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, August 27, 2009

Is religious liberty about inclusion by the state or competition with the state?

Toronto law profs Ayelet Shachar and Ran Hirschi have posted their paper, "The New Wall of Separation: Permitting Diversity, Restricting Competition."  From the abstract:

In recent years, the specter of litigants turning to religious or customary sources of law as authoritative guides to regulate their behavior, alongside or in lieu of secular norms, has risen to the forefront of politics in many countries worldwide. In this essay, we draw upon citizenship theory and comparative constitutional jurisprudence to identify two different categories of judicial response to religious-based claims for recognition, accommodation, and exemption: 1) 'diversity as inclusion;' and 2) 'non-state law as competition.'

As long as legal claims for accommodation are not seen by courts as challenging the lexical superiority of the constitutional religion itself ('diversity as inclusion'), they stand a fair chance of success. Contrast that with the unyielding reluctance of legislatures and judiciaries to accept as binding or even cognizable any potentially competing legal order that originates in sacred or customary sources of identity and authority. This pattern of clamping down and refusing to accept any alternative sources of regulation becomes particularly visible where the legal challenge at issue is interpreted as raising doubts regarding which set of norms and institutions, or what set of high priests, should have the final word in authoritatively resolving legal disputes within a given society ('non-state law as competition'). This is a challenge that no secular legal order, no matter how tolerant and otherwise open to providing exemptions and accommodations to religious believers, can accept with indifference. For what perceived to be at stake here is the very authority and source of legitimacy of the accepted civil religion.

Is this "wall of separation" one that Catholic legal theory would support?  I have not read the paper, so I'm not entirely clear when the secular legal order's recognition of the binding nature of other normative claims on particular segments of the citizenry constitutes  "inclusion" or represents "competition."  The Church would support foundational rule of law concepts, but obviously insists on space in which citizens can live out their allegiance to claims that do not emanate from the state.  So is this framework helpful for navigating any of the tensions in American law, or just in societies grappling with more explicit questions of political pluralism, such as Canada and South Africa, both of which are discussed in the paper?  (It must be helpful for something, since it received Solum's seal of approval.)

Monday, August 24, 2009

Imaging a post-gender world

Bennett Capers looks at the Caster Semenya case (the South African runner whose gender has been challenged) as another example of society's exclusion of certain segments of the population through binary classifications. 

Thursday, August 20, 2009

Why doesn't Dershowitz's question deserve an answer?

In fairness to Prof. Dershowitz, I do not think he is scolding Justice Scalia for, as Rick puts it, "not being more aggressive about incorporating the moral teachings of the Roman Catholic Church into the constitutional doctrines of the United States Supreme Court."  Dershowitz is referring to Justice Scalia's assertion in First Things that he would have to resign from the bench if he was morally opposed to the death penalty.  Back in 2002, Scalia wrote:

But while my views on the morality of the death penalty have nothing to do with how I vote as a judge, they have a lot to do with whether I can or should be a judge at all. To put the point in the blunt terms employed by Justice Harold Blackmun towards the end of his career on the bench, when he announced that he would henceforth vote (as Justices William Brennan and Thurgood Marshall had previously done) to overturn all death sentences, when I sit on a Court that reviews and affirms capital convictions, I am part of “the machinery of death.” My vote, when joined with at least four others, is, in most cases, the last step that permits an execution to proceed. I could not take part in that process if I believed what was being done to be immoral.

Dershowitz raising this does not suggest that Catholics must incorporate Church teachings into the Constitution in order to be good Catholics.  Scalia's assertion focuses on the judge's duty to conscience in the face of a directly conflicting legal/professional obligation.  I think Dershowitz's question is a valid one: if moral opposition to the death penalty requires resignation for a judge who is required to preside over the death penalty, why doesn't moral opposition to the killing of an innocent person (who appears at the habeas hearing with the wife he's accused of murdering) require resignation?

Wednesday, August 19, 2009

Dershowitz vs. Scalia on Catholic social teaching

One of the highlights of my first year of law school was when my Criminal Law class signed a petition asking Justice Scalia to attend one of our class sessions and debate our professor, Alan Dershowitz, who was always challenging Scalia's views on the Constitution without the Justice being around to defend himself.  To our surprise, Scalia accepted and called Dershowitz (who did not know about our invitation) to let him know that he was going to have a visitor in class.  I had a front row seat for a rollicking debate.

History may be repeating itself, and the coming debate, if it happens, should prove to be even more interesting for those interested in Catholic legal theory.  Details here

Could natural family planning satisfy the EEOC?

Regarding the situation facing Belmont Abbey College, a reader asks:

If a Catholic institution provided coverage for NFP training (but not contraception) would that legally satisfy the EEOC’s complaint?   In other words, I understand that the EEOC could make an issue out of not providing coverage for family planning, but could they reasonably dictate the types of family planning procedures that must be covered?  Wouldn’t it be beyond the competency of the EEOC to dictate particular medical procedures (rather than require access to a certain type of care)?  Isn’t it sufficient—for legal purposes--that an institution provide family planning coverage of some kind?

