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, June 30, 2008

Justice Breyer and the "culture wars"

By Rick Garnett

Orin Kerr has an interesting post, at the Volokh Conspiracy, comparing Justice Breyer's opinions in the school-voucher and gun-control cases.  In the former, remember, Justice Breyer concluded that, even conceding that the relevant legislature could reasonably have thought there were good policy reasons for school choice in Cleveland, the threat of "political divisiveness along religious lines" was too great, and so the voucher program was unconstitutional.

Contrast Breyer's Zelman dissent with his dissent in Heller. Here, the polarity of the culture wars has been reversed. And so has Justice Breyer's approach: Now he reasons that the possibility of a positive social impact of the law makes it constitutional. The political philosopher of Zelman is replaced with a careful and cautious social scientist who runs over pages and pages of statistics and scientific studies in Heller. So long as the legislature had a possible basis for thinking that restricting the constitutional right was a good idea, Breyer explains, the law should be upheld . . .

It's an interesting mirror image, I think. When the culture wars pointed one way, Justice Breyer thought that a "risk" of a "potentially harmful" adverse result was enough to strike the law down. When the culture wars pointed in the other direction, so did the burden of proof: now Justice Breyer must have his "confidence" in the reasonableness of the legislature "convincingly" "destroyed" before he would vote to strike down the law.

  To be clear, I'm not suggesting that Justice Breyer is alone in taking different approaches depending on which side of the culture wars the challenged law happens to fall. Plainly he is not. At the same time, I do think the contrast between these two dissents provides an unusually clear case of the difference.

All the more reason to think (as I've argued) that judges should not decide constitutional cases on the basis of predictions about "divisiveness".

"Methodist Retreat Against Gays"

By Rick Garnett

"Civil Union Dispute Pits Methodist Retreat Against Gays Who Aided in Its Rebirth," announces the headline of this New York Times piece.  The "Ocean Grove Camp Meeting Association" does not want to permit "civil union ceremonies from taking place on its property."  And so, it is being investigated by the state's Division on Civil Rights.  More:

Since 1989, Ocean Grove’s beach, boardwalk and oceanfront road have received tax-exempt status under the New Jersey Department of Environmental Protection’s Green Acres Program, which was created to encourage use of privately owned space for public recreation and conservation. In its original application for the exemption — which saves the group about $500,000 a year and is up for renewal on Sept. 15, according to Bernard Haney, the Neptune Township tax assessor — the association noted that the properties were open to the public and that the pavilion had been used by outside groups.

Some see an inherent conflict between the association seeking tax-exempt status as a public open space with one state agency while suing another state agency for violating its rights as a private religious group.

This story suggests, it seems to me, that it is not unreasonable to be uneasy about, at the very least, the future tax-exempt status of religious institutions that refuse to assimilate same-sex relationships and marriages.

Babies and Europe's future

By Rick Garnett

An interesting read -- "No Babies?" -- in the Times magazine this weekend.  A bit:

There is no shortage of popular explanations to account for the drop in fertility. In Athens, it’s common to blame the city’s infamous air pollution; several years ago a radio commercial promoted air-conditioners as a way to bring back Greek lust and Greek babies. More broadly and significant, social conservatives tie the low birthrate to secularism. After arguing for decades that the West had divorced itself from God and church and embraced a self-interested and ultimately self-destructive lifestyle, abetted above all by modern birth control, they feel statistically vindicated. “Europe is infected by a strange lack of desire for the future,” Pope Benedict proclaimed in 2006. “Children, our future, are perceived as a threat to the present.”

Sigh.  Does the writer really think the Pope is thinking, "I feel statistically vindicated!"  This will likely ring true to many MOJ-ers:

The broad answer to the “Where are all the European babies?” question thus begins to suggest itself. Accompanying the spectacular transformation of modern society since the 1960s — notably the changing role of women, with greater opportunities for education and employment, the advent of modern birth control and a new ability to tailor a lifestyle — has been a tension between forces that, in many places, have not been reconciled. That tension is perfectly apparent, of course. Ask any working mother. But some societies have done a better job than others of reconciling the conflicting forces. In Europe, many countries with greater gender equality have a greater social commitment to day care and other institutional support for working women, which gives those women the possibility of having second or third children.

But then, a twist:

one other factor affecting the higher U.S. birthrate stands out in the minds of many observers. “There’s much less flexibility in the European system,” Haub says. “In Europe, both the society and the job market are more rigid.” There may be little state subsidy for child care in the U.S., and there is certainly nothing like the warm governmental nest that Norway feathers for fledgling families, but the American system seems to make up for it in other ways. As Hans-Peter Kohler of the University of Pennsylvania writes: “In general, women are deterred from having children when the economic cost — in the form of lower lifetime wages — is too high. Compared to other high-income countries, this cost is diminished by an American labor market that allows more flexible work hours and makes it easier to leave and then re-enter the labor force.” An American woman might choose to suspend her career for three or five years to raise a family, expecting to be able to resume working; that happens far less easily in Europe.

So there would seem to be two models for achieving higher fertility: the neosocialist Scandinavian system and the laissez-faire American one. Aassve put it to me this way: “You might say that in order to promote fertility, your society needs to be generous or flexible. The U.S. isn’t very generous, but it is flexible. Italy is not generous in terms of social services and it’s not flexible. There is also a social stigma in countries like Italy, where it is seen as less socially accepted for women with children to work. In the U.S., that is very accepted.”

Interesting.

Churches and Sprawl

By Rick Garnett

Eduardo raises some interesting questions in his post, "Churches and Sprawl."  Among other things, he asks:

Would it make sense for the Church to impose a moratorium on opening new suburban parishes in an effort to avoid encouraging Catholics to move out to places where they are guaranteed to spend a lot of time driving?

