Niall Ferguson on "The Regulated States of America"
Recalling Alexis de Tocqueville's praise of American preference for building voluntary associations to work together rather than relying on government, Niall Ferguson writes in the Wall Street Journal that modern American has become "Planet Government." The suffocating effect is not only felt in the economic sphere but in the decline of intermediary associations on matters of religion and morality, charity and community. It is no accident that nations (and states within the United States) with the largest governmental sectors also become nations (and states) with the lowest levels of charitable giving and of religious faith.
The column ends with a prescient quote from de Tocqueville -- and one can readily substitute "spirit of faith" or "spirit of community" for "spirit of free enterprise here:
Tocqueville also foresaw exactly how this regulatory state would
suffocate the spirit of free enterprise: "It rarely forces one to act,
but it constantly opposes itself to one's acting; it does not destroy,
it prevents things from being born; it does not tyrannize, it hinders,
compromises, enervates, extinguishes, dazes, and finally reduces [the]
nation to being nothing more than a herd of timid and industrious
animals of which the government is the shepherd."
Rhode Island is celebrating the 350th anniversary of its royal colonial charter this year. The occasion
reminds me of one of my all-time favorite cases in constitutional law, Luther v. Borden, in which the struggle over the representative failings of the charter (nearly 200 years after it came into being) and all of the attendant political intrigue so typical of the Ocean State was deemed nonjusticiable by the Supreme Court. There aren't too many Guarantee Clause controversies any longer, but you can still spot one every so often. As my former boss, Judge William E. Smith, put it to me: "Not much has changed around here since then."
Have a look at this interesting short piece by Professor Scott Gerber (another law clerk veteran of the US District Court for DRI) discussing religious freedom in Rhode Island. Particularly interesting are Prof. Gerber's points about Rhode Island's complicated history and the distinction between "liberty and license."
Ashgate Publications has just published Feminism, Law and Religion as part of its series on Gender in Law, Culture and Society, edited by Marie Failinger (Hamline), Lisa Schiltz and me. (Each of the three of us also has a chapter in the book.)
With contributions from some of the most prominent voices writing on gender, law and religion today, this book illuminates some of the conflicts at the intersection of feminism, theology and law. It examines a range of themes from the viewpoint of identifiable traditions such as Judaism, Christianity, Islam and Buddhism, from a theoretical and practical perspective. Among the themes discussed are the cross-over between religious and secular values and assumptions in the search for a just jurisprudence for women, the application of theological insights from religious traditions to legal issues at the core of feminist work, feminist legal readings of scriptural texts on women’s rights and the place that religious law has assigned to women in ecclesiastic life.
Feminists of faith face challenges from many sides: patriarchal remnants in their own tradition, dismissal of their faith commitments by secular feminists and balancing the conflicting loyalties of their lives. The book will be essential reading for legal and religious academics and students working in the area of gender and law or law and religion.
Thanks to Greg for this post asking whether we should be concerned about the "surveillance state." His piece raises important questions about privacy and its importance in our civic lives. I would like to add to his list of concerns. I have written here and elsewhere that the threat to privacy is not only limited to the government. I would suggest that private companies' constant tracking of our data, and our compliance with it, is a potentially greater threat to our privacy than the government.
While privacy itself is surely not a uniquely Catholic issue, this dialog underscores a moral dimension to our societal decisions about the privacy regime we are creating. Thus far, it seems we have allowed our privacy to take a back seat to commercial forces, as we have accepted trading our privacy for convenience. Concomitant with this, we have a generation of children "living their lives online," according to the Pew Internet and American Life Project's report on Teens and Social Networking. These children share their names, schools, places they live, and interests in a very unregulated space and with limited guidance (either in public policy or model behavior from adults). While they are concerned about privacy in some contexts, they are relatively unconcerned with third party access to their data. The implications of this for their adult lives, the future ability of the state to monitor its citizens, and the ability of commercial entities to control their choices have yet to be realized.
While this may not seem to have moral implications, I offer an analogy. In the context of environmental concerns, many, including the Holy See, have reframed environmental questions as moral questions concerning the kind of planet we are leaving future generations by failing to consider the costs of our actions. Similarly, in the fiscal context many have questioned the morality of saddling our children with significant debt (whether personal or public). I would suggest that we should also begin asking: what kind of "digital climate" we are leaving our children. If it is a climate in which our children have no place free from institutional monitoring (governmental or commercial), that has implications for their freedom (including freedom of religion), personal and spiritual development, and personal growth which should be considered before the damage is irreversible.
