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, January 7, 2010

Faith and Corporate Law

By Susan Stabile

As part of the day long program of the Section on Socio-Economics at the AALS Annual Meeting in New Orleans today, I participated on a panel titled The Relationship of Faith and Law: The Example of Corporate Law.  The panel was organized and moderated by my colleague Lyman Johnson and included presentations my Sarah Duggin, David Opderbeck, Gordon Smith and myself.

In my talk, I contrasted the vision of the human person underlying Catholic social thought with the vision underlying the classical law and economics model that has dominated corporate law scholarship and also talked about some of the difficulties of moving from a discussion of general principles of Catholic thought to specific prescriptions for corporate law and corporate behavior.  Gordon Smith identified a different difficulty operating from a Mormon perspective – the lack of a developed set of principles of Mormon social thought, in contrast to the developed set of Catholic principles.

Gordon also raised the important question of who is the audience for our discussions in this area.  When we talk about questions of faith and corporate law, to whom are we speaking?  This is a question relevent not just to the subject of today’s panel, but one that can be asked more broadly about our project of attempting to articulate a Catholic legal theory.    It has long been my view that if there is value in this enterprise, we must find ways to be heard outside of our own group and not be merely talking among ourselves.  Sarah Duggin provided one answer to the audience question in the corporate area, focusing on our role as law professors in teaching our students that there is a viable alternative to the shareholder primacy norm that they seem to take for granted.

ERISA Exemption of Church Plans

By Susan Stabile

It was reported earlier this week that Augsburg Fortress, the publishing ministry of the Evangelical Lutheran Church in America (ELCA), has terminated its defined benefit pension plan. The plan is severely underfunded, meaning that plan participants will only receive a fraction of the benefits to which they are entitled under the plan.

ERISA regulates the pension plans of most private employers.  Among other things, it imposes mimimum funding standards on defined benefit plans designed to prevent serious underfunding problems.  ERISA also put in place an insurance system that guarantees some portion of plan benefits in the event a plan terminates with insufficient assets to pay all vested benefits that have accrued under the plan.  Because ERISA contains an exemption for "church plans," the regulations and protections of ERISA don't apply to the Augsburg Fortress plan.

Although I confess that I have not ever given the church plan exemption a whole lot of thought, I think it is probably correct that such plans should be exempt from ERISA regulations.  (Whether that conclusion is better grounded in Establishment Clause or Free Exercise concerns is something I'll leave to the First Amendment scholars.)  But the exemption does contribute to some unfortunate consequences.  Employees of entities such as Augsburg Fortress are in need of as much protection as employees of private employers and the exemption leaves such employees far worse off when a plan such as this one is terminated. 

UK and Sharia Law

By Susan Stabile

One MOJ reader had this comment in response to Carissa Mulder's thoughts on the UK case that I posted last evening:

Carissa Mulder towards the end of her comments states that "The UK has
never recognized sharia law." and later she states: "I would be happy
if sharia law were the equivalent of courts of canon law."

I think the accuracy of her first statement depends on what she means
by "recognize" because the UK government has allowed sharia courts to
operate in limited circumstances and has approved sharia-compliant
financial institutions to be formed and operate within the UK.

Sharia courts, like the Jewish Beth Din courts, are treated as
arbitration tribunals under the UK Arbitration Act 1996.  The parties
have to voluntarily consent to have the courts hear their case and
abide by its decision.  In cases for change of status, like divorce,
they may adjudicate the religious case but the parties still must seek
a civil divorce in order for their marriage to be legally ended under
the laws of England and Wales.  So in the case of divorce, sharia
courts and Jewish Beth Din courts are acting in ways that are somewhat
similar to the Office of the Tribunal of a particular Catholic diocese
which decides whether to issue declarations of nullity for Catholics
who wish their marriage to be annulled.

Continue reading

Wednesday, January 6, 2010

More Thoughts on the U.K. Case

By Susan Stabile

Carissa Mulder, an MOJ reader who is a former student of Rick Garnett, adds this reaction to our conversation about the UK case holding that a Jewish school could not apply Orthodox rabbinical standards as to who is Jew in its admissions policies:

 I thought it was interesting that you questioned whether permitting the establishment of sharia law and permitting a religious school to define its own admissions policy should be treated differently. I think the two cases should be treated differently. 