As Eduardo himself notes, I suspect that, in the Catholic case, parishes are following people.  And, once Catholics are in the suburbs, it would be kind of, well, un-Catholic to tell them that they have to drive to "their" parishes for the sacraments.  Still, I'm a partisan for cities, and think the Church *does* have a role to play here.  It will not likely surprise any MOJ readers to learn that, in my view, the Church could help reduce sprawl by investing in urban Catholic schools.

The Death Penalty and Deterrence

By Rick Garnett

Check out this op-ed by Cass Sunstein and Justin Wolfers on the death penalty and deterrence.  (We've discussed -- here and here, for example -- Sunstein's claims about these matters before here at MOJ.)  Here's the basic point:

A prominent line of reasoning, endorsed by several justices, holds that if capital punishment fails to deter crime, it serves no useful purpose and hence is cruel and unusual, violating the Eighth Amendment. This reasoning tracks public debate as well. While some favor the death penalty on retributive grounds, many others (including President Bush) argue that the only sound reason for capital punishment is to deter murder.

We concur with Scalia that if a strong deterrent effect could be demonstrated, a plausible argument could be made on behalf of executions. But what if the evidence is inconclusive?

We are not sure how to answer that question. But as executions resume, the debates over the death penalty should not be distorted by a misunderstanding of what the evidence actually shows.

I agree.  And, I think this is advice that those who write on crime and punishment for the Catholic bishops should take to heart.  That is -- as I explain here -- I worry about pastoral teaching on capital punishment that makes too much depend on contestible claims about deterrence.

A Breast Cancer Free Child! At What Cost?

By Michael Scaperlanda

The Sunday Times reports:

A woman has conceived Britain’s first baby guaranteed to be free from hereditary breast cancer.

Doctors screened out from the woman’s embryos an inherited gene that would have left the baby with a greater than 50% chance of developing the cancer.

The woman decided to have her embryos screened because her husband had tested positive for the gene and his sister, mother, grandmother and cousin have all had the cancer.

The couple produced 11 embryos, of which five were found to be free from the gene. Two of these were implanted in the woman’s womb and she is now 14 weeks pregnant.

For the rest of the story...

Human Dignity, the Death Penalty, and Abortion

By Michael Scaperlanda

If I were a member of Louisiana's legislature, I would vote to repeal that state's laws that permit the death penalty for rape of a child. (As an opponent of the death penalty, I would vote to repeal all laws permitting the death penalty).  I would, however, be unhappy with the Supreme Court for taking that decision from the people of Louisiana because I am not persuaded by the reasoning in Kennedy v. Louisiana.  Exploring the reasons for these two positions may be for another day.

Here, I want to mention two sentences in the majority opinion.  Echoing (if memory serves me) the death penalty dissents of Justices Marshall and Brennan, Justice Kennedy writes:  "Evolving standards of decency must embrace and express respect for the dignity of the person, and the punishment of criminals must conform to that rule" (Slip op. at 9) and "It is an established principle that decency, in its essence, presumes respect for the individual and thus moderation or restraint in the application of capital punishment" (Id. at 25).

I pray that the Court uses this same logic in future abortion cases. 

I sometimes feel like I'm in Wonderland with Alice.  In this strange land, state legislatures are prohibited in the name of human dignity from putting those who commit heinous crimes to death.  And, those same legislators are prohibited (in the name of a false notion of dignity?) from protecting the most innocent, weak, and vulnerable human beings. 

"Can Obama Do It for Catholics?"

By Michael Perry

Interesting article in this week's The Tablet, here.

Sunday, June 29, 2008

Human dignity and the lawyer's role

By Rob Vischer

Over at Legal Ethics Forum, San Diego law prof David McGowan has kicked off an interesting and provocative discussion on the meaning of human dignity (or lack thereof) and the role of moral considerations in the attorney-client relationship.

UPDATE: I responded here; I welcome comments.

Saturday, June 28, 2008

"Who'll Keep the Faith-Based Initiative?"

By Thomas Berg

Jim Towey, former head of the White House Office for Faith-Based and Community Initiatives, asks that question about the two presidential candidates in today's Washington Post.  He begins by noting the opposition to the program:

Liberals who measure compassion only by tax dollars spent say it hasn't gone far enough, while zealots about church-state separation say that it goes too far and should be shut down. But this program is transforming lives. And in an election campaign lacking for new ideas, this one is worth saving.

As a defender (in scholarship and in litigation) of the faith-based initiative, I agree with Mr. Towey that it has opened the door for many private organizations doing good work with the needy to cooperate with government without having to give up their religious character.  (If it focuses on faith-based organizations, that's because they were discriminated against in the past and rules need to be adopted against such discrimination.)  But it's a bit irritating to see the paragraph above refer only to "liberals" and separationist "zealots" as dangers to the program.  In fact, we have considerable evidence that there were many opponents within the Bush administration itself -- those concerned above all with cutting social spending and, one may reasonably infer, interested in maintaining the program primarily for its political value -- and that they were successful in limiting its funding.  That evidence comes not only from the program's former deputy director David Kuo, but from its enthusiastic congressional supporters such as Rep. Mark Souder (Rick Santorum also fought for more funding).

In that light, it seems somewhat partisan to list as opponents of the plan only separationists along with certain "liberals" who want it to do more.  But it's good that Mr. Towey ultimately asks McCain as well as Obama whether they''ll really be committed to cooperating with private (including religious) organizations to reduce poverty, especially since McCain has put such an emphasis on restricting discretionary domestic spending.  It's just that he might also ask if either of them will put more resources into that cooperative effort.

Previous Articles More Articles

Recent Posts

Categories

Monthly Archive