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.

Friday, May 12, 2006

More on CST Down Under

My colleague Lisa Schiltz notes that even with its impressive social safety net, Australia is one of only two industrialized nations (along with the US, of course) that have no laws requiring employers to provide any paid maternity leave.  So there remains a crucial role for non-state actors in realizing CST's promise, and that's where the Australian Catholic University stepped in a few years ago.  From Lisa's recent paper, Motherhood and the Mission: What Catholic Law Schools Could Learn from Harvard about Women:

In August 2001, ACU announced that it was implementing a new maternity leave policy for all of its staff.  Every staff member who had been employed for at least two years was entitled to a full year’s paid maternity leave – the first 12 weeks at full pay, and an additional 40 weeks at 60% pay.    A few months later, this same policy was extended to faculty. . . . ACU did not adopt this policy in response to any union pressure, any law suit, or any threat of more stringent regulation. . . . The chief motivation given by the administration for taking this radical step was to support families and to openly acknowledge parenting as a significant aspect of the life of its employees.   As one ACU administrator stated,  “[W]e can’t treat our employees as if parenting doesn’t matter.  We believe it does and are committed to that value.”  This generous support of families was characterized as being “in line with a progressive tradition of social justice and equity . . . consistent with our ethos as a Catholic institution.”  While ACU hoped that its generous policies would have the incidental effect of attracting and retaining good women staff, the University stressed that the decision was made “because it was right: parents, women, and men, should not be disadvantaged in the workplace because they have children.”

Rob

Radio MoJ?

Well, probably not.  But news that Sirius is launching a Catholic radio channel raises all sorts of interesting programming possibilities for MoJ personnel.  (Who wouldn't tune into Michael Perry hosting a weekly call-in show on human sexuality?  Or Bainbridge and Sargent hosting a show on corporations and social justice, or Penalver and Garnett on political conservatism and Catholic social thought?)  Instead, though, the channel will undoubtedly stick to the basics.  Why?  Because, as Amy Welborn explains, the alternative "would shatter the image that church folks are determined to promote: that Church is a nice boring place full of nice boring people who all get along all the time...no matter what Acts of the Apostles says."

Rob

Thursday, May 11, 2006

CST Down Under

Have Catholic social teaching's dual warnings against unbridled capitalism and centralized paternalism finally found a national economy to call home?  Financial Times reports:

It is a developed country that enjoyed faster economic growth than the US over the past decade. Yet it also offers universal healthcare and other social welfare benefits that the US does not. Unemployment is similar to America’s, but without the glaring income disparities that characterise US growth. It is a country that seems to have achieved a sweet spot, combining the vigour of American capitalism with the humanity of European welfare, yet suffering the drawbacks of neither. And it manages this while keeping a consistent budget surplus. That country, rolling into its 16th year of uninterrupted growth, is Australia.

Rob

Evil or Simply Wrong?

Yale law prof Stephen Carter defends the ACLU in Christianity Today:

I think the ACLU is wrong to oppose religious expression in the public square, but being wrong is not the same as being evil.  More to the point, the ACLU is often right about the First Amendment's free exercise clause, taking on fights that others refuse. It might surprise some critics that the ACLU defends the free speech and free exercise rights of, well, Christians. . . .

Yet I must confess that, although I am pleased to balance the record, defending the ACLU is not my primary purpose here. I am more concerned about a habit of mind that seems to be growing among my fellow Christians, both political liberals and conservatives. That is, we seem to mimic the secular world's conflation of disagreement with wickedness, as if not sharing my worldview places my critic outside the realm of rational discourse.

Rob

Fighting for Justice (One Tote Bag at a Time . . .)

As Mother's Parent's Person's Day approaches, we must be wary that we don't thoughtlessly discriminate on the basis of age, gender, or parental status in our celebration of the day.  As always, lawyers are leading the way in heightening our sensitivity.

Rob

Tuesday, May 9, 2006

Conscience and School Choice

I've just posted a new paper, The Sanctity of Conscience in an Age of School Choice: Grounds for Skepticism.  Here is the abstract:

A certain degree of deference to the individual consciences of both students and teachers makes sense under our traditional “common school” framework. Where students and their families are presented with a single option of publicly financed schooling, and where public school teachers’ employment opportunities are fungible in terms of the moral content of the curriculum and pedagogical mission, the school is functionally equivalent to the state. As such, invoking the sanctity of conscience can bolster the individual’s authority in what otherwise would be a pronounced power disparity in the state’s favor.

