The New Hampshire governor has conditioned his support of the state's same-sex marriage bill on the inclusion of robust religious liberty protections, borrowing from a proposal made by our own Rick and Tom (along with three other law profs). As Dale Carpenter puts it, "Make no mistake: a baseline is being established in New England."
Thursday, May 14, 2009
Religious liberty & SSM: establishing a baseline
A new dean for St. John's
Congratulations to Michael Simons, who has been named dean at St. John's, succeeding the late Mary Daly. This should be especially welcome news for MoJers, as Mike has shown a keen interest in the ongoing articulation of what Catholic legal education can and should mean. He has also been a guiding force behind the Journal of Catholic Legal Studies. St. John's is in very capable -- and mission-friendly -- hands.
Catholic legal theory and judicial empathy
With President Obama's coming Supreme Court pick, there has been a lot of talk about judicial empathy. I found Orin Kerr's discussion of the concept to be very helpful. Here's an excerpt:
I think there are two different ways to deal with . . . legal ambiguity. One approach is to see legal ambiguity as cause for judicial weighing. This view sees the role of the judge as narrow. The judge must weigh the best legal arguments on one side and the best legal arguments for the other, and must pick the side that has the better of it, no matter how slight the advantage. If a case is 55/45, them there is a correct answer, because 55 is greater than 45. The position with the greater support in the legally relevant materials wins. Of courser, there may in fact be cases that are genuinely 50.000/50.000, and in those cases, perhaps the judge can pick the side. But those cases are very rare: Even in the hard cases, there is usually one side that emerges as slightly stronger than the other.
That's one approach, at least. The other approach is to see legal ambiguity as cause for judicial empowerment. This view sees the judge as dutifully following the law when the law is clear. But as soon as there is some ambiguity, and the law is unclear, then the judge is free to decide the case however he wants. You don't wait for a case to be truly 50/50 for this. So long as there is some appreciable legal ambiguity, there is no clear "correct" answer. Maybe 70/30 is enough, or maybe even 75/25 will do. Either way, the lack of a "correct" answer means that the judge can rule in a way that furthers whatever normative vision of the law that the judge happens to like.
I think there is a legitimate role for judicial empathy at the trial court level (particularly when pro se litigants are involved), but I get a little nervous about calls for empathy when it comes to Supreme Court nominees. Is there a place for judicial empathy in Catholic legal theory? Does it matter what the context is? Wasn't Brown v. Board of Education driven by empathy, not just the weighing of legal merits? How about Meyer and Pierce? Is the recognition that "the child is not the mere creature of the state" as a rationale for a judicial decision driven solely by legal merit, or something else? And what about abortion? There are lots of Supreme Court decisions that reflect weak constitutional interpretation, but calls for the Court to overturn Roe v. Wade are not just about remedying bad interpretation, are they? Aren't we also asking judges to empathize with the unborn in recognizing the need to overturn Roe?
Wednesday, May 13, 2009
Gerson on Putnam on American Religion
I have not read any Harry Potter books, so I've never gotten to enjoy the midnight-bookstore-dress-up-as-Dumbledore scene, but I do get very excited for new Robert Putnam books, though I've never been able to inspire many followers to don bowling shoes and wait at Borders with me. Putnam's new book, "American Grace: How Religion is Reshaping Our Civic and Political Lives," sounds like a must-read for MoJ-types. Here's an excerpt from Michael Gerson's preview:
The politicization of religion by the religious right, argues Putnam, caused many young people in the 1990s to turn against religion itself, adopting the attitude: "If this is religion, I'm not interested." The social views of this younger cohort are not entirely predictable: Both the pro-life and the homosexual-rights movement have made gains. But Americans in their 20s are much more secular than the baby boomers were at the same stage of life. About 30 to 35 percent are religiously unaffiliated (designated "nones," as opposed to "nuns" -- I was initially confused). Putnam calls this "a stunning development." As many liberals suspected, the religious right was not good for religion.
The result of the shock and aftershocks is polarization. The general level of religiosity in America hasn't changed much over the years. But, as Putnam says, "more people are very religious and many are not at all." And these beliefs have become "correlated with partisan politics." "There are fewer liberals in the pews and fewer unchurched conservatives."
Friday, May 8, 2009
Protection for the "well formed" conscience
I do think the point of disagreement between Fr. Araujo and me is coming into focus. I do not think that our law's protection of conscience is based -- or should be based -- on whether the conscience in question is "well formed," particularly if that term is defined to mean conformity with Church teachings. From the time of St. Paul, believers have been asked to defer to the consciences of others, well formed or not. (That does not mean we should not aid in their proper formation.) The reason we do not grant conscientious exemption to murder statutes is because there are certain non-negotiable rules required for any ordered society, not because the conscience of the person seeking such an exemption is poorly formed according to Church teaching. The line of military draft cases cited by Fr. Araujo earlier does not show that courts engage in a normative evaluation of the particular conscience's dictates, nor that conscience-based claims that are consistent with a particular religious tradition are privileged over other claims. In Seeger and its progeny, the courts are focused on the role those dictates play in the believer's life and worldview. That's a very different sort of inquiry. It is an explicitly subjective inquiry.
