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.

Tuesday, January 5, 2010

Laycock on Preserving Religious Freedom for Religious Organizations Receiving Funding

By Thomas Berg

An important question for both religious-freedom law and civil society is whether religious organizations can receive funding to provide social services without having to compromise their religious character in doing so.  The Bush Justice Department issued an opinion concluding that organizations receiving government funding could invoke the Religious Freedom Restoration Act (RFRA) to challenge funding conditions that conflicted with their religious tenets or identity.  Now the Obama DOJ has proposed reversing a set of liberal adovcacy groups have urged that the Obama DOJ reverse that interpretation. In response, in this memorandum letter, religious-liberty expert Doug Laycock, in his typical incisive way, explains why RFRA should be held to protect the organization.

CORRECTION TO ORIGINAL POST: see strikethrough above and the language following it.  Thanks to Stanley Carlson-Thies at the Institutional Religious Freedom Alliance for pointing out my synapse misfire.

Monday, January 4, 2010

Personal vs. social dignity

By Rob Vischer

I'm always curious to see how scholars articulate (or fail to articulate) what "human dignity" means, especially in non-religious contexts, and to figure out what work the concept is doing for them.  Markus Dubber has posted a short essay on dignity in penal law.  Here's an excerpt:

American penality continues to operate as an exercise of the sovereign’s “police power,” which regards the objects of governance as human resources within the state household, rather than as persons defined by their capacity for self-government, or autonomy. Dignity, properly defined, is personal—rather than social—dignity, which is owed persons qua persons. Insofar as autonomy is the fundamental principle of legitimacy of a liberal democratic state, in the United States and elsewhere, a system of penal law is only legitimate if it always also regards its objects as legal subjects, i.e., as persons who possess the capacity for autonomy and, therefore, dignity.

Equating dignity with the capacity for autonomy is hardly unusual (at least since Kant), but I'm more interested in the sharp distinction between "personal dignity" and "social dignity."  If Prof. Dubber is definining "social" as "collective," then I see the need for the distinction, but if "social" is equivalent to "relational," then I'm not so sure.  The more I think about human dignity, the less comfortable I am defining it without reference to human relationships, especially in an area such as criminal law.

Is it "race discrimination" for a Jewish school to employ religious standards in admission?

By Rick Garnett

Apparently so, in the United Kingdom.  MOJ-friend Aidan O'Neill sent in a note, a few weeks back, with this report:

a Jewish school is held to be not permitted to apply Orthodox rabbinical standards as to who is  Jew in its admissions policies.    Application of the requirement that prospective pupils require to have mother born a Jew, or dully converted to Orthodox Judaism, is held to constitute direct race discrimination.

At least one commentator finds the decision extremely troubling.  In this piece ("Our human rights culture has now become a tyranny"), Charles Moore writes:

The court is effectively saying that a religion's way of defining its own membership, practised over 3,500 years, is illegal. This is an acute problem for Jews, who are at great pains to maintain their own rules while respecting the law of the land. It will also be used by anti-Jewish groups, which are growing in strength, to bolster their argument that Judaism is racist and that the state of Israel is the equivalent of apartheid South Africa. So the Race Relations Act, set up to help minorities, ends up punishing them.

I would argue that the judgment goes wider still. It is part of a current idea of equality and of human rights which, in the name of freedom, is beginning to look like tyranny.

When you set out general principles about equal treatment for all, regardless of race, religion, sex, age etc, people will tend to agree with them. It is a liberal principle that all are equal before the law, and a Christian principle that all are equal in the sight of God.

But when you frame endless laws according to these universal principles, you run into difficulties. It may be "discriminatory" for a Jewish/Catholic/Muslim school to prefer to employ Jewish/Catholic/Muslim teachers, but isn't it also reasonable? Isn't it fair and natural that a religious school should be free to prefer to admit children from the relevant faith, in order to maintain the ethos which is so important to its success as a school? By what morality are such things wrong? . . .

"Giving up on the death penalty"

By Rick Garnett

Interesting:

Last October, the American Law Institute, the group that established standards for the death penalty in America, voted to withdraw its support of the practice it helped to define. This decision, according to New York Times columnist Adam Liptak, "represents a tectonic shift in legal theory." In his most recent column, he descirbes it as the single most significant development surrounding the death penalty in the past year.