Update on the Home Mortgage Bridge Loan Assistance Act
Hi Friends,
Early last year, amidst our many exchanges over the HHS mandate, I noted with pleasure some progress underway in connection with a truly 'win-win' mortgage bridge loan statute I'd drafted with a friend and colleague at FRBNY. Today I am pleased to be able to report that the same is now S 5035, under consideration in the New York Senate. Here is hoping it passes in what remains of the current legislative session, for reasons elaborated in brief at the previous link and more fully here.
Hope you all are enjoying a truly beautiful weekend like that underway at least here in New Haven today,
It’s good to hear the news (reported by Rick here) that MOJ
continues to grow in popularity. In
doing so it’s also good to recall (as participants have done from time to time)
what Mirror of Justice is all about. In
his inaugural post (which Rick reposted here) Mark Sargent explained that the purpose of MOJ was to
ask whether engagement with
Catholic moral theology, Catholic social thought and the Catholic
natural law tradition [can] offer insights that are both critical and constructive, and which can contribute to the
dialogue within both the legal academy and the broader polity? In particular,
we ask whether the profoundly counter-cultural elements in Catholicism offer a
basis for rethinking the nature of law in our society.
He noted that MOJ would include
“a broad spectrum of Catholic opinion, ranging from the ‘conservative’ to the
‘liberal’, to the extent that those terms make sense in the Catholic context.” Even across this spectrum, however, the term
“Catholic” must refer to something affirmative, essential, and undeniable,
otherwise the term would not be a meaningful descriptive. It would be equivalent to the appearance of a
variable “X” in an equation where the person employing the equation is free to
give “X” any value, any meaning he or she wishes. “Fill in the blank.”
In seeking to clarify the identity
of the MOJ project (or any project) it is often helpful to consider what it is
not.
What MOJ is not about is superficial references to Catholic
identity. What it is not about is a kind
of tribal affiliation with the Church. What
MOJ is not about is avoiding answering difficult questions about law in which
one’s political commitments are challenged in light of what the faith teaches
and science makes clear. What it is not
about is a reference to one’s experience of being a Catholic mother to legitimate
one’s support for the right to kill an unborn child as “sacred ground.”
What MOJ is not about is the kind of trivial, self-serving
and shameful reference to Catholic identity offered by Nancy Pelosi
yesterday.
In light of some reasonable questions in the comments of my faith healing post about the distinction between ordinary recklessness and extreme recklessness showing a wanton disregard for the value of human life of the kind that can support a mens rea of malice (and therefore, in Pennsylvania, a charge of third degree murder), I thought to mention a very recent decision of the New York Court of Appeals upholding the conviction of a defendant convicted of depraved indifference murder. An important caveat: New York has a special, but I think doctrinally useful, history of attempting to pinpoint precisely what the depraved indifference mens rea looks like that does not necessarily map on to Pennsylvania law. But because I believe that the distinction between ordinary recklessness and depraved heart recklessness can only really be understood by comparing the factual particulars in actual cases--and not by recourse to any abstract principle (for those with an interest, I've discussed this issue previously here, here, and here)--and because the facts of the case involve a victim of similar age, the New York case is useful.
In People v. J. Borboni (decided by the Court of Appeals two days ago), the facts showed that the defendant beat a 15 month old child repeatedly around the face and body in a period of about an hour, causing massive damage. The defendant was convicted of what in New York is murder in the second degree (depraved indifference murder of a child) as well as manslaughter in the first degree (intent to cause physical injury to a child; recklessly causing the death of a child). The defendant challenged the sufficiency of the evidence as to both crimes. The standard for conviction of depraved indifference murder is that the defendant evince "an utter disregard for the value of human life," that the defendant "did not care whether his victim lived or died." In addition to that distinct mens rea, the state also needed to prove recklessness as to a grave risk of physical injury or death.
In upholding the conviction for depraved indifference murder, the Court distinguished another case, People v. Lewie (2011), in which the defendant "persistently left her eight month-old son with her boyfriend, whom she knew to be violent and cruel, and the man inflicted numerous wounds on the child, finally causing a brain injury that led to his death," because the evidence was not sufficient to show that the defendant "did not care at all" about her son's safety: "On the contrary, the evidence shows that defendant feared the worst and...hoped for the best." Similarly, the Court distinguished People v. Matos (2012), where the defendant's "intimate partner severely beat her 23 month-old child, resulting in his death" because there was evidence that the defendant did care about her son's life: she "splinted
her son's leg, gave him anti-inflammatory medication, exhibited other measures
to comfort him, and, when she found him bleeding and unresponsive, called 911
for help."
