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.

Thursday, March 22, 2007

By Michael Perry

Sightings  3/22/07

[Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.]

Discrimination and Disagreement: A Crucial Distinction
-- Susan Jacoby

"Does discrimination against Catholics still exist in this country today?" was a recent question posed in "On Faith," a blog published by the Washington Post and Newsweek.  The responses were extraordinarily revealing -- not about anti-Catholic discrimination, but about the profound American confusion between discrimination and disagreement.

Many panelists and readers expressed the opinion that not only Catholics but all people of devout faith -- especially Christians -- suffer from discrimination at the hands of "secular elites."

The Rev. William J. Byron, a former president of the Catholic University of America, described the discrimination he had encountered in academia as "typically grounded in skepticism and an unwillingness to accept the compatibility of faith and reason."  Protestant fundamentalists saw discrimination in mockery of biblical literalism. 

Skepticism and mockery, although they certainly cause hurt feelings, do not constitute discrimination.  Discrimination is the systematic denial of political, economic, and human rights solely on the basis of race, sex, or religion.  The Bill of Rights guarantees individual freedom of worship -- not the right to have your sacred beliefs treated as equally sacred by others.

Charles Colson, founder of the Prison Fellowship, made the absurd argument in his "On Faith" column that Christians are victims of discrimination because they "make a truth claim."  Only in America could a convicted felon, who has built a lucrative post-Watergate career on proselytizing for his brand of born-again Christianity, make such an assertion with a straight face.

The question is why so many Americans have the idea that others are bound to respect their "truth claims."  On one level, this bogus notion of tolerance is a byproduct of the genuine and welcome diminution of religious prejudice in the United States since World War II and the Holocaust. 

The flip side of the diminution of bigotry, however, is the stifling pretense that we are bound not only to respect one another as citizens but to respect one another's beliefs.

Novelist Philip Roth, in a speech delivered at Loyola University in 1962, spoke to this point regarding relations between Jews and Christians.  "The fact is that if one is committed to being a Jew," Roth said, "he believes that on the most serious questions pertaining to man's survival -- understanding the past, imagining the future, discovering the relations between God and humanity -- that he is right and the Christians are wrong.  As a believing Jew, he must certainly view the breakdown in this century of moral order and the erosion of spiritual values in terms of the inadequacy of Christianity as a sustaining force for the good.  However, who would care to say such things to his neighbor?"

As an atheist, I believe that I am right and that those who adhere to a fundamentalist version of Protestantism, Catholicism, Judaism, or Islam are wrong.  (I define a fundamentalist as one who believes in the literal truth of a holy book or in the inerrant authority of the book's clerical interpreters.)

I do not respect the belief that the Catholic pope is infallible in matters of faith and morals; that the universe was created in seven days; that homosexuality is sinful; that Mohammad's supposed words are sacred; or that it was a glorious day when Jehovah killed the Egyptian first-born.  Insistence on the "truth claim" of such beliefs is dangerous to American democracy.

Americans have a naïve belief in the power of attaining "common ground" simply by "talking things out."  If only we all just listened to one another, we would see that all beliefs really deserve the utmost respect.  I would be happy that Colson's endeavors are subsidized by my tax dollars and he would be happy to have his tax dollars pay for a teenage pregnancy counseling center run by unapologetic secularists and atheists.   

This vision of harmony and respect for conflicting "truth claims" would require all of us to dilute our core beliefs.  Even Americans who say that they would never vote for an atheist are not practicing discrimination.  If they truly think that morality can only be based on belief in a deity, they could hardly be expected to have confidence in an atheist in the nation's highest office.  It is my task, which I take very seriously, to convince them that atheists do not have horns.

I would never vote for a fundamentalist of any faith -- and that does not constitute discrimination either.  I believe that faith unleavened by a large dose of doubt and secular knowledge makes for bad public policy.  I vote only for candidates rooted in what one of President George W. Bush's advisers once sneeringly called the "reality-based world."

Religious Americans who charge discrimination when confronted by disagreement generally do so because they have no confidence in their ability to persuade others by rational means.

References:
The "On Faith" blog from the Washington Post and Newsweek can be accessed online at: http://newsweek.washingtonpost.com/onfaith/.

Susan Jacoby is the author of Freethinkers: A History of American Secularism.

Wednesday, March 21, 2007

Miscellanea

By Michael Perry

Rob Vischer writes, in his post below,  that "the family ... is ... the community where the human person loves most deeply, sacrifices most nobly, and relates most authentically."  Taken as, in part, an autobiographical statement, we can all envy Rob.  But surely, and sadly, there are many whose autobiographies would lead them to find a greater resonance in something the British psychoanalyst R.D. Laing said about familes, namely, that they are machines for the making of crazy people.