(HT:  America).  Here's more, from Liptak's column:

A study commissioned by the institute said that decades of experience have proved that the system cannot reconcile the twin goals of individualized decisions about who should be executed and systemic fairness. It added that capital punishment is plagued by racial disparities; is enormously expensive even as many defense lawyers are underpaid and some are incompetent; risks executing innocent people; and is undermined by the politics that come with judicial elections.

Not too long ago, Sen. Feingold proposed not too long ago that the federal death penalty be abandoned.  What happened to this effort?  Does anyone know?

Something is rotten in . . . the Netherlands

By Rick Garnett

This is disturbing:

The number of registered cases of euthanasia rose by 200 to some 2,500 in 2009, according to new figures from the official monitoring body, quoted in the Telegraaf.

It is not known how many cases of mercy killing there actually are in the Netherlands, but in 2007 experts said around 80% of instances are registered with the monitoring body.

There were also six registered cases of euthansia on elderly patients with senile dementia, all of whom were in the early stages and able to make their wishes known, the monitoring commission chairman Jan Suyver told tv programme Nova.

Euthanasia for cases of dementia has been officially recorded since 2003. In total, 22 cases have been registered and approved by the commission.

(HT:  Kathryn Lopez)

St. Elizabeth Ann Seton

By Rick Garnett

As our own Susan Stabile reminds us, at her other (wonderful) blog, today is the Feast of St. Elizabeth Ann Seton, my daughter Libby's patron and a saint whom all of us who care about Catholic schools (as all of us should) should call upon often.  Susan writes: 

Today the Catholic Church celebrates the memorial of Saint Elizabeth Ann Seton, the first US-born canonized saint in the Catholic Church. Mother Seton, as she was called, was one of the women I remember learning about in my Catholic grade school (although she had not yet then been canonized).

Elizabeth was born into a prominent Episcopal family in New York City and married the son of a wealthy New York mercantile family with international connections. As a young society matron, she enjoyed a life that included loving service to her family (she and her husband had five children) and care for the poor. (She and her sister-in-law became known as the “Protestant Sisters of Charity.”)

Near the end of the eighteenth century, political and economic turmoil took a severe toll on Elizabeth’s husband’s business and on his health and he became increasingly debilitated by tuberculosis. Hoping to improve his health, Elizabeth and her husband traveled to Italy. However, on their arrival, they were placed in quarantine and her husband died soon thereafter, leaving Elizabeth, then 29 years old, a widow with five children.

While waiting to return to the United States, Elizabeth spent several months with a Catholic family who had been business associates of her late husband. She was affected deeply by her experience of the family’s Catholic piety and began learning more about the faith. She returned to New York in June 1804 and a year later made converted to Catholicism, a choice that resulted in financial struggle and social discrimination. After receiving her First Communion as a Catholic, she proclaimed, “At last God is mine and I am His!…I have received Him!”

Elizabeth opened a school in New York City to support her children. Eventually, the school’s good reputation resulted in an invitation to open a school for girls in Baltimore. In June, 1808 she moved with her family to Baltimore to open the school. Ultimately, Catholic women from along the east coast came to join her work, leading to the establishment of the Sisters of Charity of Saint Joseph. Elizabeth became the first superior of the congregation and served in that capacity until her death.

Widow, convert, single mother, educator and religious leader. Today we remember Elizabeth Ann Seton.

"Freedom for Faith, Freedom for All"

By Rick Garnett

Here is my First Things review of David Novak's recent book, In Defense of Religious Liberty.  A bit:

[T]o mount a serious defense of religious liberty, one must understand what that liberty is and why it is worth protecting. But reaching such an understanding has proved, for more than a few contemporary scholars, harder than it sounds. One senses in current academic conversations a desire, perhaps just a vestigial one, to protect religious liberty in and through law, but also a reluctance or inability to explain why we should. One of Novak’s important and timely tasks is to do just that. . . .

Novak’s focus, in his Defense, is on . . . the “freedom of a religious community to bring its moral wisdom to the world”—to “sing the Lord’s song on strange ground.” It is a freedom that is “exercised for the world, even though many in the world may resist it.” So often, discussions and debates about law, religion, and policy are animated by a concern about keeping religion in its place and cataloging the circumstances in which religion is to be permitted to make its claims and present its vision. Always lurking, it is thought, is the danger that religion will be “imposed” on the civic, the political, or the secular. Novak’s case, though, is again consonant with John Paul II’s: “The Church proposes; she imposes nothing.”