In Borboni, by contrast,
[T]he
jury heard testimony — including medical and forensic proof — that defendant
inflicted injuries on a 15-month-old child by striking or shaking the child so
brutally as to cause four distinct skull fractures. The nature of defendant's
assault on the child rendered his course of conduct more clearly depraved than
had he only suspected that a third party had injured the child. Knowing the
brutal origin of the injuries and the force with which they were inflicted
makes it much less likely that defendant was holding out hope, as Lewie and
Matos perhaps were, that the child's symptoms were merely signs of a trivial
injury or illness....
[T]he
charge of depraved indifference murder here is comprised of more than the
physical assault on the child; it also encompasses defendant's inaction for the
two hours that elapsed between the injuries and death. In light of the child's
vulnerability and utter dependence on a caregiver, defendant's post-assault
failure to treat the child or report his obvious injuries must be considered in
assessing whether depraved indifference was shown. The People demonstrated that
defendant, at the very least, left the child unattended for two hours, either
disregarding, or not bothering to look for, obvious, perceptible signs that the
child was seriously injured. Given defendant's knowledge of how the injuries
were inflicted and his failure to seek immediate medical attention, either
directly or via consultation with his girlfriend, until it was too late, there
was sufficient evidence for a jury to conclude that defendant evinced a wanton
and uncaring state of mind.
The key factual difference between a case like this one and the faith healing case that I discussed yesterday involves the issue of "indifference to human life." I only know what is contained in the report I referenced yesterday, but from those facts, it seems to me that it is very difficult to conclude that parents who believe that God will intervene to save their afflicted child have the same mens rea as someone like the defendant in Borboni. To the contrary, the most plausible conclusion is that they have just the opposite state of mind: they care deeply about their child's well-being and believe that what they are doing is in his or her best interest.
Furthermore, I included the paragraph in Borboni relating to Borboni's delay in reporting the child's injuries to anybody else because it contrasts with what is reported in the faith-healing parents' case. The factual similarity (failure/delay to report in both cases) may mask the issue of motivation. The actor with a depraved heart fails to report on the victim's condition because he doesn't give a damn about the victim. But the faith-healing parents allegedly failed to report because they do care about the child's condition, and they thought that by reporting they would interfere with the child's best chance at recovery.
I emphasize again that I am emphatically not saying that the faith-healing parents do not deserve punishment. And I haven't done the research into Pennsylvania law about depraved heart murder to really know in depth what it requires. But particularly when one is dealing with as fact-specific--and as grave--a crime as depraved heart murder, I also think it's important to try to be precise about the nature of the defendants' state of mind. There are lots of facts still to come out in the Philadelphia case. But in light of what has already come out, there are obvious questions about the appropriateness of a depraved heart murder charge in that case.
Dr. Edmund Pellegrino died yesterday at the age of 92. He was a giant and his passing is a great loss. I had the privilege of introducing him several years ago when he received an award from University Faculty for Life and that was a daunting task. Dr. Pellegrino seemed to have enough accomplishments to fill several careers. Among other things, he served as the Chairman of the President's Council on Bioethics and was a former President of Catholic University. He authored dozens of books and over 600 articles. His work always emphasized the interpersonal relationship between physician and patient and the importance of the virtues. He emphasized fidelity, trust, benevolence, truth-telling, intellectual honesty, humility, courage, and the suppression of self-interest. In a speech of his, he mentioned that the most effective teachers are the ones who lead by example. By all accounts, Dr. Pellegrino's inspiring example has influenced countless young doctors to understand their obligations to their patients and to understand the importance of doctors who work for the true good of their patients. He was also noted for his humility and for his warm human qualities.
We're No. 22 . . . We're No. 22 . . . And we are gaining ground quickly on "Constitutional Law Prof Blog" and "Turtle Talk." Spread the word, tell your friends!
Tom Farr's congressional testimony about the International Religious Freedom Act
Tom Farr -- the first Director of the State Department's Office of International Religious Freedom testified before Congress the other day on the implementation of the 1998 International Religious Freedom Act. It's bracing, and important, reading. Here's a bit:
[T]he first question: why does the United States promote religious freedom in its foreign policy? Can it enhance our national security?
The most immediate answer is that in 1998 Congress passed the International Religious Freedom Act (IRFA) which mandated the initiative. IRFA established a State Department office of international religious freedom, put a very senior diplomatic official (an ambassador at large) at its head, and created an independent U.S. Commission on International Religious Freedom to provide separate policy recommendations and act as a watchdog. The law also encourages, but does not require, the use of foreign aid to advance religious freedom abroad.
But what’s the rationale for IRFA and the institutions and procedures it establishes? What do we hope to accomplish?
First and foremost, I believe that advancing religious freedom is simply the right thing to do. Unjust restrictions on religious individuals and groups, as well as violent religious persecution, have steadily worsened in recent years. The results have been catastrophic for many people and many societies.
