handsomely from Wall Street donations, easily surpassing Republican John McCain in campaign contributions from the troubled financial services sector.")

I'll stop. More on request.

More on the Arizona Excommunication

By Susan Stabile

Varioue MOJ'ers have commented on the excommunication of a nun and other members of a Cahtolic hospital ethics committee in connection with a recent abortion. So I thought readers might be interested in this view expressed by Patrick McCormick, professor of Religious Studies at Gonzaga and columnist for the U.S. Catholic. McCormick's conclusion is that "Catholic moral teaching on this question has become unpersuasive (even unintelligible) to a large number of committed and educated Catholics, and excommunicating a nun will not resolve this pastoral problem, only worsen it, for it suggests that the bishop and the Vatican do not have clear, cogent, and persuasive answers to tough moral questions."

Catholic Jurisprudence: The Good, the Bad, and the Future

By Michael Scaperlanda

This spring, I taught a seminar in Catholic jurisprudence. The main text was Recovering Self-Evident Truths: Catholic Perspectives on American Law. The final assignment required students to write a reflection paper on the class. One student - a top student at OU and a self-described agnostic - wrote the following reflection, which shows the importance of our project - especially the questions that we raise. Although his criticisms fall directly on me as book editor and symposium organizer, they provide food for thought for all of us as we continue this work of developing Catholic legal theory today.

Here is a tag paragraph. You can read the full text below (Tom Berg get a "shout out" half way through).

In my opinion, Catholic jurisprudence stands uniquely poised to gain widespread support over the next several years. At a time in our country’s history when our legal/political culture is characterized by increasing polarization and extreme viewpoints, Catholic theory offers a voice of reason that even non-Catholics can appreciate. The trick, of course, is getting people to listen.

"Up in the Air" and the Holy Trinity

By Rick Garnett

To me, the Feast of the Holy Trinity seems a particularly special day for those of us who are interested in Catholic social doctrine. After all, we are reminded on that day that the God in Whose image we are made contains - IS - relationship, communion, love.

As it happened (or maybe providentially), I (finally) saw "Up in the Air" on Sunday. Wow. What a powerful affirmation (via a portrayal of its opposite) of the Holy Trinity (and anthropological) truth about us.