Mirror of Justice

Garvey on the mandate and church-state separation

Separation properly understood, that is.  Check it out.  Here's the nice concluding paragraph:

The government has been eager to regulate the behavior of churches in ways more to its liking. It does this by defining religion down, so that only the most rigid and separatist groups are exempt. The rest are, for constitutional purposes, no different from the Jaycees or the Elks Club. We might say that the wall of separation is intact, but the government has made it so small that it encloses nothing more than a flower bed.

What Are We Doing For Those Being Left Behind

[Cross-posted from Creo en Dios!]

When my friend Richard met me for lunch the other day, he gave me a copy of a book title The Other Wes Moore: One Name, Two Fates. The book will be read by all first-year students at the University of Minnesota – Twin Cities this year, and other members of the university community (which includes my friend Richard) are invited to read it along with them. Richard ha an extra copy and thought I might be interested in reading it. He was right. I finished reading it within 48 hours after our lunch.

The book, written by Wes Moore, tells the story of two boys named Wes Moore, one of whom is that author. Both boys grew up fatherless in Baltimore, both had difficult childhoods, both had trouble with the police. But whereas the author grew up to join the military, graduating college with distinction, become a Rhodes Scholar, a White House Fellow and then a successful business leader, the other is serving a life sentence for felony murder.

The book does not try to explicitly answer the question so many people have asked the author: What made the difference between the two Wes Moore’s? How do we explain how two boys with similar backgrounds and identical names ended up in such radically different places?

There is clearly no one answer to that question. It is no more possible to answer it with respect to these two boys than it is to understand why the lives of some people are easier than others. Why do some seem to get all the breaks and others none? Why does every step seem difficult for some and paved for success for another?

One thing is clear, however. As a society we can and must acknowledge that we need to do a better job than we are doing to be sure that all of our young people are given a chance to make the best decisions possible about what to do with their lives. To make sure that everyone has the opportunity to succeed. That no one is viewed as expendable. That we are providing a good education to everyone, not just those with family resources. That no young person views selling drugs or other crime as their only way to make ends meet.

And each of us has a role to play. Whether it is providing necessary mentoring for young people without reliable adult figures in their lives. Or advocating on behalf of the vulnerable. Of contributing resources to those who do. Or finding some other way to make a difference.

The Compendium of the Social Doctrine of the Church speaks of the need to have the good of all people as it primary goal, reminding us that everyone “has the right to enjoy the conditions of human life brought about by the quest for the common good.” It also advises us of the fact that no one is exempt from cooperating in advancing the common good. Right now, a lot of people are being left behind and we can all do a better job of helping them.

In the book, one boy was given a chance and the other wasn't. My heart rejoices for the Wes Moore who had people who went out of their way to ensure that he has options. And my heart grieves for the Wes Moore who will remain in jail for the rest of his life.

Intersection of Graduation Day and Memorial Day

 

Thanks to Tom for this post regarding the wonderful Tom Mengler and his thoughtful reflections on why a Catholic law school should be Catholic. I would like to offer an example of what I think Dean, now President, Mengler referenced.

Earlier this week I was present at our law school graduation mass. It was especially lovely due to bountiful student participation. An acutely poignant moment for me was during the prayers of the faithful, which were read by many individual students. The prayer for members of our military, particularly those who had been killed or injured and their families, was read by a student, Mary, whom I knew to be a veteran. She was also the President of our Catholic Lawyers Guild. As she read those words, I was moved, as I knew that she intensely understood their profound meaning. With less than one percent of Americans in active duty military service, Mary had been asked to serve her country at great sacrifice and risk. She had resisted the social messaging given to her generation (not to mention women of her generation) as well as the easier path of self-enrichment selected by most of her peers, and answered the call of her country. No doubt as she read that prayer, she was keenly aware of the effects of war and its casualties.

That, however, was not the most interesting part of this observation. I had had the pleasure of meeting her mother, also named Mary, before mass. Like many of the graduates' parents, she was beaming with pride. The three of us began talking and I had remembered that the Mary's brother had come to visit our law school class shortly before himself deploying to Afghanistan. I also learned another brother was a fireman. I inquired from the mother if theirs was a military family and was surprised to learn it was not. What inspired her children to follow such paths of service and heroism? "Oh, that was September 11^th," she modestly stated.

It was not just September 11^th. As I talked more to this family and their particularly humble mother, it was clear to me it was so much more. It seemed to me that through her faith, this mother had instilled values of service, sacrifice, and responsibility in her children. So, when an event like September 11^th occurred, they were ready to respond in a way few others do…with their lives if necessary.

This is perhaps an example of what Dean Mengler meant when he said that a Catholic law school should help students "continue on their journeys by searching actively for the truth in their lives." These are the students who come to us. Whether, as I suspect in Mary's case, they come from a Catholic tradition which values service, or from some other community, so many students come to law school searching for that truth in their lives, and understanding that it is found often in serving others. I might suggest that it is one role of a Catholic law school: to continue the work of the students and their mothers and fathers, families, and all those who helped instill in those students such values. The Catholic law school is different because its mission does not end with solely providing intellectual and academic excellence - necessary components of a legal education. Beyond that, it should also be a place that nurtures these students, reinforces and strengthens their resolve to serve, and awakens such a resolve in others. As in Mary's case, they often come to us from fertile ground. We take on an almost sacred responsibility to cultivate that ground, make it more potent, and support it, such that it will bloom even more brilliantly than when it came.