Studies by the Pew Research Center demonstrate that, as of 2010, 75 percent of the world’s population lives in countries where religious freedom is severely restricted. That’s three-quarters of the world’s people. And there is no sign things are getting any better.
Millions are vulnerable to violent abuse, such as torture, rape, “disappearance,” unjust imprisonment, and unjust execution, because of their religious beliefs and practices, or those of their tormentors.
Today in the "breast cancer gene" case (Association for Molecular Pathology v. Myriad Genetics), the Court unanimously held that a naturally occuring gene sequence cannot be patented simply because it has been isolated from other parts of the overall DNA sequence; it falls within the principle that one cannot patent a product of nature. At the same time, the Court also unanimously held that cDNA, a synthetically produced version of DNA with the elements ("introns") removed that do not "code" to produce amino acids and proteins, is not barred from patentability by the "product of nature" doctrine. The opinion is here. Coverage from the SCOTUS Blog, with directions to other coverage, is here and here.
A very quick comment: The opinion upsets the practice of the Patent Office practice of handing out patents on gene sequences themselves (while leaving the biotech industry with other means of securing returns on investment). The line between naturally occurring phenomena and human creations is not always easy to draw, and the Court's language includes several ambiguities; and one can argue that the Court should have excluded the synthetic "cDNA" as well. But the decision does reaffirm a meaningful exclusion of "products of nature" from patentability in this context, which is both consistent with our deep moral traditions and important for patent policy. It limits a patentholder's ability to get expansive control over all the uses of a gene sequence for testing, therapies, counseling, etc. It also harmonizes in general with the notion, strongly supported by our theological traditions, that features of nature are not subject to human ownership: they are left by the Creator for the use of all. (Particular instances of them can be owned--I can own a naturally occurring tree, but not the DNA sequence that generates such a tree--although that matter is different of course with human beings.)
There is an awful and very difficult criminal case proceeding in Philadelphia involving parents who failed to obtain emergency medical care for their 7 month-old child. The child died of bacterial pneumonia and dehydration. The parents have been charged with third degree murder as well as involuntary manslaughter.
In this post, I want to focus on the murder charge. Pennsylvania uses the common law term, "malice," to describe this type of murder. In Pennsylvania, murder in the first degree is done with the specific intent to kill; murder in the second degree is felony murder; and murder in the third degree is a catchall category for all other murders done with malice. In Commonwealth v. Overby, 836 A.2d 20 (Pa. 2003), the Pennsylvania Supreme Court affirmed the following jury instruction involving the charge of murder in the third degree: "Malice in Pennsylvania has a special meaning. It does not mean simple ill will. Malice is a shorthand way of referring to the three different mental states that the law requires as being bad enough to make a killing murder. Thus, a killing is with malice if the killer acted, first, with an intent to kill, or second, an intent to inflict serious bodily harm, or third, a wickedness of disposition, hardness of heart, cruelty, recklessness of consequence, and a mind regardless of social duty indicating an unjustified disregard for the probability of death or great bodily harm and an extreme indifference to the value of human life. A conscious disregard of an unjustified and extremely high risk that his action might cause death or serious bodily harm." In New York, the equivalent of Pennsylvania's third category of malice goes by the name, "depraved indifference" murder (that is, implied malice murder), which I've talked a little bit about before. The parents face up to 40 years in prison if convicted of third degree murder.
In the report noted above, there seem to be two different defenses offered by the parents. But the defenses are conflated in the story in a way that makes it confusing to understand what seems to be the key issue with respect to the murder charge--the parents' mens rea.
The first defense is that they "did not know their baby was sick enough to die." This is a defense that sounds in ignorance. The idea is that if someone lacks sufficient education or background knowledge to form the requisite state of mind, he cannot be charged with a malicious state of mind. Though the parents may have been negligent in the ordinary tort law sense of the phrase, that negligence does not rise to the level of the sort of wanton, 'don't-give-a-damn' recklessness that is necessary to sustain a charge of murder. One highly problematic factual issue with respect to the ignorance defense in this case seems to be that this has happened before. The story reports that four years ago, the parents' two year-old child also died of bacterial pneumonia. Given this history, the defense of sheer ignorance becomes much less plausible, and the charge of wanton recklessness more plausible. If the defense is simply lack of knowledge, then there is a case to be made that when the very same disease afflicts a second child, it becomes more difficult to argue that the parents were not consciously disregarding a very high risk of death or serious bodily harm to the child in a way manifesting extreme indifference to the value of human life.
