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.

Monday, July 14, 2008

Colby on the Federal Marriage Amendment and Originalism

Tom Colby has posted a paper that might be of interest to MoJ readers, The Federal Marriage Amendment and the False Promise of Originalism.  Here's the abstract:

This Article approaches the originalism debate from a new angle - through the lens of the recently defeated Federal Marriage Amendment. There was profound and very public disagreement about the meaning of the FMA - in particular about the effect that it would have had on civil unions. The inescapable conclusion is that there was no original public meaning of the FMA with respect to the civil unions question. This suggests that often the problem with originalism is not just that the original public meaning of centuries-old provisions of the Constitution is hard to find (especially by judges untrained in history). The problem is frequently much more fundamental, and much more fatal; it is that there was no original public meaning to begin with. It is a natural consequence of the constitution-making process that a constitutional provision addressing a deeply controversial subject can only be enacted when it is drafted with highly ambiguous language so that, rather than possessing a single original meaning, it appeals to disparate factions with divergent understandings of its terms. As such, the central premise of originalism - that, in Justice Scalia's words, the Constitution was enacted with a fixed meaning ascertainable through the usual devices familiar to those learned in the law - is often inaccurate. And for that reason, the central promise of originalism - that, by relying on an objective, discoverable, fixed constitutional meaning, originalism can prevent judges from subverting democracy and the rule of law by reading their personal values into the Constitution - is a false one.

Larry Solum and Colby debate the paper's claims here.

"We Shall Not Weary, We Shall Not Rest"

Here is Fr. Richard John Neuhaus's closing address -- "We Shall Not Weary, We Shall Not Rest" -- at the National Right to Life Committee's convention.  A bit:

That is the horizon of hope that, from generation to generation, sustains the great human rights cause of our time and all times—the cause of life. We contend, and we contend relentlessly, for the dignity of the human person, of every human person, created in the image and likeness of God, destined from eternity for eternity—every human person, no matter how weak or how strong, no matter how young or how old, no matter how productive or how burdensome, no matter how welcome or how inconvenient. Nobody is a nobody; nobody is unwanted. All are wanted by God, and therefore to be respected, protected, and cherished by us.

We shall not weary, we shall not rest, until every unborn child is protected in law and welcomed in life. We shall not weary, we shall not rest, until all the elderly who have run life’s course are protected against despair and abandonment, protected by the rule of law and the bonds of love. We shall not weary, we shall not rest, until every young woman is given the help she needs to recognize the problem of pregnancy as the gift of life. We shall not weary, we shall not rest, as we stand guard at the entrance gates and the exit gates of life, and at every step along way of life, bearing witness in word and deed to the dignity of the human person—of every human person.

Against the encroaching shadows of the culture of death, against forces commanding immense power and wealth, against the perverse doctrine that a woman’s dignity depends upon her right to destroy her child, against what St. Paul calls the principalities and powers of the present time, this convention renews our resolve that we shall not weary, we shall not rest, until the culture of life is reflected in the rule of law and lived in the law of love. . . .

. . .  We go from this convention refreshed in our resolve to fight the good fight. We go from this convention trusting in the words of the prophet Isaiah that “they who wait upon the Lord will renew their strength, they will mount up with wings like eagles, they will run and not be weary, they will walk and not be faint.”

The journey has been long, and there are miles and miles to go. But from this convention the word is carried to every neighborhood, every house of worship, every congressional office, every state house, every precinct of this our beloved country—from this convention the word is carried that, until every human being created in the image and likeness of God—no matter how small or how weak, no matter how old or how burdensome—until every human being created in the image and likeness of God is protected in law and cared for in life, we shall not weary, we shall not rest. And, in this the great human rights struggle of our time and all times, we shall overcome.

Sunday, July 13, 2008

Who Wrote the Serenity Prayer?