UPDATE: I am not an expert on this area of law, but my guess is that the EEOC would not deem the coverage of NFP services sufficient, for three reasons: 1) prescription contraceptives are used for purposes other than pregnancy prevention; 2) even though employers cover other means of pregnancy prevention (e.g. tubal ligation), the failure to cover a means of pregnancy prevention that is used only by women has been held to constitute gender discrimination (see, e.g., this EEOC ruling from 2000.), so the EEOC is not focused simply on the availability of means by which to prevent pregnancy; and 3) even in terms of pregnancy prevention, I'm doubtful that the EEOC would view NFP as an effective substitute for prescription contraceptives given convenience factors, etc.

Does anyone with greater knowledge of the law in this area have more insights on this question?

Tuesday, August 18, 2009

Should Belmont Abbey College be required to cover contraceptives?

Once again public officials are mistakenly equating the liberty of conscience with individual autonomy, failing to see the importance of institutional venues for living out shared moral convictions.  Even more discouraging is that the latest mistake appears to have been made in Washington, D.C.: 

Belmont Abbey College president Dr. William Thierfelder said officials at the Charlotte division of the Equal Employment Opportunity Commission (EEOC) told him that a decision to close a discrimination complaint against the school for failing to offer contraception coverage was reversed after the matter went to the nation's capital.

When federal power is harnessed to a misconception of liberty, watch out.

Friday, August 14, 2009

Combat terrorism! Keep religion in the home!

Utah law prof Amos Guiora has posted his article, Religious Extremism: A Fundamental Danger.  I do not think religious liberty is Prof. Guiora's primary area of scholarship, but that is no excuse for some of the assertions set forth in the article.  Here is the abstract:

Given that religious violence constitutes such a grave threat to democracies, governments must begin to examine this institution more critically than they have in the past. Governments are charged not only with protecting civil liberties, like freedom of or from religion, but with protecting their citizens from internal and external threats. This Article discusses the framework modern democratic governments must begin to institute if they are to protect freedom of religion and effectively respond to a unique threat to safety. Five countries - the United States, the United Kingdom, Turkey, Israel and the Netherlands - will be examined. My primary thesis is that civil societies cannot afford to continue to treat religion as an "untouchable" subject - we must begin to understand what religion is in order to know when and how it may be appropriately limited for the benefit of society.

And from the conclusion:

Discussing the public/private religion question is critical in analyzing the limits of freedom with respect to religious practice. Religious practice, after all, suggests religious conduct as distinct from religious belief alone. Religious practice is how religious belief manifests itself; prayer is the liturgy and manner in which a person of faith communicates with his/her deity; speech is communication by a person of faith or religious leader (priest, imam, rabbi) invoking the deity for the purpose of action in the name of religion with respect to religious and non-religious individuals and groups. Private religion—the manifestation of any of the three above in any combination within the home—is the ideal articulated by the American Founding Fathers. The premise was clear: belief, practice and speech with respect to religion in any manner within the confines of your home most effectively balances between the state and religion. Furthermore, private religion protects non-believers from religion. Public religion, however, not only affects the delicate balance between state and religion (religion used here in the generic rather than “Church”), it also conceivably endangers the now vulnerable non-believer.

So practicing my faith in public not only upsets the "balance" between state and religion, but it defies the vision of the Founding Fathers?  Who knew?

Dallas Willard on my mind

I've been thinking a lot about Dallas Willard, who is one of the most thoughtful evangelical Christian writers today and a philosophy professor at USC.  He was one of the featured speakers at the Bible conference I attended last week.  It turns out that Willard was heavily influenced by my great-grandfather, even dedicating one of his books to hiim, and so he had an interest in coming to Iowa to see the conference that my great-grandfather started 75 years ago.  In a series of talks, Willard spoke powerfully and movingly about the Kingdom of God, and how it invariably requires God's grace in our lives -- not just in terms of our ultimate salvation (which is the traditional evangelical emphasis), but in terms of our eternal living beginning here and now.  The problem with the Pharisees was that their focus was on conduct within their control -- not murdering, not committing adultery, etc. -- but Jesus expanded the focus to matters of the heart, to attitudes and dispositions that could not be changed absent God's grace.  So while my kingdom is what I'm doing, God's Kingdom is what God is doing.  When we enter into the Kingdom of God, we let our kindgdom become part of God's Kingdom, becoming dependent on God and focusing not on what I control, but on what controls me -- i.e., matters of the heart.

