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, April 1, 2004

The Pope and the Pledge (cont'd)

Michael has asked whether the Pope's call to include an acknowledgment of Europe's Christian heritage in the EU Constitution is similar to the inclusion of religious references in our public documents, including the pledge of allegiance. At least as far as the inclusion of "under God" in our pledge, I believe the Pope's call is a fundamentally different and more defensible example of religion's entry into the public square. The course and tenor of the EU Constitution and pledge controversies speak volumes about the wildly divergent conceptions of church and state in Europe and America.

I have yet to read a coherent -- much less compelling -- argument as to why the EU Constitution must be devoid of any reference to Christianity's formative role in the very existence of Europe. It seems that European secularism is rapidly morphing into a worldview that not only privatizes religion, but attempts to pretend that it doesn't exist at all. (See February posts discussing French ban on religious garb in schools.)

The pledge is a different story. Read in plain context, "under God" is not a reference to the founders' beliefs, but an ongoing normative assertion. As such, the secularist objection must be taken seriously. Indeed, as I've posted on earlier (see "Discomfort with the Pledge," Mar. 25), to overcome the secularist objection and remain within the framework of Establishment Clause jurisprudence, one must almost unavoidably give offense to those of us who take religious utterances seriously.

Rob

Tuesday, March 30, 2004

Kerry in St. Louis

It seems that Kerry did not attempt to go to mass in St. Louis on Sunday, judging by his appearance at a Baptist church that day. He is, however, continuing to make religion a more visible part of his political identity. At the Baptist church, he stated: "The scriptures say: 'It is not enough, my brother, to say you have faith, when there are no deeds.' We look at what is happening in America today and we say: 'Where are the deeds?'" (You can read the entire speech here.) A spokesperson for Bush responded by labeling the speech a "sad exploitation of scripture for political attack." I'm not sure how much room Bush has to complain about the political exploitation of scripture. In any event, given the importance of Catholic voters in the election, and the fact that Kerry is unlikely to drive secularists away no matter how religious he gets, it will be interesting to see if the candidates turn this into a religiosity race. I tend to hope not.

Rob

Friday, March 26, 2004

Religious Law Schools and Student Well-being

I'm writing from the Religiously Affiliated Law Schools conference at Notre Dame. Today's discussions have touched on many points of impact -- both actual and potential -- between institutional religious commitments and legal education. One presentation I found especially intriguing was by Jerry Organ, a professor at St. Thomas in Minneapolis. He posited that student well-being may largely be a factor of the extent to which students are motivated by internal values and priorities (integrity, faith, etc.) rather than extrinsic considerations (wealth, prestige, etc.). In a sense, he applied an expanded notion of the saying, "money can't buy happiness" to the law school environment.

To the extent law schools can help students elevate internal over external motivations, I have no doubt that students would be better off. But I wonder how realistic it is to expect law schools to do so. After all, in an environment where institutional decisions seem driven in significant part by US News rankings, law schools themselves are motivated primarily by extrinsic considerations, most notably reputation. Law schools don't seem concerned as much with helping students "find themselves" as in enabling students to plug into the best (i.e., most prestigious) job possible, whether private practice, government, or public interest. I have no doubt that a student at the top of the class who turns down a federal clerkship or big firm job is perceived as a disappointment to the school, regardless of the compatibility of such career paths with the student's own priorities. A school's reputation is not enhanced by students who take the road less travelled.

So my question is this: by asking law schools to encourage internally motivated decision-making by students, are we asking the schools to put student interest over their institutional interests? If so, is it realistic to expect that more than a handful of schools will take the request seriously?

Rob

Thursday, March 25, 2004

Discomfort with the Pledge

I think one way to approach the pledge issue is to separate it into two distinct questions: first, do I think the Establishment Clause gives room for the democratic process to produce "religious" expressions like "under God" in the pledge? Second, would I vote to include the phrase "under God" in the pledge? On the first question, I believe the answer is yes (but like Rick, I have a hard time articulating a justification that does not "dumb down" religious commitment), but on the second question, I would undoubtedly say no.

My discomfort was driven home by observing my daughter in her first days of Catholic preschool. The teacher painstakingly taught the students how to recite the pledge, sing "God Bless America," and make the sign of the cross. Now each class begins with all three being done as one blended exercise -- leaving the distinct impression that the three are inherently connected and equal in importance. Isn't the same thing going on when students are led in a pledge of allegiance to the country, but also asked to tie that allegiance to a (rather vague) articulation of allegiance to God? By no means do I believe that love of country and love of God are inconsistent, but I do believe they are entirely separate states of devotion of distinctly unequal importance. This may be Stanley Hauerwas's (or Tom Shaffer's) impact on me, but I'm growing less comfortable with the civil-religious-patriotic strains of public life -- not because of constitutional concerns, but because of concerns over the continued vibrancy of religious devotion.

Rob

Wednesday, March 24, 2004

Government and Charity: Just Say No?