There are a few reasons why sharia law should not be permitted in Britain, but religious-based school admissions should be. As a preliminary matter, I think we have to realize that the state has a proper sphere. In this case, the state has veered outside of its proper sphere. However, (I think) some form of government is always necessary, and as a result the government has its own role to play. Basically, the state should ensure law and order. The state should defend its people against outside attackers and regulate relationships between citizens. There must be laws to regulate these relationships.
The first point builds on one made by RG's former student. Rather than simply assuming that sharia law is comparable to admission to a religious school, it's necessary to look at the substance of the two things. 

Continue reading

Tuesday, January 5, 2010

Professor Wertheimer Responds to Rick

By Susan Stabile

Professor Ellen Wertheimer sends this response to Rick's reaction to her earlier comment on the UK decisio: holding that a Jewish school could not apply Orthodox rabbinical standards as to who is Jew in its admissions policies:

It is certainly possible that the court and the Orthodox community that seems to have set the standards for admission to the school are talking at cross-purposes.  Perhaps the problem is that the governmental entity that supports the schools allowed the use of the Orthodox definition of who is Jewish in the first place.  Under the Orthodox definition, a practicing and confessional Catholic who has one Jewish grandparent is a Jew if that grandparent were his or her mother's mother, while a practicing Jew whose mother's mother converted to Judaism in a Reform ceremony is not a Jew, even though the other three of his or her grandparents are Jewish, and even though both of his or her parents practice that religion.   Of course, I do not question the right of any branch of Judaism to set the standards of who is a Jew in the first place; the problem here, though, is that access to a publicly-funded education in a Jewish school is being limited by one branch of the religion, resulting in the exclusion of members of other branches.

In any event, and be that as it may, this entire discussion seems to underline the wisdom of keeping government and religion apart.  The simplest answer--and one that eliminates any risk of government interference in religion--may be that the government should cease paying for or financially supporting religious schools in the first place.  If the government were not supporting the schools, the problem of government interference in religious standards would not arise, and the parochial schools of Britain could set their own admission criteria without any government oversight.  Of course, the principles of separation of church and state that we follow in this country do not necessarily translate to Britain, which has (in theory) an established religion, but it does not follow that the government of the UK has to pay for parochial education for any of its subjects.

Further Thoughts on UK Decision

By Susan Stabile

Professor Ellen Wertheimer at Villanova Law School shares these thoughts in response to our recent posts on the UK decision holding that a Jewish school could not apply Orthodox rabbinical standards as to who is Jew in its admissions policies:

I want to caution those on Mirror of Justice against over-reading the decision.  As I understand the case, the mother of the student at issue had in fact converted to Judaism in a ceremony that was acceptable to Reconstructionist, Reform, and Conservative Judaism.  It was not an Orthodox conversion, which meant that the Orthodox branch of Judaism did not view her as Jewish.

My father, as it happens, was a Jewish refugee from Nazi Germany.  For him, the idea that Jews were a race was utterly repellent as having been the basis Hitler used for the genocide that he planned and carried out.  At least some of the original founders of Israel agreed with this.  When asked, "who is a Jew,?" the response was "Him that says, is."

In any event, the opinion rejects any principle that would base religious identity on heredity,  focusing instead on belief and action. 

Jewish Schools Employing Religious Standards in Admitting Students

By Susan Stabile

Rick talks about the UK case holding that a Jewish school could not apply Orthodox rabbinical standards as to who is Jew in its admissions policies, quoting Charles Moore's critical commentary of the decision.

While I share some hesitation in treating actions like this as race discrimination, I think one needs to do more than Moore does to explain why it is important to allow religious schools to be "free to prefer to admit children from the relevant faith."  More clearly sees no difference between a religious school's preference in hiring teachers of its faith and admitting students of its faith.  Although neither issue strikes me as crystal clear, my inclination is to think the answers to those two questions are not necessarily the same. 

More suggests a student preference is necessary "to maintain the ethos which is so important to its success as a school."  It seems to me hard to make that argument on these facts.  This case involved a child who was not considered Jewish because his mother converted to Judaism after his birth.  Except in that technical sense, the child was Jewish in the sense of being raised in a Jewish home by parents who clearly wanted him educated into their faith.  It is hard to see how keeping such a child out of the school is necessary to maintain the school's "ethos."