Then this week, I received the new Pepperdine Law Review devoted to a symposium on the higher law and featuring a short piece by Dallas Willard about why the higher law matters.  This brought to my mind comments Willard made to a group of Christian academics, which you'll see still centers on God's grace (which he defines as "God acting in your life to accomplish what you cannot accomplish on your own").  Here's an excerpt of his advice:

My strategy was this – do really good work. Do work that you would think God had to help you with to get you there, and then do some more. Just stay at it. That’s the only strategy I’ve had is to work in that way. My view is that, if you are in a good field, you must work on the things that are really central and essential to that field. And you ought to believe that God will enable you to do work in that field that will be a benefit and challenge to everyone. . . . what we as Christians want to do — we want to get to the point where people scattered around the academic world are worried about what we are doing. They sit up at night and think about us. They get on the internet, and they chase our work down. I really challenge you to believe that about yourself, whatever your area of work is. Not because you are so good, but because God is so great.

I don’t know anything more to say in terms of how I work, because that’s all there is to it. I try to teach classes well. I pray for my students. I pray as I set up the course schedule and the outline. I pray for them when they come in to interview. They don’t know I’m praying most of the time, but I pray for them, and I pray for the class. I say, "Lord, let this be a class that will really help these students in their work, in their field, in their self-confidence." Because, you know, many of the students I have, especially in the beginning, don’t know they have a mind. One of the things I will do often in a large introductory course is say, "How many of you would like to be known as thinkers?" Of 150 people, you may get 3-4 hands, and those will be tentative. And then I say, "How many of you would like to be known as feelers?" They all want to be known as feelers. So you know that you have to start working to encourage knowledge of what it’s like to learn, to build their foundation, to help them to come to understand how the mind works.

I’m not there to be a witness. I’m there to do a good job as a teacher and writer. I will be a witness. I can’t help that. The only question is, "What am I going to witness to?" And I take a lot of comfort from Jesus’ statement that you cannot hide a city that is set on a hill. So I don’t have to think about it. I have to try to do real good work; and that’s my business – to do real good work. I wouldn’t say it’s the best in the world or anything like that, others can make judgments, but my intention is to do the best work possible. And by that I don’t mean within my human limitations; I also mean God helping me. I’m going to put my human limitations on the line, but my expectation is not from them. I expect to see something happen that I could not possibly do. And I would do that if I were preaching or witnessing on the streets, or doing whatever wherever. I want to see something happen that I couldn’t possibly do. And that’s what I would encourage anyone in the academic line of work to do: to say "I know what good work is. I’m going to do it, and I expect God to help me. I will give my life to it." Of course, I will be a prisoner of Christ; that’s what I am. Because when I am doing my work as a philosopher or a writer, that’s what I’m doing. Of course, I write a lot more in philosophy than I do in religion, but few people read that. That’s kind of the way it is in the academic world, the writing in philosophy helps me in everything else I do. So I really want to do very good work in my field. I guess that’s the simple thing I would say: I just want to do good work.

I’m afraid to say this, because I’m afraid to burden someone else. But I never ask for a promotion. I never ask for money. Of the books I’ve published, all have been solicited from me by the publishers. And I’ll tell you why I have approached things in this way. When I was at Baylor University as a young man, as a very green young man, I was watching other green young men trying to find a place to preach. And the Lord said something very simple to me: "Never try to find a place to speak, try to have something to say."

Also appropriate for academics (at least for me) is Willard's warning that he gave last week: "What our will is directed toward tells someone everything they need to know about us."

Tuesday, August 11, 2009

How should the Church counsel gays?

I was on vacation last week when the American Psychological Association released its report on "reparative therapy" for gays, but I did see the headlines declaring that "Psychologists repudiate gay-to-straight therapy."   The Wall Street Journal has a more nuanced account of the APA's report, noting that the Association said "that it is ethical -- and can be beneficial -- for counselors to help some clients reject gay or lesbian attractions." Get Religion has interesting analysis of the media coverage of the report here and here.

Monday, August 3, 2009

That lovable, zany wedding party dance

I did not intend to stop blogging while teaching in Rome, but the combination of teaching a partially new course, finishing my book edits, and (most significantly) keeping three children from getting run over by speeding scooters meant that something had to give, and that something was blogging.  Now I'm at our annual Bible conference at Lake Okoboji in Iowa, so I have a little more free time.  To avoid pulling any muscles, I'll ease back into this blogging thing by grasping some low-hanging fruit: namely, the burning-up-the-internet-phenomenon of the "dancing wedding party" video.  In case you haven't seen it (and if you haven't seen it, you're only of only 17 people who haven't), here it is.

I got a kick out of it the first time I saw it, but then when I read interviews with various clergy members either applauding the creativity or lamenting the loss of ritual and solemnity, I saw the bigger picture.  In the end, I agree with David Goodman's take in Slate.  Here's his conclusion: 

And so, though I am a writer and half-Jewish, I will be saying traditional vows in an Episcopal church, the very same in which my fiancée’s parents were married. We don’t buy into the idea of the wedding day as the truest expression of our love. It’s more of a rite of passage, and we don’t think rites work when you whip them up on your own, or buy them off the YouTube rack.