Monday, February 1, 2010
Reflections on Ralph McInerny's work, life, person, and legacy
Some nice reflections -- including one by MOJ-friend John O'Callaghan -- are collected, here, at "The Catholic Thing."
Whom Should a Catholic law school honor?
In my never-ending quest to avoid controversial topics, I've posted a new paper, Whom Should a Catholic Law School Honor?: If Confusion is the Concern, Context Matters. This short essay is my contribution to a forthcoming symposium in the Journal of Catholic Legal Studies. Here is the abstract:
If a Catholic can vote for a pro-choice candidate when proportionate reasons justify that decision, can a Catholic law school honor a pro-choice public figure if there are proportionate reasons to do so? In other words, should the law school’s inquiry focus simply on whether the honoree defies Church teaching on any matter of grave moral importance, or should the law school also consider the message communicated by the honor in light of the broader context in which it would be extended? This short essay suggests that a contextual approach is more consistent with the U.S. Bishops’ instruction on this matter and avoids some of the collateral harm arising from a bright-line prohibition on honoring anyone who defies even a single aspect of Church teaching.
For those looking for a detailed blueprint that provides answers to specific commencement speaker controversies, you should look elsewhere. In this paper, I'm simply trying to articulate: 1) why a Catholic institution should evaluate its decision to honor a person in light of Church teaching, but also 2) why the approach taken by some groups (e.g., the Cardinal Newman Society) is, in my view, short-sighted and often counterproductive. I welcome feedback.
Playing chess with Rick Garnett
I anticipated the move that Rick has made--hey, I'm not stupid--and anticipated too that Rick, who after all has read my book carefully in the course of reviewing it for Commonweal (thanks, Rick), would be the one to make the move. The passage in my book that Rick cites is about cases in which there are First Amendment--political process--values on one side and non-political-process values on the other. But in Citizens United there were political process values on both sides! And, so, the Thayerian presumption stands: There is no reason in such a case for a majority of the Court to act imperially by insisting on its own judgment that the legislation at issue disserves political process values if the competing judgment that the legislation serves political process values is a reasonable one.
Marc DeGirolami's comments, in the thread following Rick's post, are right on target! In particular: Perhaps the Thayerian presumption should stand even in cases in which there are political process values on one side and non-political-process values on the other. But for better or worse, Mark, I'm not there yet ... and in any event don't need to go that far to put Rick in check.
(By the way, it greatly misconceives the constitutional question in Citizens United to say, as the majority did, that the federal legislation penalized individuals for speaking politically. The legislation didn't penalize anyone for speaking politically. Rather, the legislation penalized individuals for paying for their speaking politically with funds out of a corporations's (or union's) general treasury. Compare that with a law that penalizes an individual, or group of individuals, for paying for their speaking politically with funds out of their own pockets.)
Philpott: "The Right to Live"
My friend and colleague Dan Philpott has this nice essay in the Notre Dame Magazine. Noting the press coverage of the March for Life, Dan writes:
The New York Times, ABC, CBS, NBC and NPR said nary a word about the march. Behind all of these journalistic treatments lies a tired and familiar view of the prolife movement as an insular, angry religious enclave that is marching backward against history’s inexorable march towards maximal autonomy and individual rights.
Here are some alternative phrases to describe the marchers. How about “civil rights activists”? Or “human rights protesters”? Or even a “peace movement”? These terms, I venture, portray the march more accurately as a cousin of Vaclav Havel and the Czechoslovak Velvet Revolution of 1989, of Mahatma Gandhi and his nonviolent marches of the 1920s and 1930s and of the American Civil Rights movement. I predict that the pro-life movement, like these other causes, will one day be viewed by a broad consensus of people as a bright segment of what Dr. Martin Luther King called the long moral arc of the universe that bends towards justice.
Skeptics will bristle at these comparisons, but in three essentials the pro-life movement belongs in this great tradition. . . .
Read the whole thing.
Perry v. Perry on Citizens United?
A few days ago, Michael suggested that the Court's Citizens United decision -- which invalidated certain (both over- and under-inclusive) restrictions on political advertising by corporations and, in so doing, overruled the anomalous Austin decision -- was misguided, and inconsistent with the Thayerian arguments for limited judicial review which Michael proposes in his (very useful) recent book, Constitutional Rights, Moral Controversy, and the Supreme Court. (My review of Michael's book will appear soon in Commonweal.).