Although Rick didn't quote this part of Moore's piece, I was also bothered by Moore's treatment of the difficulty to deciding when the law should interfere with religious decisions.  For Moore the answer is clearly no in this case, but clearly yes, when the issue is "resist[ing] Islamist attempts to advance the cause of sharia as a way of creating a parallel legal order (oppressive of women) in this country."  Why is it so clear that these should be treated differently?  Why are the school children deprived of a particular education less oppressed than women under sharia?  Maybe there is a good difference, but demontrating that requires more than a mere assertion.

 

Thursday, November 26, 2009

A Day of Thanksgiving and Prayer

By Susan Stabile

My Creo en Dios! blog post this morninig (which you can read in its entirety here) quote's Washington's 1989 recommendation that this day be observed “as a day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts the many and signal favours of Almighty God.” Washington’s proclamation asked the American people to “beseech Him to pardon our national and other transgressions, to promote the knowledge and practice of true religion and virtue, and to grant unto all mankind such a degree of temporal prosperity as He alone knows to be best.”

Individually and collectively, we have much for which to give thanks. Among the people in my life for whom I give thanks are my MOJ friends, who continually help me grow.  Thank God and thank you.

Blessings to all of our MOJ friends on this Thanksgiving Day.

Monday, October 26, 2009

Petitionary Prayer

By Susan Stabile

Unlike Merton (who I'm a big fan of) or Michael P., I find petitionary prayer neither the product of immature theology nor mind-boggling.  However, assuming the Notre Dame players were not simply giving thanks for the opportunity to play football on a beautiful fall day in Notre Dame, contray to Rick's suggestion, I don't read the Gospel as authority for what I suspect was the prayer of the Notre Dame players.

I talked about this in a blog post recently, in connection with Jesus' "Ask and you shall receive."  As i express in that post, my own view is that praying "let my team beat another team" is not a worthy object of prayer.

Update: However, praying (to use two examples Rick sent me via e-mail), "keep us safe" or "let us pray in a manner worthy of a young Christian athlete" seems to me an appropriate prayer for an athlete to make.

Saturday, October 17, 2009

The Virtue of Enough

By Susan Stabile

Today I participated in the St. John's University Vincentian Chair of Social Justice Poverty Conference, the Vincentian Center's 6th biennial povertty conference.  The theme was Extreme Wealth and Poverty and the Virtue of Enough.  I moderated the opening plenary session, Globalization, Development and Poverty: The Crisis of Ethics and Economics, which featured talks by Drew Christensen, S.J., Editor-in-Chief of America magazine, and H.E. Oscar de Rojas, fomer director of the Financing for Developing Office of the UN Department of Economics and Social Affairs.  That session was followed by a second plenary panel that presented international perspectives on globalization and the effects of the economic crisis on both the wealth and the poor.  The afternoon featured concurrent workships on topics ranging from the environment to mental health in stressful times to how we define poverty and measure progress in today's world.

I was captivated by the theme of this conference as soon as I heard it.  The virtue of "enough."  As Christensen pointed out in his talk, "enough" is not listed as one of the virtues.  However, it is implicit in much of Catholic teaching.  The goods of the earth, provided by our loving God, are destined for all and when are our needs are satisfied, we are obligated to share the rest.  If we all consume what we need and share the rest, there will be enough for all.  It is actually a pretty simple concept.

Christensen went on to talk about the various cultural forces that have contributed to a loss of a sense of enough, a loss of a willingness to modify our lifestyle for the sake of the common good...an unwillingness to have less so others can have enough.

What went through my mind as I was listening to both of the opening speakers this morning, but particularly Christensen, was the language of policital discussions over health care reform, in particular, the efforts to persuade those who currently have care that plans to secure universal access will not have any effect on their existing coverage.  In the short term, that may be a politically expedient message.  However, it seems to me that it is a message that feeds into an attitude of greed vs. generosity and of me vs. you.  Beyond the specific issue of how we deal with health care reform and much more broadly with respect to worldwide issues of hunger, lack of clean water, etc., I wonder from where might come the leadership to stand up and say: We have a human obligation to make sure everyone has enough.  And (more boldly) it just may be that some people have to accept less so that others may have enough. 

Previous Articles More Articles

Recent Posts

Categories

Monthly Archive