In any event, for the theologically inclined among MOJ readers, there is a terrific article in the new issue of Modern Theology:  Lieven Boeve, "Europe in Crisis:  A Question of Belief or Unbelief?  Perspectives from the Vatican," 23:2 (April 2007), 205-27.

Tuesday, March 20, 2007

Year Five Has Begun: Some Food for Thought

By Michael Perry

Christianity Today, March (Web-only), 2007

From Protesting Abortion Clinics to Protesting the War:
Evangelical Christian couple who founded Believers Against the War have a son in Iraq.
Julie Sullivan, Religion News Service

Suzanne Brownlow shivers on the Oregon highway overpass as a cutting wind whips her sign: "Honk to End the War." Her weekly demonstration is the latest turn in a fractious journey that has taken the evangelical Christian mother from protesting abortion clinics to protesting the war in Iraq.

"I feel like at least we are doing something," Suzanne Brownlow says, waving with her husband, Dave, and two youngest children just outside Portland.

No polling data conclusively demonstrate that opinion has shifted among conservative evangelicals. But some prominent national evangelical leaders say that debate about — and, in some cases, outright opposition to — the war is breaking out among Christian conservatives.

For those evangelicals, they say, frustration with Republicans' failure to overturn abortion rights has fueled their skepticism. Others decry the war's human toll and financial cost, and they're concerned about any use of torture.

"This war has challenged their confidence in the party," says Tony Campolo, an evangelical Baptist minister who lectures across the country on social issues.

"Add to that that they feel the Republicans have betrayed them on the abortion issue," says the author and frequent talk-show guest, "and you are beginning to see signs of a rebellion."

The National Association of Evangelicals, which says it represents 45,000 evangelical churches, recently endorsed an anti-torture statement saying the United States has crossed "boundaries of what is legally and morally permissible" in its treatment of detainees and war prisoners in the fight against terror.

The Brownlows voted for Bush in 2000 because of his more conservative views. But a month before the 2003 invasion, the Damascus, Ore., couple began campaigning against his Iraq policies. Dave Brownlow ran for Congress three times, twice on an anti-war ticket for the Constitution Party. Since November, the couple have lobbied lawmakers to bring the troops home.

Last month, they founded Believers Against the War to influence other evangelical Christians.

On a recent Saturday, a motorcyclist, sleek in black leather, spotted the Brownlows' banners, raised his gloved fist and flipped an obscene gesture. The Brownlows smiled, because many others were honking their support. Then a woman driver slowed and screamed, "Get over it."

Suzanne Brownlow's serenity finally broke.

"How can I get over it?" she said. "My son is in Iraq."

To be sure, many mainline Christian churches and several dozen prominent evangelicals opposed the war from the beginning. Others were ambivalent.

But since 2003, polls have shown that a higher rate of conservative Christians than other Americans favored military action. The National Association of Evangelicals, the same group that condemned torture tactics, even linked evangelical "prayer warriors" to the successful killing of Saddam Hussein's sons.

Daniel Heimbach, professor of Christian ethics at Southeastern Baptist Theological Seminary in Wake Forest, N.C., supported the war and Bush's recent troop surge. Heimbach said that while pacifists believe war is never moral, and crusaders believe it is the ultimate means to bring about God's kingdom on Earth, the dominant view among some Christians for centuries has been that war can be justified under certain conditions.

Now the debate has shifted to whether the United States should stay. Heimbach says he is not convinced the situation is hopeless or that the cost of remaining is too high.

Daniel R. Lockwood, president of Multnomah Bible College and Biblical Seminary in Portland, Ore., says he has seen a "sea change" among his students, who are looking beyond traditional conservative issues such as abortion and homosexuality to the environment, children with HIV/AIDS and the poor.

"More and more, students are very interested in social justice and issues often associated with the middle and the left," Lockwood says, "and the war is a piece of that."

Before the war in Iraq, the Brownlows shared the concerns of the religious right.

Suzanne and Dave Brownlow met at a church singles group in Houston 26 years ago. As born-again Christians, they vowed their marriage, like their faith, would be politically active. He picketed Planned Parenthood clinics; she organized for the Concerned Women for America, eventually becoming the director of the organization's state chapter.

They had Jared, now 20; Desi, 19; Jace, 15; and Sierra, 12, and moved to Oregon in 1990 for Dave's job. They home-schooled their children, were foster parents for three medically fragile youths for Heal the Children and housed eight foreign-exchange students. They say those experiences "made the world smaller for them."