So now the traditional attribution of Reinhold Niebuhr as author of the Alcoholics Anonymous Serenity Prayer -- "God grant me the serenity to accept the things I cannot change" etc. -- has been questioned, by a Yale Law librarian no less.  But Niebuhr did say many other inspiring things, especially about religion and public life, so it's a good excuse to quote one (from The Irony of American History):

Nothing worth doing is completed in our lifetime; therefore, we are saved by hope.  Nothing true or beautiful or good makes complete sense in any immediate context of history; therefore, we are saved by faith.  Nothing we do, however virtuous, can be accomplished alone; therefore, we are saved by love.  No virtuous act is quite a virtuous from the standpoint of our friend or foe as from our own; therefore, we are saved by the final form of love which is forgiveness.

Are You Sirius?

New York Times

July 13, 2008

For Catholics, an On-Air Mix of Sacred and Silly

By PAUL VITELLO  

Mike from El Paso was on the phone line to “The Catholic Guy,” the afternoon drive-time talk program produced via the unlikely partnership of Sirius Satellite Radio (familiar to most people as “Howard Stern’s network”) and the Roman Catholic Archdiocese of New York.

“I called the other day?” said Mike. “About how much I miss confession?” This would be the Mike who was barred from the sacrament of confession under church law because he married a divorced woman whose first marriage was never annulled.

“Yes, I remember!” bellowed the host, Lino Rulli, the Catholic guy of the show’s title. “Mike the Adulterer! O.K., Mike. Are you ready to play ‘Let’s Make a Catholic Deal’?”

It seems an odd marriage of sensibilities: the rough banter of talk radio as practiced by pioneer shock jocks like Mr. Stern and Don Imus, joined at the neck to an official Catholic broadcast whose underlying mission is herding people back into the fold of a religious orthodoxy.

But the stated mission of this new enterprise known as the Catholic Channel is to offer something more than “the audio equivalent of stained glass and incense,” as Joseph Zwilling, a spokesman for the archdiocese, refers to conventional religious radio.

Since taking to the air 18 months ago — with an understanding that there would be no promotional spots for Mr. Stern’s show on any of its programs — the channel has harnessed Sirius, a subscription-only radio network made possible largely by the immense drawing power of Mr. Stern’s profane and pornography-friendly programming, to help propagate a 2,000-year-old institution that preaches against more or less every bodily impulse Mr. Stern has ever named, demonstrated or otherwise celebrated on his show.

Today, in studios down the hall from Mr. Stern’s in Sirius’s Midtown Manhattan headquarters — where Sirius generates a gigantic menu of radio catering to dozens of niche tastes including sports, gay politics, hip-hop and Martha Stewart — the Catholic Channel, No. 159 on the dial, produces a 24-hour stream of radio that reaches most of North America. The Catholic programming runs the gamut from offerings of the stained-glass kind, like Sunday Mass at St. Patrick’s Cathedral and a weekly interview with Cardinal Edward M. Egan, to the offbeat musings of “The Catholic Guy,” which runs five days a week in the showcase 4-to-7 p.m. slot.

[To read the rest, click here.]

Friday, July 11, 2008

If it’s good for the goose, is it good for the gander?

I begin this post today by stating that I will not be commenting on any candidate for any office in the upcoming election which might imply my prejudice for or against the candidate. But I shall offer some thoughts about organizations that do offer their views, be they pro or con, regarding candidates.

Recently, the Planned Parenthood Action Fund, Inc. endorsed Senator Obama for the presidency. This organization is a § 501 (c) (4) tax exempt organization. It is separately incorporated from the Planned Parenthood Federation of America, Inc. which is a § 501 (c) (3) tax exempt organization. I understand the distinction of these exemptions and what they allow and do not allow organizations to do in the realm of politics. Some might argue that one may not endorse or campaign against a candidate, but the other may because they are distinct organizations. And in one sense, I suppose they are separate juridical entities. But, if fact, are they?

