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.

Sunday, August 9, 2009

The Story Behind the Lemon Case

For those interested in the background of perhaps the most important Establishment Clause case ever, I've posted on SSRN this draft chapter, "Lemon v. Kurtzman: The Parochial-School Crisis and the Establishment Clause."  It's from a forthcoming book, edited by Leslie Griffin, called Law and Religion Cases in Context, an entry in Aspen Publisher's new series of stories about famous cases (corresponding to Foundation's "Law Stories" series that many of you know).  The abstract:

This chapter . . . traces the background and implications of Lemon v. Kurtzman (1971), the case that is famous for its 3-part Establishment Clause test and that also inaugurated a series of decisions in the 1970s and early 1980s striking down state efforts to assist parochial schools and the children attending them. In addition to summarizing the arguments, holding, and general implications of Lemon, the chapter draws attention to background and nuances: the parochial-school financial crisis that triggered these laws, the vigorous but unsuccessful attempt of the NAACP and other plaintiffs to challenge the laws for allegedly promoting white flight from urban neighborhoods, and factors (including changes in religious and racial demographics) that contributed first to the rise of Lemon's no-aid approach and then to its decline in recent decisions such as the Cleveland voucher case.

The overall volume should be very good, with contributions from, among other lawprofs, Michael McConnell, Marci Hamilton, Sam Levine (Pepperdine), and Marie Failinger (Hamline).

Saturday, August 8, 2009

In what sense of "Catholic" am I a Catholic?

In many senses.  This is (but) one:

When I read a story such as this, I find myself saying "Hail Mary, full of grace, ..." instantaneously, without forethought.

Sotomayor Sworn In as Supreme Court Justice

Jim Young/Reuters

Newly sworn in Supreme Court Justice Sonia Sotomayor is congratulated by Chief Justice John Roberts.

Friday, August 7, 2009

This looks interesting ...

[And notice the contributions by MOJers Brennan & Berg.]

Church Autonomy Conference. Federalist Society Conference: "the things that are not Caesar's: Religious Organizations as a Check on the Authoritarian Pretentions of the State". 7 Geo. J.L. & Pub. Pol'y 29-278 (2009).

Brennan, Patrick McKinley. Differentiating church and state (without losing the church). 7 Geo. J.L. & Pub. Pol'y 29-49 (2009).

Esbeck, Carl H. Protestant dissent and the Virginia disestablishment, 1776-1786. 7 Geo. J.L. & Pub. Pol'y 51-103 (2009).

Wolterstorff, Nicholas. Abraham Kuyper on the limited authority of church and state. 7 Geo. J.L. & Pub. Pol'y 105-117 (2009)

Lupu, Ira C. and Robert W. Tuttle. Courts, clergy, and congregations: disputes between religious institutions and their leaders. 7 Geo. J.L. & Pub. Pol'y 119-163 (2009).

Berg, Thomas C. Religious organizational freedom and conditions on government benefits. 7 Geo. J.L. & Pub. Pol'y 165-215 (2009).

Moreland, Michael P. Institutional conscience and moral dilemmas: why "freedom of conscience" is bad for "church autonomy". 7 Geo. J.L. & Pub. Pol'y 217-235 (2009).

Mansfield, John H. A tale of two organists: suits against churches for employment discrimination and sexual abuse by ministers. 7 Geo. J.L. & Pub. Pol'y 237-251 (2009).

Laycock, Douglas. Church autonomy revisited. 7 Geo. J.L. & Pub. Pol'y 253-278 (2009).

Wise Latinas Rule! I'm a Wise Latina ... y que?

Check it out ... here!

Climate Change, Health Care, and Agricultural Policy

Assuming Michael Pollan's facts and assumptions are correct in The Omnivore's Dilemma, I am beginning to see a big gaping hole in the President's domestic agenda.  He wants to deal with climate change (environmental issues) and health care, but it seems that signifcant parts of both problems inhere in the government's long standing agricultural policy.

In The Omnivore's Dilemma, Michael Pollan states that our government has for decades been subsidizing a segment of corporate America by incentivizing farmers to produce more corn than the market will bear, keeping the market price of corn below the cost of production.  Several problems arise from this:

  1. Monoculture, which damages rich farm soil through erosion and lack of natural nutrients that come with crop rotation.
  2. Increase need for petroleum because the high yeilds in a monoculture farm environment are only possible when moving from the sun as major energy source for plants to a petroleum based fertilizer. (The sun is still there of course)
  3. Land and water pollution caused by the fertilizer.
  4. Cheap corn goes into hundreds of unhealthy processed foods, leading to greater health problems.
  5. Cheap corn is fed to cattle in vast feed lots,
    1. cheap corn leads to cheap beef, which means we eat more of it
    2. cows literally don't have the stomach for corn leading to health risks for cows
    3. health risks for cows increase because of the disease infested urbanization of cow living
    4. unhealthy cows present all sorts of health risks to human beings.  For example, cows are giving anti-biotics to reduce health risks, which in turn leads to new anti-biotoc strains of bacteria.

I could go on, but you get the picture.  Assuming Pollan is correct, wouldn't it make sense to attempt to tackle agricultural policy before these other items on the domestic agenda.  Government could save money by ending its indirect subsidies to corporate food giants.  This in turn might change the way we farm, returning farming to a more natural cycle, helping the environment and easing our dependence on foreign oil along the way.  With these changes maybe our food will be healthier and we will be healthier.  To the extent that food is more expensive, the government could redirect its farm subsidies into food stamps or other programs to help those who cannot afford the healthier food.  And, to the extent there are health care savings due to healthier eating, the cost savings could be put into health care for the needy.