If we want to secure freedom for Catholic Charities to resist laws compelling the provision of contraceptives or the placement of children with same-sex couples (as I do), our argument cannot be, "these institutional claims are the products of well-formed consciences." That argument prevails only as long as the claims themselves prevail politically (in which case there is no need for a conscience-based exemption). The whole point is that, on an expanding variety of issues, the majority of citizens have decided that consciences reflecting Church teaching are not well-formed. Yes, they may be "well formed" according to Church teaching, but the claim for an exemption does not aim at persuading the legislature to embrace the "well formed" judgment as a normative proposition, but to defer to the claimant's own understanding of "well formed." And, unless we're ready to eviscerate the Establishment Clause, we cannot privilege conscience claims that are well formed according to Catholic teaching over claims that are well formed according to other religious (and, depending on our interpretation of the Clause, moral) traditions. In many areas -- e.g., the use of contraceptives -- those criteria will be in considerable tension.
Wednesday, May 6, 2009
Question for Fr. Araujo on conscience
I suspect that Fr. Araujo and I come out on the same side on many of today's conscience debates, but we might get there from different starting points. He writes:
If the person who claims conscientious objector status to either (or both) of these “services” [abortion or contraception] does so by relying on moral principles that are not simply from the “inner voice” but from the objective standard that relies on the rigorous process of right reason, should not his or her claim be protected? I think so, if one relies on the rationale proposed by the Church concerning these and related matters.
And:
To me, protecting the right of conscience well-formed is a win-win situation: those who choose to engage in the controversial and what others deem morally objectionable are entitled to do so because the law says they may; but, those who choose not to participate in the controversial because of what their well-formed conscience instructs can go on with the peace of mind that their well-formed conscience shall not be compromised.
So here's my question for Fr. Araujo: are you suggesting that whether a conscience is "well formed" according to Catholic teaching should be relevant to determining whether it gains protection under the civil law, or are you simply pointing out that it is important for Catholics to form their consciences well? If the latter, I'm on board. If the former, that standard would seem to eviscerate the liberty of conscience. It also, from my reading, stands in significant tension with a good portion of the Catholic intellectual tradition, much of which has emphasized that a person may be culpable for a poorly formed conscience, but not for following that poorly formed conscience.
Obama cannot speak at Catholic prayer breakfast?
From the Washington Times:
[T]he president passed up the fifth annual National Catholic Prayer Breakfast, scheduled for the Washington Hilton and expected to have 1,300 participants. Joe Cella, a spokesman for the effort, said the White House never asked for Mr. Obama to attend.
Mr. Bush did ask to come and always made a few brief remarks. But the new president, Mr. Cella said, would not have been allowed to speak because of a 2004 directive from the U.S. Conference of Catholic Bishops saying that public figures who have taken positions opposing Catholic doctrine should not be publicly honored.
"We'd host him graciously, but we'd not give him a platform to speak," Mr. Cella said.
It seems things are spinning a bit out of control here, and I cannot imagine that the Bishops -- at least the majority of them -- would approve of their statement being construed so as to justify this result. President Obama is not allowed to speak at a Catholic Prayer Breakfast in Washington, D.C.? And President Bush "always" spoke, I assume even after his administration's torture policies were made public? Is this really the way to engage the culture?
Kaveny on conscience
Thanks to Michael for flagging Cathy Kaveny's column and post on conscience. They are both well worth reading. Cathy raises three areas that warrant more discussion:
First, Cathy makes a very important point on our tendency to view conscience through the prism of the underlying issue, rather than as a freestanding, principled commitment:
Those claiming conscience-clause protections must ask themselves a basic question: Am I committed to protecting conscience for its own sake, or simply because it’s the best fall-back option in what I consider to be a fundamentally immoral, even evil, legal and political situation? Many prolife arguments for abortion conscience clauses take this form: “A decent society ought to ban abortion, but at the very least, it ought to protect those morally courageous doctors who refuse to perform it.” This appeal to conscience is provisional. When we are in political power, we will try to ban abortion, when we are out of power, we will claim the protections of conscience.
If our commitment to conscience only extends to the issues we lost on and is not anchored to a broader framework, the other side can easily extinguish our conscience claims when they don't share our view on the importance of the particular issue. Occasionally I hear arguments in favor of conscience protection based on the belief that the underlying issue comports with the natural law. That argument is a non-starter politically, and it is also inconsistent with much of the Catholic intellectual tradition's understanding of conscience.
Monday, May 4, 2009
Religious faith and corporate law in the blawgosphere
Recently my colleague Lyman Johnson hosted a roundtable discussion on religious faith and corporate law here at St. Thomas. The discussion was lively and insightful, featuring contributions from our own Susan Stabile, along with David Skeel (Penn), Gordon Smith (BYU), Ron Colombo (Hofstra), Sarah Duggin (Catholic), Robert Ashford (Syracuse), and Mike Naughton (St. Thomas - Catholic Studies). The conversation is going to continue this week at The Conglomerate, so be sure to check in there early and often.
Saturday, May 2, 2009
Attend church = support torture?
It seems that Christian churches -- including the Catholic Church -- need to do a lot more talking, and teaching, about torture. This survey reports that the more frequently a person attends church, the more likely they are to believe that the torture of a suspected terrorist is morally permissible.
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