“Make no mistake,” Novak warns, “religious liberty is being seriously threatened today.” Religious liberty, “the claim that a historically continuous ethical community makes upon a secular polity,” is vulnerable and this vulnerability is easy to miss because we so often think of religious liberty exclusively in terms of privacy and individual exemptions. We imagine that, so long as we are permitted to be “personally spiritual,” liberty is alive and well. But as Novak insists, “Becket was not martyred because he was ‘spiritual.’” Religion makes claims, and religious liberty necessarily includes the liberty to make them. . . .

The Chronicle on Fr. Jenkins and Notre Dame

By Rick Garnett

The Chronicle of Higher Education has (what I thought was) a positive and balanced portrait, "The Priest President," of Fr. John Jenkins and his work as the President of the University of Notre Dame.  The piece identifies me as a "vocal critic" (I would have preferred "friendly critic") of the decision to honor President Obama last Spring but also quotes me as noting that Fr. Jenkins carries a "burden", as President, precisely because Notre Dame "matters."  I was, all in all, impressed by the respectful way the piece presented Notre Dame's ongoing efforts to be excellent through, and in, its vocation to be an authentically Catholic university.  Check it out.

A New Years Wish Revoked?

By Robert George

I was surprised to open MoJ and find Steve Shiffrin's December 31 post.

The day before, in a post entitled "My New Years Wish," Steve asked for the thread concerning the dispute arising out of Michael P.'s Christmas Eve post to end.  Earlier that day, Michael had stated that it was time to move on and I expressed my agreement.  Michael and I both expressed the view that what had been said on the competing sides was there in black and white for readers to judge for themselves.  Michael posted on the issue one more time, but I remained silent, thus giving him the last word between us.

So I'm now puzzled as to why Steve, after expressly and publicly calling for the thread to end, would (after it ended) post on the matter again, and do so in a way that all but literally invites Michael's critics to respond, thus reigniting the controversy.  If Steve wants to discuss the role of disgust or repugnance in moral psychology, that's fine.  But his post does more than that.  First, it invites a comment from Michael S. or me that would, no doubt, provoke a response from Michael P. or someone else, and on and on.  It then rehearses the claim (originally advanced in an effort to blunt my criticisms of Michael's Christmas Eve post) that I have made "personal attacks" on Michael and on Cathleen Kaveny.

It was, readers will recall, Michael, not me, who introduced the question of the comparative merits of the work of Professors Kaveny and Porter, on the one side, and Grisez and Finnis on the other.  Now, there was certainly nothing out of line about Michael expressing his view of the comparative merits of these scholars.  Although I strongly disagreed with his assessment, I urged readers to rely on neither Michael's opinion, nor my own.  My advice to people who wondered which writers were more faithful to the tradition running from Aristotle through Aquinas was to read some work by Porter, Kaveny, Grisez, and Finnis, and judge for themselves which writers are superior in analytical rigor, logical precision, interpretative soundness, and depth of insight.  I continue to believe that advice to be sound  I don't see how anyone could quarrel with the criteria for assessment I set out in response to Michael''s claim for the superiority of the work of the writers he prefers.

Readers who are familiar with my article "Shameless Acts Revisited: Some Questions for Professor Nussbaum" Academic Questions, 9 (1995), pp. 24-42 will understand why I asked for confirmation from Michael that he was relying on Martha Nussbaum's authority.

And with that, I (at least) will move on.

Forgetting the mission

By Rob Vischer

Peggy Noonan looks back at the failures of the past decade as examples of institutions forgetting their missions, foremost among these the Catholic Church:

The Catholic Church, as great and constructive an institution as ever existed in our country, educating the children of immigrants and healing the weak in hospitals, also acted as if it had forgotten the mission. Their mission was to be Christ's church in the world, to stand for the weak. Many fulfilled it, and still do, but the Boston Globe in 2003 revealed the extent to which church leaders allowed the abuse of the weak and needy, and then covered it up.

It was a decades-long story; it only became famous in the '00s. But it was in its way the most harmful forgetting of a mission of all, for it is the church that has historically given a first home to America's immigrants, and made them Americans. Its reputation, its high standing, mattered to our country. Its loss of reputation damaged it. And it happened in part because priests and bishops forgot they were servants of a great institution, and came to think the great church existed to meet their needs.

I wonder whether a similar indictment can be leveled against American law schools, including Catholic law schools.  Has the modern law professor shown a tendency to think that the law school exists to meet his or her needs?  Have we let the reflected glory of the US News rankings become our raison d'etre, overlooking debt-laden students and minimizing the role we should be playing in their personal and professional formation?

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