But the rise of school choice in many places gives students and teachers an important tool that may change the power dynamic in their relationship with any particular school: an exit option. Even in school districts that have not embraced private school vouchers, an array of charter, magnet, and other schooling options have created paths by which like-minded teachers and students can affirmatively choose to invest themselves in one school instead of another based on distinct normative claims embodied in the schools’ respective missions. As school choice bolsters the ability of a school to create its own identity, the ability to maintain and defend that identity presupposes a reduced authority for the individual consciences of the school’s prospective constituents.

Under these circumstances, schools no longer function as fungible components of an educational monopoly backed by coercive state power. Schools instead begin to serve a mediating function, linking students and teachers together in common support of a mission that is not shared by every school. The viability of this mediating function has two implications for individual conscience: first, to the extent that a teacher’s conduct is inconsistent with the school’s deliberately chosen mission, the school has a stronger claim to control it; and second, to the extent that the implementation of a school’s mission creates tension with a dissenting student’s conscience, the student’s exit option gives the school a stronger claim to maintain its mission. Conscience is by no means erased from the religious liberty analysis in an era of school choice, but its relevance and authority must be viewed from a different perspective. This article aims to begin tracing the contours of that perspective.

Feedback is, as always, much appreciated.

Rob

Monday, May 8, 2006

Rights Talk

Cardinal Francis Arinze seems to be suggesting that Christians should push for the censorship of The Da Vinci Code:

"Christians must not just sit back and say it is enough for us to forgive and to forget," Arinze said in the documentary made by Rome film maker Mario Biasetti for Rome Reports, a Catholic film agency specializing in religious affairs.

"Sometimes it is our duty to do something practical. So it is not I who will tell all Christians what to do but some know legal means which can be taken in order to get the other person to respect the rights of others," Arinze said.

"This is one of the fundamental human rights: that we should be respected, our religious beliefs respected, and our founder Jesus Christ respected," he said, without elaborating on what legal means he had in mind.

We're suffering from a serious case of rights-inflation, in my view, if we're going to stake out a legally cognizable right to have the substance of our religious beliefs respected by others.  Ilya Somin calls this an example of "censorship envy."

Rob

Friday, May 5, 2006

Living Apart Together

According to the Church, marital love "requires, of its very nature, the unity and indissolubility of the spouses' community of persons, which embraces their entire life," as husband and wife "are called to grow continually in their communion through day-to-day fidelity to their marriage promise of total mutual self-giving."  By contrast, witness the new trend reported in today's New York Times: "living apart together" (LAT), which refers to long-term couples, including married couples, living in separate homes.  The rise in LAT relationships is most evident among older couples who have been divorced previously, and "may be due to a growing unwillingness to compromise, particularly among members of a generation known for their self-involvement."

Rob

Wednesday, May 3, 2006

MoJ-ers in Commonweal

In the current issue of Commonweal, I review Robert Wuthnow's new book, American Mythos: Why Our Best Efforts to Be a Better Nation Fall Short, Mark Sargent reviews Bruce Ackerman's Before the Next Attack, and Eduardo Penalver asks "Are Illegal Immigrants Pioneers?"

Rob

Government Funding and Religious Transformation

Marty Lederman has offered his analysis of why the Bureau of Prisons' "residential multi-faith restorative justice program" is, in his words, "blatantly unconstitutional."  An excerpt:

The very purpose of the program, acknowledged by BOP, is "to facilitate personal transformation." (See page 1 of Attachment II, here.) Indeed, one of the ten program goals is "spiritual development" (see page 3 of that attachment). These are constitutionally illegitimate state interests. The government is required to be neutral -- agnostic, really -- on questions of transformation and spiritual development. BOP suggests that its interest in spiritual development of inmates is in the broader service of trying to "reduce recidivism through promoting the virtues of productive work, respect for others, self-worth, responsibility, and accountability." Those are, of course, legitimate state goals. But the government cannot specifically aim at religious transformation as a means of accomplishing those secular ends. As Madison explained in his Memorial and Remonstrance Against Religious Assessments, employing religion "as an engine of Civil policy" is forbidden, not least because it is "an unhallowed perversion of the means of salvation." What is more, I think there's something profoundly disturbing -- whether or not it's constitutional -- in the federal government advancing the view that the virtues of productive work, respect for others, self-worth, responsibility, and accountability are correlated with religious transformation or faith.

I don't know enough to quibble with Lederman's overall conclusion about the constitutionality of the program, but assuming that the government does not stake out a normative position that religious transformation should be the preferred path to virtue, why should the government be precluded from recognizing that there is, for many individuals, a correlation as a matter of fact between religious transformation and socially desirable virtues?

Rob