I share Michael's view that it is regrettable ("arrogant") when judges (and others) employ the "be reasonable; that is, agree with me" tactic. (It's kind of like the "be bi-partisan, and endorse my position" tactic.) It seems to me, though, that Michael's own book sets out a possible defense for the Court's (in my view correct) decision, in Chapter Six ("Thayerian Deference Revisited"). There are some cases, he says, where the argument for Thayerian deference does not apply, that is, cases where closer judicial review "is likely, in the long run, to enhance the capacity of the citizenry either to deliberate about contested political . . . questions or otherwise to participate meaningfully in the political process." These cases include cases involving regulations of the freedoms of "speech, press, and assembly."
So, it seems to me that one can endorse Perry's modified Thayerian approach and still conclude (reasonably!) that the Court was correct in concluding that the restrictions invalidated in Citizens United were, in fact, unjustified efforts to protect incumbents from being challenged by citizens speaking through the corporate form. (Such an application of Michael's theory seems to me at least as consistent with the theory's premises as is Michael's own conclusion that even a Thayerian Court would rule that the Constitution requires extending the benefits of marriage to same-sex unions.)
For some thoughts about the decision by me, and also by my colleague Lloyd Mayer (an expert in taxation, election law, and non-profit organizations), go here.
Comments are (for now!) open.
Martin Marty on Jim Wallis and "Sojourners"
Sightings 2/1/10
Jim Wallis on Values and Morals-- Martin E. Marty
In 1957, young Harvard-bred
historian Timothy Smith, of the Church of the Nazarene, knocked a lot of us
budding ordinary historians – secular, “mainstream,” and whatnot – off our
library stools with his book Revivalism and Social Reform. We had been
trained to look for the roots of American social Christianity in the liberal
Protestant Social Gospel (post-1907) and progressive Catholicism (post-1919).
Smith back-dated such movements by a half-century, to revivals around 1857,
which, he argued, added concern for morality and ethics in the social order to
the private-and-personal moral agenda of older evangelicalism. Having fought
against dueling, profanity, Sunday mails, et cetera, these revivalists found new
ways to address slavery, poverty, and inequality. Imperfect, they did chart a
course.
Smith died in 1997, but historians in his train often remind us of how things were back when evangelicals were evangelical and not Evangelical, as if a quasi-political party. These years their ancient cause – dated from the eighth century before Christ, among the Hebrew prophets – is revived on many fronts. This week we will sight one of them, Jim Wallis’s Sojourners, which we have been reading for two-score years. This is not a blurb for the magazine – Sightings sights, it does not blurb – but it is time we put into print (or online) some notice of the kind of concern it’s shown through the decades. Jim and a colleague dropped by the other for day a chat, in the week when he’d made a repeat visit to The Daily Show with Jon Stewart, and we made up a bit for lost time.
The Martys welcome all kinds of company, even someone like Wallis, whom Christian anti-Communist Crusaders (there are still such) call “pro-Marxist, pro-Communist, even pro-Socialist,” the third of which is a term applied to anyone to the left of Genghis Khan these days. Wallis was on a book tour for his new Rediscovering Values on Wall Street, Main Street, and Your Street: A Moral Compass for the New Economy. This is not a blurb for the book – Sightings sights, it does not blurb – but he gave us a theme for the week, as did a chapter from the book in the February Sojourners. His choice of words like “Values” and “Morals” instead of “Biblical” or “Christian” may enlarge the zone of discourse, but he has not left his evangelicalism behind.
Wallis has always been puzzled by the way some Evangelicals specialize in quoting the six biblical verses which refer or may refer to homosexuality, but consider it out of bounds for believers to notice the six hundred or six thousand that reference Mammon, money, riches-and-poverty. Like the ancient prophets, he names names: not Edom and Moab, Assyria and Babylon, but Goldman Sachs, Bank of America, and Citigroup, which, bailed out with the public’s money, had rewarded themselves at the time he wrote with $8.66 billion (that’s eight thousand six hundred and sixty million) in bonuses, while, Wallis adds, “the average bank teller at Bank of America makes only $10.75 an hour – just over $22,000 a year.
He notices that the financial services industry spent $223 million lobbying Congress to fight any regulations or restrictions. (He wrote that before the recent Supreme Court decision that will allow the banking industry and others to advertise and lobby and influence Congress in amounts that will make that $223 million look like peanuts.) You get the idea. Next week Sightings may be back to appraising our moral framework from a Crypto-Capitalist viewpoint. After all, we’ll now have to do something compensatory lest this column get typed as – gasp! – not “prophetic” but – sh-h-h-h! – populist.