They campaigned on behalf of Republican candidates. In 2001, Suzanne Brownlow won the Concerned Women for America's National "Diligence" award.

But by 2002, troubled by the lack of progress on the anti-abortion front and the legality of the president's war powers, they joined the Constitution Party. Soon after the invasion, Dave Brownlow began writing articles opposing the war.

Meanwhile, Jared Brownlow — long fascinated by military histories, movies and photos of his grandfather, a World War II tail gunner — joined the Army.

The Brownlows say their eldest son has not objected to their anti-war efforts. He's serving in the Army near Baghdad.

Suzanne Brownlow says she had no choice. Increasingly overcome with worry, she has trouble eating and dreams of helicopters landing in her yard. Her husband starts every day clicking onto casualty Web sites. The couple keep two clocks in their living room, one for Oregon and one for Iraq.

Although many churchgoers are active against the war, the Brownlows say they still feel self-conscious sharing their views with their Christian friends, or even praying at their church for their son's platoon. People have told them that freedom isn't free or that they must support the troops.

"As if to say that by allowing our sons and daughters to languish in a vast Iraqi shooting gallery," Dave Brownlow says, "we are somehow supporting them."

"We really don't fit anywhere," Suzanne Brownlow says. "All our friends are pro-war and think we are heretics for talking against the president."

Saturday, March 17, 2007

Begging

By Michael Perry

An anti-begging law was ruled unconstitutional by the Ireland Supreme Court last week.  MOJ friend Gerry Whyte (Trnity College Dublin, Law) thought the news report about the decision would be of interest to MOJ readers.  Click here and then click on "Begging law struck down".

Wednesday, March 14, 2007

Allan Simpson Responds to Peter Pace

By Michael Perry

Washington Post
March 14, 2007

Bigotry That Hurts Our Military
By Alan K. Simpson

[The writer was a Republican senator from Wyoming from 1979 to 1997.]

As a lifelong Republican who served in the Army in Germany, I believe it is critical that we review -- and overturn -- the ban on gay service in the military. I voted for "don't ask, don't tell." But much has changed since 1993.

My thinking shifted when I read that the military was firing translators because they are gay. According to the Government Accountability Office, more than 300 language experts have been fired under "don't ask, don't tell," including more than 50 who are fluent in Arabic. This when even Secretary of State Condoleezza Rice recently acknowledged the nation's "foreign language deficit" and how much our government needs Farsi and Arabic speakers. Is there a "straight" way to translate Arabic? Is there a "gay" Farsi? My God, we'd better start talking sense before it is too late. We need every able-bodied, smart patriot to help us win this war.

In today's perilous global security situation, the real question is whether allowing homosexuals to serve openly would enhance or degrade our readiness. The best way to answer this is to reconsider the original points of opposition to open service.

First, America's views on homosexuals serving openly in the military have changed dramatically. The percentage of Americans in favor has grown from 57 percent in 1993 to a whopping 91 percent of 18- to 29-year-olds surveyed in a Gallup poll in 2003.

Military attitudes have also shifted. Fully three-quarters of 500 vets returning from Iraq and Afghanistan said in a December Zogby poll that they were comfortable interacting with gay people. Also last year, a Zogby poll showed that a majority of service members who knew a gay member in their unit said the person's presence had no negative impact on the unit or personal morale. Senior leaders such as retired Gen. John Shalikashvili and Lt. Gen. Daniel Christman, a former West Point superintendent, are calling for a second look.

Second, 24 nations, including 12 in Operation Enduring Freedom and nine in Operation Iraqi Freedom, permit open service. Despite controversy surrounding the policy change, it has had no negative impact on morale, cohesion, readiness or recruitment. Our allies did not display such acceptance back when we voted on "don't ask, don't tell," but we should consider their common-sense example.

Third, there are not enough troops to perform the required mission. The Army is "about broken," in the words of Colin Powell. The Army's chief of staff, Gen. Peter Schoomaker, told the House Armed Services Committee in December that "the active-duty Army of 507,000 will break unless the force is expanded by 7,000 more soldiers a year." To fill its needs, the Army is granting a record number of "moral waivers," allowing even felons to enlist. Yet we turn away patriotic gay and lesbian citizens.

The Urban Institute estimates that 65,000 gays are serving and that there are 1 million gay veterans. These gay vets include Capt. Cholene Espinoza, a former U-2 pilot who logged more than 200 combat hours over Iraq, and Marine Staff Sgt. Eric Alva, who lost his right leg to an Iraqi land mine. Since 2005, more than 800 personnel have been discharged from "critical fields" -- jobs considered essential but difficult in terms of training or retraining, such as linguists, medical personnel and combat engineers. Aside from allowing us to recruit and retain more personnel, permitting gays to serve openly would enhance the quality of the armed forces.