But things might be different with respect to the second defense: that they believed and trusted that God would heal their child. Here the idea would be that notwithstanding what had happened in the past, they continued to believe that God would intervene to stop death. And the reason that they failed to report on the child's condition to state authorities was not that they were unaware that the child's condition was mortal, but that the power of God's "cure" would be compromised if they reported. (Incidentally, some people have argued that exempting parents from the full arsenal of criminal liability will make it more likely that parents will fail to report. But I'd like to see the statistics supporting those claims: as a matter of intuition--I have not studied the matter--it's not clear to me that the incidence of failure to report will increase unless the full range of criminal liability is brought to bear).
One might argue that the charge of third degree murder based on extreme indifference to the value of human life is equally applicable here. But I am not so sure. If the defense is accurate, then it seems to me that what the parents manifest is not indifference, but true (from their perspective) concern. There may be exceptional cases of course--parents who truly do desire the death of their children. But as a general matter, from the parents' perspective, they are not consciously disregarding an unjustifiable risk in a way that manifested their extreme indifference to the value of human life. They were consciously doing what they believed was in the best interests of their child. When the defense is ignorance of the danger of a particular disease, though the defense might work in the case of the first child, that ignorance becomes much more difficult to claim in the case of a second child suffering from precisely the same medical condition as the first. But when the defense is belief in the power of faith healing, it does not seem to me that the same mens rea progression is at work. In fact, the parents may believe that the risk to their children is not great, but very small, just in virtue of their belief that though things may look bad, God will intervene. The fact that God did not intervene last time does not vitiate the chances that he will probably intervene this time.
In sum: (1) the faith healing defense seems to me stronger in this case than the defense of ignorance; (2) it does not seem to me that, if one accepts the faith-healing defense, the parents are in the same category as other people who act with wanton disregard for the value of human life; and (3) the truly tough question is whether these parents are different from other parents whose gross neglect results in their children's death.
Should We be Troubled about the “Surveillance State”?
Catholic
teaching affirms the moral weight of privacy and confidentiality, as a matter of
respect for human dignity. As the
Catholic Catechism says, even beyond the special protection of professional secrets,
“private information prejudicial to another is not to be divulged without a
grave and proportionate reason.”
Having now
been identified in The Guardian as
the “whistleblower” on the National Security Agency’s (NSA) surveying data from
internet traffic, 29-year-old defense contractor employee Edward
Snowden says that he was willing to sacrifice his high-paying job and a
comfortable life in Hawaii “because I can’t in good conscience allow the US
government to destroy privacy, internet freedom and basic liberties for people
around the world with this massive surveillance machine they’re secretly
building.”
Others have
responded that this is much ado about nothing, with little danger to privacy. As one commentator assures us, “Calm down,
folks. Big Brother is not watching you.”
Still, as
more comes to light about the secret surveillance programs, such assurances are
increasingly less than reassuring.
At first we were told that only metadata was being collected about international telephone calls -- lists of phone numbers called from another phone number, etc. Probable cause would have to be shown to
obtain a court warrant before anyone could actually listen in on a telephone
conversation -- although apparently only if national security personnel concluded that someone inside the United States was on one end of the call.
But then we
learned that internet databases are being mined by the NSA, producing a massive central collection of data that may include all Americans, as well as foreign
individuals. While the only legitimate targets
for data searches may be foreign individuals and foreign internet communications, the large national
security fishing net sweeps up Americans as well. We are promised that domestic fish will be tossed back into the virtual sea.
In an editorial more than a decade ago, criticizing the Bush Administration’s similar “Total Information Awareness” program, Ben
Stone (the head of the Iowa Civil Liberties Union) and I argued:
When law enforcement has a particular reason to suspect that
an individual is violating the law, the government always has had the option of
obtaining a search warrant or issuing a subpoena to secure information crucial
to an investigation of an actual crime, including obtaining consumer
information from credit-card issuers about recent charges on cards, from
internet service providers about activities on computers, etc.
But the government may gather that information only when it
has a basis to believe that an identified person is engaged in criminal
activity. To allow the government to
assemble a detailed dossier on everyone in advance is to treat every American
as a criminal suspect.
Nor am I
much comforted by the supposed reservation of this database to targeting
foreign individuals for national security reasons. We are told the government may trove through its
comprehensive data collection for information on an individual only if it believes
that person is foreign. The data sifting
methods supposedly “are designed to produce at least 51 percent confidence in a target’s ‘foreignness.’" By that measure, a rather large and
non-trivial percentage of the specific individualized data profiling ends up
being assembled (mistakenly we are told) on Americans.