Mirror of Justice reader Michael S. Oswald agrees that government funding threatens to compromise religion's mission in society. (See Government Aid and Religion's Mediating Function, below) He goes a step further, though, and urges us to "get the government out of the charity business." In Michael's view, "if the government isn't funneling money from taxpayers to persons in need, it will have no standing to dictate how the providers of charity go about their missions. The church needs to be free from the threat of government interference." Michael explains that his views have been shaped by Marvin Olasky's The Tragedy of American Compassion, which demonstrates "that government's usurpation of the traditionally private institution of charity has been a dismal failure because it turned charity into an entitlement," and because "private organizations, using voluntary contributions of time and money, were and are the only ones that can deal with the spiritual dimension of poverty."

I can't comment fully on these points because I haven't read Olasky's book. I confess, though, that I've always been skeptical of this line of argument. If Catholic social thought were simply a deontologically driven blueprint for society, there might be some merit to the notion that human needs should be met strictly in the sphere of the voluntary. But there is a substantial instrumentalist core to Catholic social thought: we care not just how needs are met, but that the needs are met. Would I prefer that individuals who cannot help themselves are cared for by neighbors who choose to care for them, rather than through a faceless government agency? Of course. Do I think that volunteers could adequately fill the void left in 21st century America were the (admittedly imperfect) welfare state to abdicate its role in the charity business? No.

Michael's comments, though, have convinced me that I need to read Olasky's book, and I will endeavor to maintain an open mind if someone wants to show me how I've underestimated the "armies of compassion."

Rob

Tuesday, March 23, 2004

Government Aid and Religion's Mediating Function

Rick and Kathleen have insightfully identified a (perhaps the) major problem facing proponents of a vibrant role for religion in the social services arena. Often such proponents will reflexively favor government funding of religious associations as a way to level the secular/religious playing field and expand the scope of religion's mission-driven impact on society. Certainly government funds may allow groups to meet more needs, increasing their viability and attracting new members to a collective endeavor that previously may have seemed ineffectual or, at a minimum, peripheral to the government’s dominant social service role. But too much outside influence may negate the attributes that make groups valuable in the first place.

As Neuhaus and Berger recognized years ago, we value religious and other voluntary associations in significant part because they mediate between the individual and the surrounding society, empowering us to forge common identities that are separate from -- and even opposed to -- the identity reflected in the collective institutions of the state. By foregoing its core mission or watering down its identity as a condition of government funding, a previously independent association could be turned into, in essence, an arm of the government. Such a shift endangers any meaningful mediating function -- i.e., as allegiance to the government as a funding source increases, the association’s ability to serve as a mediating force between individuals and the government necessarily declines. (This prospect is explored further in my article, The Good, the Bad, and the Ugly: Rethinking the Value of Associations, posted in the sidebar.) This does not mean that the government should categorically preclude religious associations from obtaining the same funding that secular groups are eligible for, but it does mean that religious groups should think hard before taking their place at the government trough. It becomes even stickier, of course, when government funding becomes essentially a requirement of the industry, as is currently the case in health care and potentially with school vouchers (i.e., if every other private school has much of their tuition subsidized by the government, a religious school will be hard-pressed to compete effectively in the market without such subsidies).

I don't have an easy solution by any stretch, but I am becoming more intrigued by the value pluralism espoused by Isaiah Berlin (and others) to see if it could inform the civil society debate in a way that would protect social service providers' identies, even if that necessitates giving up some of liberalism's gains in the process. At a minimum, I think that civil society proponents (a category in which I count myself) need to be cognizant of the significant dangers that accompany the government's efforts to harness our "armies of compassion."

Rob

Sunday, March 21, 2004

Church Scandal Revisited: the elevation of client autonomy

The posts by Greg and Mark reminded me of a conversation I had several months ago with a friend who worked at one of the firms representing the Church in these lawsuits. I had given my friend an article I wrote calling for Catholic lawyers to do more to integrate the principles of Catholic social thought with their practice of law. (Catholic Social Thought and the Ethical Formation of Lawyers, posted in the sidebar) His response was, "Why should a Catholic lawyer feel obliged to pursue such integration when the Church itself doesn't even expect its own lawyers to do so?" Certainly the bishops' handling of the litigation sends a powerful message to the wider profession.

To the extent that the lawyers themselves are culpable for not helping the bishops bring the legal strategy into line with the Church's mission, this failure likely stems not from the fact that lawyers are concerned only with profit (though many are), nor from lawyers' tendency to avoid difficult client conversations (though many do), but from the legal profession's elevation of client autonomy as an absolute value. Lawyers who conceive of themselves as "amoral technicians" believe that they are nobly filling their societal role by providing their clients with unfettered access to the maximum set of rights and privileges that our legal system has to offer. To second-guess a client's stated objectives -- or even to suggest that a client reflect meaningfully on those objectives -- is widely perceived as threatening the fundamental client-directed quality of legal representation. As Tom Shaffer puts it, "In moral discourse, as in political and legal discourse, we don't talk about good people, we talk about rights," and we assume "that what citizens want for one another, and lawyers for their clients, is not goodness but isolation and independence." I do not know this for a fact, but I would guess that lawyers did not play a meaningful part in any conversations regarding the consistency between the bishops' tactics and the Church's mission, to the extent such conversations occurred at all. Further, I would guess that the lawyers involved would defend this omission as a prudent limitation on the lawyer's gatekeeping role.