According to a recent federal tax return of the Planned Parenthood Federation of America, Inc., it states that it makes contributions to the non-charitable but otherwise tax exempt Planned Parenthood Action Fund, Inc. In one section of the same tax return, the amounts contributed are listed as $1,396,901.00, but in another part of the same tax return, contributions are listed as being in excess of $2,000,000.00. The tax return further notes that the two organizations have an overlapping board of directors; moreover, if you view their respective websites, you will see that they share a common president, Ms. Cecile Richards, the daughter of the late Texas governor, Ann Richards. Both organizations also have a common address at 433 West 33rd Street in New York City, and they have listed the same general telephone number, which happens to be 212-541-7800.

I think back to the 1980s when the Abortion Rights Mobilization, an affiliated group of abortion advocates, sued the United States Catholic Conference and the National Conference of Catholic Bishops (now both combined in the United States Conference of Catholic Bishops) challenging the tax exempt status of the Roman Catholic Church because it, the Church, allegedly participated in politics to advance its views on abortion. The underlying litigation at one point suggested that the Church improperly expressed views for and against candidates that also violated its tax exempt status.

Ultimately, the Church prevailed in this prolonged and expensive legal challenge.

Taking into consideration the recent developments of the Planned Parenthood Action Fund, Inc.’s endorsement to which I have referred, I wonder if the Planned Parenthood Federation of America would object to the founding of a § 501 (c) (4) political action group with an address at 3211 Fourth Street, NE, Washington, D.C. 20017 and a general phone number of 202-541-3000 that would have a directorate overlapping with that of the United States Conference of Catholic Bishops? But, how could they object since they do the same thing?

Let me be clear, I am not advocating for such a thing nor would I, but, as a teacher of the law, am I not entitled to dabble in a hypothetical that borrows from existing cases?

RJA sj

Thursday, July 10, 2008

A strange Facebook group

I was directed today to a Facebook group called "CST is the best thing that's happened to politics since Thomas Jefferson".  Hmmm.  Can I agree with the first part and remain cool to our limousine-Jacobin third President?  =-)

Russello on Brownson

Gerald Russello has provided a nice short introduction to the (often overlooked) work of American Catholic political theorist Orestes Brownson.

Senator Obama's promise, Planned Parenthood's endorsement

A friend of MOJ suggests that my current highest, best service is to call attention to this here .  Who am I to disagree?  This is only the second time Planned Parenthood's Action Fund has bestirred itself to endorse a candidate for President of the United States.

"It was the room."

At the wonderful religion-and-media blog, Get Religion, there is an interesting discussion of Tim Russert's Catholic faith and how it shaped his journalism, including a recent talk on that topic by NBC anchor Brian Williams and an excerpt of Russert's repeated pushing of Al Gore to answer the question, "When do you believe life begins?"  My favorite quote is from Williams, who said that Russert's faith "was not the elephant in the room.  It was the room."

More of Chaput on faith-based programs and discrimination

From a January 23 column:

...Many non-Catholics already work at Catholic Charities. But the key leadership positions in Catholic Charities obviously do require a practicing and faithful Catholic, and for very good reasons. Catholic Charities is exactly what the name implies: a service to the public offered by the Catholic community as part of the religious mission of the Catholic Church.

Catholic Charities has a long track record of helping people in need from any religious background or none at all. Catholic Charities does not proselytize its clients. That isn’t its purpose. But Catholic Charities has no interest at all in generic do-goodism; on the contrary, it’s an arm of Catholic social ministry. When it can no longer have the freedom it needs to be “Catholic,” it will end its services. This is not idle talk. I am very serious.

*  *  *

Catholic organizations like Catholic Charities are glad to partner with the government and eager to work cooperatively with anyone of good will. But not at the cost of their religious identity. Government certainly has the right and the power to develop its own delivery system for human services. But if groups like Catholic Charities carry part of society’s weight, then it’s only reasonable and just that they be allowed to be truly “Catholic” — or they cannot serve.