Some MOJ readers may be interested in a paper I just posted to SSRN (here): "The Morality of Human Rights". This is the abstract:
In
the period since the end of the Second World War, there has emerged what never
before existed: a truly global morality. That morality — which I call “the
morality of human rights” — consists not only of various rights recognized by
the great majority of the countries of the world as human rights, but also of a
fundamental imperative that directs “all human beings” to “act towards one
another in a spirit of brotherhood.” The imperative — articulated in the very
first article of the foundational human rights document of our time, the
Universal Declaration of Human Rights — is fundamental in the sense that it
serves, in the morality of human rights, as the normative ground of human
rights.
I begin, in the first section of this essay, by explaining what the term “human
right” means in the context of the internationalization of human rights. I also
explain both the sense in which some human rights are, in some legal systems,
“legal” rights and the sense in which all human rights are “moral” rights.
Then, in the longer second section, I turn to the inquiry that is my principal
concern in this essay: Why should one take seriously the imperative that
serves, in the morality of human rights, as the normative ground of human
rights? That is, what reason or reasons does one have, if any, to live one’s
life in accord with the imperative to “act towards all human beings in a spirit
of brotherhood”?
This essay, the final draft of which will be published in a symposium issue of
the San Diego Law Review, was my contribution to the conference on “The Status
of International Law and International Human Rights” that was held at the
University of San Diego School of Law on May 3-4, 2013, under the auspices of
the School’s Institute of Law and Philosophy. Some of the material in this
essay is drawn from my new book, Human Rights in the Constitutional Law of the
United States (2013). Most of the material here that is not drawn from my book
was first presented in a lecture I was honored to deliver at Santa Clara
University in March 2013, under the auspices of the Bannon Institute of the
Ignatian Center for Jesuit Education.
“When
I think about the
Church’s social teaching, I love to
recall some words that Albert Camus ... addressed to a group of
Dominicans who
invited him to come and speak to them at the end of the Second World
War. Camus said he would discuss the problem of
evil in life, as he understood it as an agnostic. He closed his talk,
as I recall the story,
with this thought: ‘It may not be
possible for us to create a world in which no innocent children suffer,
but it
is possible to create a world in which fewer innocent children suffer.
If we try to do that, if we look to the
Christians and do not find help, where else will we go?’” --Bryan
Hehir, "Wanted: A New Global Order," The Tablet, Dec. 1, 2001,
at 1700, 1702.
Cooperation with evil and setting the terms of engagement
In this post, NCR's Michael Sean Winters observes, in the course of discussing the HHS lawsuits and the activities of the USCCB in support of religious liberty, that "[the Amish] model is not our Catholic tradition. We do not shut out the world, we engage it." This observation is connected to his concern that the bishops and other critics of the HHS mandate have over-emphasized the issue of culpable "cooperation with evil," and thereby lost sight of the fact that "[t]here is simply no way to engage a sinful world without somehow participating, even cooperating, in the evil in the world." The very reason, he continues, the Church has carefully developed and deployed the notion of "remote material cooperation with evil" is "testimony to the Church’s tradition of going out into the world and not becoming an Amish-like sect."
I have described the nature of the burden that the HHS mandate imposes on Catholic institutions in terms of integrity, mission, witness, and character, and not in terms of "cooperation with evil," because I think it is important to remember that "religious freedom" involves more than a guarantee that the political authorities will not require us to sin. The mandate burdens the religious freedom of, say, the University of Notre Dame, in a way that violates federal law, even if the University can and does end up complying with it. (I think that Michael and I agree on this point.)
A point I would add to his post, though, is this: It is true that the Church, and Christians, can and must be "engaged" in and with the world. Some are called to the monastery and the cloister, but I take it that the Church's mission is to fulfill the Great Commission and to live out Matthew 25. That said, there is no reason for the bishops to accept or take as given the state's increasingly aggressive efforts to "set the terms" of that engagement in ways that require the Church's social-welfare activities to be secularized, or to mimic the activities of state agencies. It is not "sectarian," or culture-warrior-ish, or narrow, or Puritan, or Amish for the bishops to say, "look, we are going to stay here, in public, and feed the poor and fight for justice. And, we'll play by the rules as we do so. But, those rules need not and should not require us to secularize and they should not proceed from the premise that religion belongs in private or that social-welfare work somehow belongs to the state." Those who are insisting that the bishops should not allow a misguided and unrealistic desire for purity to cause them to shut down important social-welfare activities rather than submit to legal conditions have a point -- i.e., these activities are important and it would be a big deal to abandon them rather than comply with these conditions -- but they should not lose sight of the fact that these conditions are contigent, not given, and they should join the bishops in doing all they can to oppose conditions that needlessly burden the mission and character of religious institutions.