Rob

Monday, March 15, 2004

Seton Hall vs. Gonzaga: articulating the distinction

Here's an insightful response from Gerald J. Russello to my query as to whether there's a double standard if we insist that Gonzaga recognize the Christian Legal Society chapter, but don't insist that Seton Hall recognize the gay student group:

The difference between Gonzaga and Seton Hall, to my mind, is that between "old fashioned" liberalism and something new. Seton Hall presents the traditional academic freedom dilemma: should a Catholic institution allow students to advocate on an issue in a school-approved group that is not compatible with its self-understanding as a Catholic institution. I believe Seton Hall is right not to permit such groups, because from a Catholic perspective that issue has been discussed and a conclusion reached. The issue can be discussed in a classroom, but not treated as an "expression" equivalent with other approved student groups. (We had similar debates when I was a student at Georgetown over pro-choice student groups).

With Harvard and InterVarsity, the issue is different. The "expansive view of non-discrimination" you rightly identify as the motivating force here conditions the identity of the participants in the debate. The particular issue is, in some sense, irrelevant. In other words, the discrimination against InterVarsity is not because of the point of view (advocating Christian legal principles in law), but because of the internal structure of the group itself (restricting leadership to Christians). Harvard may publicly proclaim that it has no "bias" against Christianity, but it believes all groups should reflect the student body, i.e., Christian groups should be subject internally to non-discrimination as a condition to recognition, even if the self-understanding of the group does not permit such non-discrimination. The secular ideology controls the way groups can understand themselves, even if (as in the case with a secular university) it disclaims any interest in the outcome of the debate. If this analysis is right, I think we can develop a principled distinction between the way we approach these two forms of pluralism.

As to your point on liberalism-as-religion, I disagree, not because it is not true, but primarily because liberals do not see it that way. From the perspective of liberalism, there is no "religious level" truth except tolerance, which cannot press its own truth claims. Crediting liberalism with the conviction of religion imports our own religious values to a system that, while deeply held, cannot come to conclusive answers to ultimate questions.

Gerald J. Russello

Friday, March 12, 2004

Diversity and Discrimination: a double standard?

There is some appeal to Rick's suggested approach (posted below) to the specter of a double standard when it comes to Gonzaga rejecting the Christian Legal Society student group versus Seton Hall rejecting the gay student group. We could support Seton Hall's action, but not Gonzaga's action, with an eye toward the Catholic identity of the institution.

But that approach is of limited help when it comes to non-Catholic institutions. Many schools, including Harvard, have resisted InterVarsity Christian Fellowship's official presence on campus because the group limits leadership to Christians. Most of us probably think Harvard should allow such groups to operate in a way that is consistent with the group's own religious identity. But if schools like Harvard have any core identity these days, it's arguably an identity rooted in an expansive vision of non-discrimination. So isn't InterVarsity's Christian-only leadership requirement inconsistent with Harvard's identity, just as a gay student group's mission is (arguably) inconsistent with Seton Hall's identity? Do we think secular schools are obligated to embrace a more robust form of pluralism than Catholic schools?

I certainly don't pretend to have an easy answer to this, but it seems that if we're going to invoke principles of pluralism and liberty to second-guess institutional decision-making shaped by a secular worldview that cuts against religious groups, we also have to invoke it when institutional decision-making shaped by a religious worldview cuts against non-religious groups. (I'm not speaking in constitutional terms here, just as a matter of public argument.) Either that, or we have to offer a double standard for pluralism and associational liberty depending on whether the school has a secular or religious worldview, and I'm not sure how to defend that, especially given that many tenets of modern liberalism have risen to the level of religious belief in the eyes of many adherents, especially in the realm of higher education.

Rob

Thursday, March 11, 2004

Diversity and Discrimination at Seton Hall

Yesterday a student filed suit against Seton Hall University after the school rejected his request to establish a gay student group on campus. I'm not sure as to the details of the student's request or the school's denial, but it raises an interesting point to follow up on Rick's post about Gonzaga. To the extent we value expressive liberty and associational identity, whose identity and expression should we support: the student group's or the university's? If the Gonzaga student government is trying to impose a collective, identity-squelching anti-discrimination norm on its student groups, isn't Seton Hall doing the same thing when it tries to enforce standards based on the Church's teaching? Besides the fact that we might favor the substance of one collective norm over the other, is there any principled reason for supporting the students trying to create a Christian Legal Society chapter at Gonzaga, but not the student trying to create a gay student group at Seton Hall?

Rob