In World War II, a British mathematician named Alan Turing led the effort to crack the Nazis' communication code. He mastered the complex German enciphering machine, helping to save the world, and his work laid the basis for modern computer science. Does it matter that Turing was gay? This week, Gen. Peter Pace, chairman of the Joint Chiefs, said that homosexuality is "immoral" and that the ban on open service should therefore not be changed. Would Pace call Turing "immoral"?

Since 1993, I have had the rich satisfaction of knowing and working with many openly gay and lesbian Americans, and I have come to realize that "gay" is an artificial category when it comes to measuring a man or woman's on-the-job performance or commitment to shared goals. It says little about the person. Our differences and prejudices pale next to our historic challenge. Gen. Pace is entitled, like anyone, to his personal opinion, even if it is completely out of the mainstream of American thinking. But he should know better than to assert this opinion as the basis for policy of a military that represents and serves an entire nation. Let us end "don't ask, don't tell." This policy has become a serious detriment to the readiness of America's forces as they attempt to accomplish what is arguably the most challenging mission in our long and cherished history.

Saturday, March 10, 2007

Reply to Rick

By Michael Perry

Rick's question catches me just as I am preparing to hit the road for the better part of the next two weeks.  Got to pack and take care of some odds and ends, so this will be quick.  I've read the review of Lynn Hunt's book (Hunt, Rick, not Hurt), and what the reviewer (Joshua Muravchik) says seems sound to me:

To connect human rights to social history in this way is an original and interesting approach to the subject. But it is not entirely convincing. If bodily boundaries changed after the 14th century, why did a change in the perceptions of rights not happen until the 18th? Did a revulsion toward torture bring about new ideas about rights, or did the cause-and-effect relation go the other way, with a sense of rights coming first and revulsion after? Or is it possible that some third, underlying cause affected both?

Similarly, Ms. Hunt does a nice job of explaining the era's epistolary novels and their themes of empathy, but she offers no evidence of their direct connection to the emergence of human rights. Maybe "coincidental" is indeed the right word. In any case, it is hard to believe that epistolary novels were a more potent engine of empathy than the book of Genesis, which enjoins against murder on the grounds that "in the image of God made He man."

In Ms. Hunt's interpretation, our sense of rights is infinitely elastic and vulnerable to shifting emotion. She might have stopped to address the possibility--advanced by Steven Pinker and James Q. Wilson, among others--that morality has a strong genetic component. She also plays down the power of intellect in human affairs. For Jefferson's and Locke's ideas to take hold, must we assume that the 18th-century brain required some extraneous preparation? Couldn't it be that the insights and arguments of the era's great minds were forceful in themselves, playing a much greater role than "Clarissa"?

To say that the theory at the heart of Ms. Hunt's book is unpersuasive, though, is not to deny its value. Along the way, she offers a lively and informative history of human rights, even if the source of them remains something of a mystery.

In any event, we find (what I call) the morality of human rights as least as far back as the Gospels.  I discuss the morality of human rights, and its religious ground, in my new book, Toward a Theory of Human Rights:  Religion, Law, Courts (Cambridge 2007).

Let me seize the opportunity to alert MOJ readers in the Salt Lake City area to a discussion that will take place at the University of Utah this Thursday afternoon, March 15.  Fellow MOJ blogger Steve Shiffrin, Michael McConnell, and I will be discussing establishment clause issues.

 

Thursday, March 8, 2007

For Rob Vischer ...

By Michael Perry

... and others interested in Christians and conscience.

Click here and follow the link to The Colbert Report.  (FYI:  Stephen Colbert is a Catholic.)

 

Tuesday, March 6, 2007

THE SAD SAGA CONTINUES ...

By Michael Perry

(For earlier installments, click here and here.)

New York Times
March 6, 2007

Former Prosecutor Says Departure Was Pressured
By ERIC LICHTBLAU 

WASHINGTON, March 5 — The former federal prosecutor in Maryland said Monday that he was forced out in early 2005 because of political pressure stemming from public corruption investigations involving associates of the state’s governor, a Republican.

“There was direct pressure not to pursue these investigations,” said the former prosecutor, Thomas M. DiBiagio. “The practical impact was to intimidate my office and shut down the investigations.”

Mr. DiBiagio, a controversial figure who clashed with a number of Maryland politicians, had never publicly discussed the reasons behind his departure. But he agreed to an interview with The New York Times because he said he was concerned about what he saw as similarities with the recent firings of eight United States attorneys.

As in those cases, there are conflicting accounts of the circumstances that led to Mr. DiBiagio’s ouster. The Justice Department disputes his version.