Here's George Weigel, at First Things, writing about the anniversary of Pacem in Terris. Among other things, he notes:
The second enduring impact of Pacem in Terris was to have inserted the Catholic Church fully into the late-modern debate over human rights, aligning the Church with those human rights activists who played key roles in bringing down the Berlin Wall and ending communist tyranny in Europe—a historic transition that made “peace on earth” (including the disarmament called for by John XXIII) more of a reality. Like many United Nations documents, and like subsequent Church statements, Pacem in Terris engaged in “rights talk” rather loosely, with virtually every imaginable social good being described as a “human right.” That has led to some enduring issues, even problems, in the explication of Catholic social doctrine. But matters of conceptual precision notwithstanding, there should be no doubt that the Church’s deployment of the language of “human rights” has helped magnify its moral voice in world affairs.
I remember, in college, confidently asserting to my mentor and philosophy teacher, who was supervising my senior thesis, that "rights talk" was problematic, etc. He said (and this was at Duke!), "you should read Pacem in Terris." Good point.
Here is a news story that might shed some additional light on the matter about which Susan and Patrick have just posted. It comes courtesy of a newspaper about which I am not particularly enthusiastic, but which at least exhibits the journalistic virtue of attempting to report events in neutral terms uncolored by the 'hermeneutic of suspicion.'
Patrick's post about the AID's involvement in a partnership to address LGBT issues around the world laments that "U.S. taxpayers' dollars are being spent to advocate internationally for laws and policies that most Americans still oppose and that, what is more, violate the moral law."
I think he overstates the objection tremendously. The specific things listed as being of concern in the AID's announcement of the partnership are the fact that LGBT behavior is criminalized in 85 countries, seven of which impose a death penalty for same-sex sexual activity and that a large number of countries do not punish anti-gay discrimination. I think one would be hard put to claim that most Americans think same-sex behavior should be criminatlized or subject to the death penality and I see no violation of moral law in fighting against such laws. And (appreciating that people can have different views as to what constitutes discrimination, even the Catholic Church believes that people should not be discriminated against) because of their sexual orientation.
The United States is not representative of the rest ofthe world. The big fight here is about gay marriage. In other parts of the world homosexuals risk harm from third parties and their own governments because of their orientation.
I'd like to know a little more about the specific plans of the partnership of which the AID is a part before coming to the conclusions Patrick does.
"A real game-changer," that's how Claire Lucas, senior advisor to the U.S. Agency for International Development (USAID), described the Obama administration's new program to train activists on behalf of homosexual causes around the globe. Here is the story . Trouble is, it's not a "game," and no one should be fooled into treating it as one. U.S. taxpayers' dollars are being spent to advocate internationally for laws and policies that most Americans still oppose and that, what is more, violate the moral law.
And speaking of law, consider the following conclusion of Ursula Cristina Bassett concerning what ensues, as a matter of historical fact, upon legal recognition of homosexual union: “It quickly became clear that legalising same-sex marriage required a revolution to our internal law. It impacted laws regulating public order, identity, gender, rules of kinship, filiation, marriage, names, marital property arrangements, divorce, alimony, parental rights, succession, domestic violence, adoption, artificial reproductive techniques, surrogate motherhood, liberty of conscience, criminal law, tax law and employment law, among other topics. All of these subjects would need to be attuned to the gender-neutral paradigm ... same sex marriage law in Argentina has turned the law upside down—no stone has remained unturned”. Basset's work was recently considered by the British Parliament (here at column 947) before it voted, in effect, to leave "no stone . . . unturned."
While many are busily "dialing it down," including a growing number of equivocating and misleading Catholic prelates (e.g., Belgium's Cardinal Danneels), the players of the "game" that is no game at all are positioning things to leave no stone unturned. The purveyors of the Church of Nice are complicit, alas, in the creation of an unCatholic world order.
Section on Law and Religion Call for Papers for January 2014 AALS Annual Meeting Program:
“Cooperating With Evil, Complicity with Sin”
From Alan Brownstein and Joel Nichols, Program Chairs for AALS Section on Law and Religion:
The AALS Section on Law and Religion invites the submission of papers or abstracts (no more than 5 pages) for the purpose of selecting one or two speakers for a panel at the Section’s program at the January 2014 AALS annual meeting in New York. The program is scheduled for Saturday, Jan. 4, 2014, from 2:00-3:45. Other invited speakers will also be on the panel. The program description follows:
What does it mean for religious believers and groups to refrain from “cooperating with evil?" When does involvement with government action rise to condoning it? And who decides whether a religious objector is “participating” in and thereby "complicit" with religiously objectionable conduct? Such questions play a central role in the HHS contraceptive mandate debate but they arise in other controversies as well – ranging from religious objections to same-sex marriage to the conscience claims of pharmacists opposed to stocking or selling abortifacients.