Since I don't know anything about agricultural policy, health care policy, and environmental policy, I could be completely wrong about all of this.  But, if I'm not totally off base, doesn't this merit a look?  And, hey, its Friday afternoon during the dog days of summer...
 


Corn Fertility

I am just now getting around to reading Michael Pollan's book, The Omnivore's Dilemma.  At one point in the book, Pollan  discusses the growth in yields on a typical farm in Iowa from 20 bushels of corn an acre in 1920 to over 180 bushels an acre today.  He says:

On the day in the 1950s that George Naylor's father spread his first load of ammonium nitrate fertilizer, the ecology of his farm underwent a quiet revolution.  What had been a local, sun-driven cycle of fertility, in which legumes fed the corn which fed the livestock which in turn (with their manure) fed the corn, was now broken.  Now he could plant corn every year and on as much of his acreage as he chose, since he had no need for the legumes or the animal manure.  He could by fertility in a bag, fertility that had originally been produced a billion years ago halfway around the world.  Liberated from the old biologocial constraints, the farm could now be managed on industrial principles.

pp. 44-45 (emphasis added).  As I read these words and his later phrase "synthetic fertility," I couldn't help but wonder whether their are connections - ecological, cultural, psychological, etc. - between our approach to plant fertility (ending the fertility cycle for legumes in Iowa and buying fertility in a bag for corn) and human fertility?  "Liberated from old biological constraints..." 

Any thoughts?

Catholicism and Human Rights

Professor Samuel Levine, of Pepperdine Law, sends this page and links our way:

<p>Vincentian Center: 1999 Presentations</p>
 

The Vincentian Chair of Social Justice Presentations is published annually by the Vincentian Center for Church and Society at St. John’s University. Each volume is a collection of research reports, opinion papers, lectures and selected essays from various academic fields and interdisciplinary discussion on issues of poverty and justice.

©2000. Vincentian Center for Church and Society at St. John’s University, 8000 Utopia Parkway, Jamaica, NY 11439. All rights reserved. For permission to reprint, contact the Vincentian Center for Church and Society, (718) 990-1612. (ISSN 1097-2560)

The current contents are indexed in the Catholic Periodical and Literature Index. The views expressed in the articles are to be attributed to their authors and not to the Vincentian Chair of Social Justice, the editors, or St. John’s University.

The Vincentian Center for Church and Society
copyright 2000-2003 - all rights reserved

Basic Health Care, The Human Right to

Notre Dame's Cathy Kaveny writes:

"I noticed that you and Rick were engaged with the question whether health care is a human right (in my view, it is) and the problem of how to implement it  with legal means in a society where resources and knowledge might be limited.  I engage this general question in my recent article Imagination, Virtue, and Human Rights:  Lessons from Australian and U.S. Law, 70 Theological Studies 109 (2009).  In my view, it's necessary to recognize health care as a positive right --for pedagogical reasons-- but the pragmatic questions Rick raises come in in specifying the right in a particular social and economic context."

MOJ readers following this to-and-fro may want to check this out:

In the newly published (by Oxford University Press), five-volume Encyclopedia of Human Rights, in Volume 2, the entry "Right to Health and Health Care" by Brigit Toebes (at pp. 365-376).  The entry includes a useful bibliography.

"U.S. women religious leadership, at the crossroads"

By Ken Briggs
NCR, 8/7/09

As I see it, the Leadership Conference of Women Religious, which gathers next week in New Orleans, faces a bleak choice: either die or survive at a great cost to its integrity and dignity.

The Vatican has thrown down the gauntlet. The choice is stark: acquiesce to a “doctrinal assessment” of leadership conference views -- on women’s ordination, the primacy of Roman Catholicism and homosexuality – or reject the probe as an unwarranted fishing expedition bent on putting the organization out of business.

What we have here, I believe, could be the last major struggle over a way of understanding what it means to be Catholic. Sisters have retained more of Vatican II ethos and spirit than any group in the church, in the face of formidable opposition to large segments of it by the last two popes.

If Rome succeeds in wrecking this last organizational remnant of Vatican II, then all of American Catholicism suffers a great loss. Yet the will to resist appears to have dissipated. Without active protest, LCWR, as it’s been known, will exist no more. Voices of appeasement who counsel trust in Vatican intentions sound sadly out of touch with Rome’s hard line aims.

Meanwhile, the two investigations of sisters are in full stride, couched in terms of routine check-ups. One examines the “quality of life” in sisters’ congregations. It covers the chief components of governance, work and spirituality, the areas that became the touchstones of renewal. The other is aimed squarely at the leadership conference, long regarded as a thorn in the Vatican’s hide. Having failed for decades to break the Conference of its Vatican II identity, the latest offensive appears determined to finish the job.

Renewal was the word that encapsulated that search for the new life mandated by the Council. It is a word rarely spoken any more because its practice belongs largely to the past. But leadership conference has continued to uphold many of its values.

The superiors of the congregations have maintained near total silence in response to the investigations. Some believe the Vatican’s assurances that they have nothing to worry about. And because they believe they’ve done nothing wrong, they don’t appear worried.

If they don’t look squarely at what’s happening and speak out against it, however, I think the struggle to preserve even a semblance of the LCWR’s vibrant past will be lost. This dynamic conference, born in controversy because the Vatican objected strenuously to the term “leadership” in its name change, could forfeit its legacy of defending not only sisters but a wider cohort of Catholic women and American Catholicism’s stake in renewal.

[Read the rest, here.]