References:
Watch Stewart and Wallis: http://www.hulu.com/watch/122028/the-daily-show-with-jon-stewart-jim-wallis.
Sojourners is online at www.sojo.net.
----------
Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.
Allen's "Future Church" -- Trend Three: Islam
Two weeks ago Amy kicked off our discussion of John Allen's important new book, The Future Church, with Allen's first trend ("A World Church"), and last week Rob continued the conversation by focusing on his second trend: "Evangelical Catholicism." This week I’ll lay out some of the most important insights from Allen’s reflections on Islam (or more appropriately perhaps, Catholic engagement with Islam). I will focus on his strongest contentions, identify the more problematic points, and then comment on the implications for Catholic legal education.
Allen provides a fair bit of background on important demographic trends in the growth of Islam. Although the community is growing, the statistics cited tend to debunk alarmist fears that Islam will somehow displace Christianity anytime soon. That said, Catholics can no longer afford to ignore or marginalize Islam as a world faith, with its nearly two billion adherents.
The next section provides theological background and context for the great diversity within Islam, appropriately rejecting a monolithic or essentialized view of the various communities. This then leads to an important discussion of the sometimes problematic relationship the institutional Catholic Church has had with Muslims, particularly in the last 30 years. After this generally helpful introduction, Allen goes on to list a number of possible consequences for Catholicism.
The most important (and in my opinion likely) consequences he identifies are the expansion of Islamic studies, the role of “Great Commission” Catholics, the increasing importance of religious freedom, and the possibility of greater cooperation between Muslims and Catholics on issues of agreement. Islamic studies has clearly become a high priority for the Vatican as well as Catholic universities, and this is only likely to grow. The impulse of Catholics to convert (which I would argue is a different goal than evangelization) Muslims will likely rise with the influence of Evangelicalism and is likely to increase interreligious tension in predominantly Muslim countries. The Catholic Church is likely to maintain its advocacy for religious freedom in countries like Saudi Arabia and constraints on religious expression in places like France and Turkey. To be fair, only recently has the Catholic Church supported religious freedom, whereas institutional tolerance of Christianity was an ideal embedded in early Islamic texts and practice. The most hopeful insight in the chapter is that Christians and Muslims have similar visions of justice and agree on a number of important policy issues, providing ample opportunities for us to cooperate.
The main challenge I have with the chapter is its depiction of radicalism and the threat of terrorism. With regard to the first, the main movements typically associated with violence (e.g., The Muslim Brotherhood, Wahhabism, the Taliban, and Hizbullah) are briefly described, but there is inadequate analysis of any real connection between theology and violence. Lumping the Iranian Revolution with 9/11 makes little sense, and attributing violence in both cases to Islam ignores social, political, and economic context. With regard to terrorism, I was deeply troubled by the subject lines “A Wild Card: Blowing Up St. Peter’s” and “A North-South Clash of Civilizations.” While these are both in his least likely to occur category, including them in some ways make them foreseeable events—new reasons for us to live in fear.
Perhaps the main implication of this chapter for legal education is the increasing importance of teaching Islamic and Middle Eastern law in American (especially Catholic) law schools. John Makdisi at St. Thomas has done important research on the proliferation of Islamic law courses in American law schools, and Catholic schools have played an important role in this development. Two other implications might be that Catholic law schools, in particular, ought to offer strong international and dispute resolution programs to prepare lawyers who can constructively engage in the work of dialogue and reconciliation.
Sunday, January 31, 2010
"If you're going to San Francisco, be sure to wear some flowers in your hair ..."
[Apologies to Scott McKenzie.]
The University of San Francisco, that is, on February 26, 2010. (In case anyone doesn't know, USF is a Jesuit institution, as is my, and Robert Araujo's, alma mater, Georgetown, and my wife's alma mater, the University of Detroit.)
University of San Franciso Law Review Symposium
The University of San Francisco Law Review's Spring Symposium will feature prominent scholars and practitioners considering the future of same-sex marriage from legal, political, and cultural perspectives. Five plenary panels will examine: empirical data regarding the material consequences of denying or recognizing same-sex marriage; recent federal constitutional challenges to state bans of same-sex marriage; the role of competing social movements in shaping marriage; the emerging focus on questions about parenting children and securing families; and, the intersection of religion and anti-discrimination law in the context of same-sex marriage.