Numerous doctrinal issues are relevant to a discussion of this problem. These include whether allegations of moral complicity satisfy the “substantial burden” requirement a RFRA or free exercise claimant must satisfy, and how courts should take attenuated causation questions into account if a substantial burden is found to exist. Other questions relate to the concern that an expansive conception of moral complicity may extend so broadly that general accommodation statutes (or constitutional interpretations) would become unacceptable in their scope and unmanageable in their operation. This panel will explore these and other problems arising from the relationship between conceptions of moral complicity and the evaluation of religious liberty claims under constitutional or statutory law.
Submission Deadline and Procedures: Deadline is August 15, 2013. Abstracts should be submitted by email to Joel Nichols, Univ of St. Thomas (MN) School of Law, joel.nichols@stthomas.edu
Proposal Requirements: An abstract of not more than five pages, or a completed paper.
Presentation and Publication: Any speaker chosen from this call will be expected to produce an original substantial paper, or to have already produced a substantial paper, a draft of which will be available to be posted on the AALS web site prior to the annual meeting and that will be published in the University of St. Thomas Law Journal(MN) during the 2013-14 academic year.
Selection and Eligibility: Selection will be by blind review. Under AALS rules, only full-time faculty members of AALS member law schools are eligible. Faculty at fee-paid law schools; foreign, visiting, and adjunct faculty members; graduate students; fellows; and non-law-school faculty are not eligible. AALS rules require any speaker to pay the annual meeting registration fee and travel expenses.
Immovable ladders, the Church of the Holy Sepulchre, and property rights
This piece, from Slate, by "Atlas Obscura," is wonderful. Was "Andy" striking back at the heavy hand of status-quo bias, trespassing, stealing, occupying, or -- like that French archeologist in Raiders of the Lost Ark, messing with things best left alone?
A ministerial-exception case to watch in Cincinnati
The Washington Postreports that a jury found that the Archdiocese of Cincinnati unlawfully discriminated against a Catholic-school teacher whom it fired after she became pregnant via artificial insemination. The jury awarded the teacher more than $170,000 (including $100,000 in punitive damages). The trial court had disallowed the ministerial-exception argument because the "computer technology teacher" had no "ministerial duties."
The Archdiocese also argued that the teacher was fired for not complying with her contract, but the fired teacher, "who is not Catholic, had testified she didn’t know artificial insemination violated church doctrine or her employment pact. She said she thought the contract clause about abiding by church teachings meant she should be a Christian and follow the Bible."
As many (including several of us here at MOJ) have noted, the Supreme Court's important ruling in Hosanna-Tabor did not resolve the debate over the scope and coverage of the ministerial exception. My own view is that a teacher -- of any subject and whether or not that teacher is Catholic -- in a diocesan school is a "minister" but . . . stay tuned.
Check out Claudia Haupt's first post over at CLR Forum. Claudia is a fellow at Columbia Law School and the author of a fine book dealing with the law and religion regimes of the US and Germany. Her post makes a very interesting comparative point about "neutrality" in the law and rhetoric of the US and Germany. As she puts it, "From a comparative perspective, it might be tempting to assume that the courts say the same thing about the relationship between church and state, because they are both using the term neutrality. But we have to look beneath the surface. The meaning of neutrality evolved contextually, separately in each system. If we take the language of neutrality at face value, without regard to history and context, we fall into the convergence trap: we see one thing that looks just like the other thing, and we assume they’re substantively the same."
Claudia is right that the meaning of a term like neutrality cannot be properly assessed without reference to cultural and historical particulars. The use of the same term inter-culturally creates a mirage of convergence. But an additional difficulty may be that the term lends itself to multiple and (at times) conflicting interpretations within the same legal and cultural system. That can create confusion about a term's meaning as well. At least, this is what I argue in Chapter 2 of The Tragedy of Religious Freedom.
ADDENDUM: I was also reminded of this example from Joseph Raz's The Morality of Freedom (121-22):
Imagine that the Reds are fighting the Blues. We have no commercial or other relations with the Blues, but we supply the Reds with essential food which helps them maintain their war effort. If we want to be neutral, should we continue normal supplies to the Reds or should they be discontinued? If we continue supplying the Reds, we will be helping them more than the Blues. If we discontinue supplies, we will be hindering the Reds more than the Blues. (I am assuming that even if similar supplies to the Blues will help them, continuing not to help them is not hindering them.)....The[se cases] form a special class where, in the circumstances of the case, not helping is hindering....In [them] two standards of neutrality conflict.