His office had been looking into whether associates of Gov. Robert L. Ehrlich Jr. had improperly funneled money from gambling interests to promote legalized slot machines in Maryland. Mr. DiBiagio said that several prominent Maryland Republicans had pressed him to back away from the inquiries and that one conversation had so troubled him that he reported it to an F.B.I. official as a threat.

But he said that the Justice Department had offered little support and that that made it “impossible for me to stay.”

Several current and former officials in the Baltimore office said Mr. DiBiagio voiced concerns in 2004 that the corruption inquiries were jeopardizing his career, a view that they shared.

[To read the whole article, click here.]

Another article in today's NYT reports:

One of the dismissed United States attorneys who are expected to testify is David C. Iglesias, who was removed as the top federal prosecutor in New Mexico. Mr. Iglesias is expected to describe in detail the phone calls he received last year from Senator Pete V. Domenici, Republican of New Mexico, and an unidentified Republican lawmaker, Congressional aides said.

Mr. Iglesias has said the calls were intended to press him into bringing indictments that would embarrass Democrats before the November 2006 elections. The case centered on an investigation of a kickback scheme related to a construction project involving a former Democratic official. Mr. Domenici has acknowledged making a call to the prosecutor but has said he did not press Mr. Iglesias.

Mr. Domenici is one of the three Republican members of the state’s Congressional delegation. One of the other lawmakers, Representative Steve Pearce, has said he did not contact Mr. Iglesias. The remaining Republican, Representative Heather A. Wilson, told The Washington Post on Monday that she had spoken with Mr. Iglesias but said she had not pressured him.

Also on Monday, Citizens for Responsibility and Ethics in Washington asked the Senate Committee on Ethics whether Mr. Domenici violated Senate rules when he contacted Mr. Iglesias. The group noted that Mr. Domenici made the call shortly before the November elections, in which control of the House came down to a handful of competitive races.

Carol C. Lam, who was removed as United States attorney in San Diego, said in testimony prepared for her appearance in the House that “in most of our cases, we were given little or no information about the reason for the request for our resignations.” Ms. Lam said in her written testimony that she would not speculate on the reasons.

Senator Charles E. Schumer, Democrat of New York, who has led the Senate investigation into the removals, said the ousted prosecutors wanted to talk about their experiences. “We have spent decades trying to insulate U.S. attorneys from the political process,” Mr. Schumer said, “and it looks more and more like all that has been undone in the last few years.”

[To see the whole article, click here.]

Monday, March 5, 2007

" ... for those of us interested in how, if at all, religion can influence civil society ..."

By Michael Perry

MOJ friend Gerry Whyte writes:

The Irish State has recently established a formal forum for dialogue with faith communities and it held its first meeting last week.  You will find the speech of the Taoiseach (Prime Minister) opening the session at

http://www.taoiseach.gov.ie/index.asp?locID=558&docID=3257

It makes for an interesting read for those of us interested in how, if at all, religion can influence civil society.

Sunday, March 4, 2007

THE PLOT THICKENS ...

By Michael Perry

Against the backlground of two earlier posts--one by me and one by Rick--some MOJ-readers, many of whom are law students, will be interested in this article:

New York Times
March 4, 2007

A New Mystery to Prosecutors: Their Lost Jobs
By DAVID JOHNSTON,  ERIC LIPTON and WILLIAM YARDLEY

WASHINGTON, March 3 — After Daniel G. Bogden got the call in December telling him that he was being dismissed as the United States attorney in Nevada, he pressed for an explanation.

Mr. Bogden, who was named the top federal prosecutor in Nevada in 2001 after 11 years of working his way up at the Justice Department, asked an official at the agency’s headquarters if the firing was related to his performance or to that of his office. “That didn’t enter into the equation,” he said he was told.

After several more calls, Mr. Bogden reached a senior official who offered an answer. “There is a window of opportunity to put candidates into an office like mine,” Mr. Bogden said, recalling the conversation. “They were attempting to open a slot and bring someone else in.”

The ouster of Mr. Bogden and seven other United States attorneys has set off a furor in Washington that took the Bush administration by surprise.

Summoning five of the dismissed prosecutors for hearings on Tuesday, the newly empowered Congressional Democrats have charged that the mass firing is a political purge, intended to squelch corruption investigations or install less independent-minded successors.

Interviews with several of the prosecutors, Justice Department officials, lawmakers and others provide new details and a fuller picture of the events behind the dismissals. Like Mr. Bogden, some prosecutors believe they were forced out for replacements who could gild résumés; several heard that favored candidates had been identified.

[To read the rest of the article, click here.]

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