Panels
8:00am Visitor Registration and Continental Breakfast
9:00am Opening Remarks by Dean Jeffrey S. Brand and Commencement of Symposium
Crunching the Numbers: Examining empirical data regarding the material consequences of denying or recognizing same-sex marriage.
Moderated by Prof. Bruce Price, University of San Francisco School of Law
Participants:
- Prof. Patricia Cain, Santa Clara Law
- Prof. Kimberly Richman, University of San Francisco
- Brad Sears, Executive Director, The Charles R. Williams Institute on Sexual Orientation Law and Public Policy, UCLA
- Therese Stewart, Chief Deputy City Attorney, City of San Francisco
Analyzing the Federal Challenge: Discussing the federal constitutional challenge to California's Proposition 8 and similar litigation.
Moderated by Prof. John Adler, University of San Francisco School of Law
Participants:
- Prof. Calvin Massey, University of California, Hastings
- Molly McKay, National Media Director, Marriage Equality USA
- Vincent McCarthy, Senior Counsel, American Center for Law and Justice
- Prof. Julie Nice, University of San Francisco, School of Law
Mobilizing Movements: Exploring the roles of competing social movements in shaping the future of marriage.
Moderated by Prof. Josh Davis, University of San Francisco School of Law
Participants:
- Shauna Fisher, Ph.D. candidate, University of Washington
- Prof. Darren Hutchinson, American University, Washinton College of Law
- Prof. Anna-Maria Marshall, University of Illinois College of Law
- Prof. Jane Schacter, Stanford Law School
Lunch
Protecting Families: Examining the emerging focus on questions about parenting children and securing families.
Moderated by Prof. Maya Manian, University of San Francisco School of Law
Participants:
- Prof. Annette Appell, Washington University School of Law
- Prof. June Carbone, University of Missouri-Kansas City School of Law
- Prof. Courtney Joslin, UC Davis School of Law
- Prof. Melissa Murray, UC Berkeley, School of Law
Exercising Religion: Considering the intersection of religion and anti-discrimination law in the context of same-sex marriage.
Moderated by Prof. Maria Ontiveros, University of San Francisco School of Law
Participants:
- Prof. Alan Brownstein, UC Davis, School of Law
- Prof. Dale Carpenter, University of Minnesota Law School
- Prof. Doug Ne Jaime, Loyola Law School
Saturday, January 30, 2010
What is stare decisis?
Thanks to Michael P. for offering his thoughtful commentary on the recent Supreme Court decision in Citizens United. The decision has recently been critiqued on the ground that the majority did not follow precedent and undermined stare decisis.
Readers and contributors to the Mirror of Justice may recall that I have, in the past, addressed stare decisis in previous discussions, most recently [here].
The subject of stare decisis and what it is—that is, what is its essence, what is its nature, how is it to be explained and understood—is a topic that requires a robust and extended study. Nevertheless, the recent interest in and debate about stare decisis brought about by the decision in Citizens United merits a concise thought today.
I have expressed the view in the past that what is constitutive of stare decisis often reflects the likes or the dislikes of the speaker. For example, if one likes the decision and reasoning in Bowers v. Hardwick, then Lawrence v. Texas ignored stare decisis. If one is attached to Roe v. Wade, we can imagine forthcoming criticism of a decision that abandons Roe to a footnote in judicial decision-making.
Today I would like to suggest that stare decisis cannot be a doctrine supported by personal or political preferences where the will of the majority or the will of the most influential—be it on a court or in the res puclicae—is determinative of the legal principle to which adherence is expected. Stare decisis—if it is to mean anything to the making and enforcing and interpreting of sustainable, righteous, and moral legal norms—must be coherent with the intellect and the right reasoning that promote norms that are sustainable, righteous, and moral. When stare decisis betrays this coherence, the law is what the law-maker wants it to be, not what it should and must be. Without this formula in mind, stare decisis is a mere political tool that eschews the coherence essential to the vitality of laws that distinguish between right and wrong, truth and falsehood and to the rule of law indispensable to the legal enterprise.
Any thoughts on this?
RJA sj
Personal Reflection on Abortion and Equality
MOJ friend, St. Thomas law professor, OU law graduate, and candidate for Congress, Teresa Collett reflects here on the misguided notion that equality for women requires that abortion be legal.
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