Our conversation ended with Mary's mother saying she "was so excited to see what Mary will do next. I know it is going to be great." I was honored to have met them, honored to have been present for the prayer, and honored that Mary and students like her choose to attend our law school. Catholic law schools, I might suggest, serve an important role of nurturing and promoting the whole student to achieve all the great-- and selfless-- things Mary's mother envisions.

"'Mommy Wars' Redux"

The NYT this weekend published another of its periodic pieces about 'the Mommy Wars',this one really solid summary of the current state of the argument in feminist legal theory, by Dartmouth philosopher Amy Allen.  She ends with this conclusion, the same one I've reached in a lot of my work.  So many of the feminist legal theories & mainstream media debates focus on the psychological or theoretical implications of the 'choice' a relatively few privileged women in this country have between raising a family and taking a paying job, when the more significant issue is a structural conflict:

. . . the conflict between economic policies and social institutions that set up systematic obstacles to women working outside of the home — in the United States, the lack of affordable, high quality day care, paid parental leave, flex time and so on — and the ideologies that support those policies and institutions, on the one hand, and equality for women, on the other hand.

This is the conflict that we should be talking about.  Unfortunately this is also a conversation that is difficult for us to have in the United States where discussions of feminism always seem to boil down to questions of choice.  The problem with framing the mommy wars in terms of choice is not just that only highly educated, affluent, mostly white women have a genuine choice about whether to become über moms (though the ways in which educational, economic and racial privilege structure women’s choices is a serious problem that must not be overlooked).  The problem is also that under current social, economic, and cultural conditions, no matter what one chooses, there will be costs:  for stay at home mothers, increased economic vulnerability and dependence on their spouses, which can decrease their exit options and thus their power in their marriages; for working mothers, the high costs of quality child care and difficulty keeping up at work with those who either have no children or have spouses at home taking care of them, which exacerbates the wage gap and keeps the glass ceiling in place. (Families with working mothers and fathers who are primary care givers avoid some of these problems, but have to pay the costs associated with transgressing traditional gender norms and expectations.)

If the “the conflict” continues to be framed as one between women — between liberal and cultural feminists, or between stay at home mothers and working women, or between affluent professionals and working class women, or between mothers and childless women — it will continue to distract us from what we should really be doing: working together — women and men together— to change the cultural, social and economic conditions within these crucial choices are made.

A Poor Editorial

This is a silly and uninformed editorial.  There are, of course, differences of opinion about the political wisdom of the HHS mandate and resistance to it.  But this editorial is about the legal challenge to the mandate.  And it calls that challenge "built on air."  Actually, it is built on the Constitution and a federal statute, and we'll soon see whether those foundations remain solid enough to support it.

The editorial does mention the Constitution and the federal statute.  But what it says misrepresents both.  It also fails to mention that the original mandate -- and not the putative change in plans alluded to by the President in February -- is at present the law.  The editorial uses Employment Division v. Smith as an argument that the government ought not to accommodate dissenting religious conscience.  And it makes the following colossally stupid statement about RFRA: "In 1993, Congress required government actions that “substantially burden a person's exercise of religion” to advance a compelling interest by the least restrictive means. The new contraceptive policy does that by promoting women’s health and autonomy."  Can anybody figure out how the second sentence follows from the first?  Did anyone at the Times think to check with a lawyer before writing this?  How about a law student?

There are arguments to be made in defense of the mandate.  Surely the government will make them in court.  But this editorial neither makes nor even references any of them.  What an embarrassment.

School's Out

Not Catholic Legal Theory, but an important reminder:

The school year is coming to an end.  Among other consequences of school being out for summer is that families of thousands of children who receive free or reduced-cost meals during the school year have to replace those meals, which puts increased demand on food shelves around the country.

Although demand at food shelves is highest duing the months of June, July and August, donations are usually at their lowest during the summer.  

So please remember to donate generously to your local food shelves, which usually are happy to receive cash as well as food donations.  

Tom Mengler's Legacy: "Why a Catholic Law School Should Be Catholic"

As I write this post, Tom Mengler is finishing his last day as dean at  St. Thomas.  Susan has already expressed the mixed feeling of sadness and peace that we feel as Tom and Mona follow their call to his new position as president of St. Mary's University (San Antonio).  I'm reflecting today joyfully on the many things that the law school has put in motion or carried forward during the 10 years of Tom's leadership--10 of the 12 crucial first years of our institution.  It's fitting, I think, to link to Tom's own description, from his 2009/10 speech and article at Villanova, of "why a Catholic law school should be Catholic" and what has progressed and might progress on that front both among schools generally and at St. Thomas.  From his conclusion:

As we at St. Thomas have together reflected on the core of a Catholic law school, we have tried to focus principally on two reasons why we believe a Catholic law school should be Catholic: the integration of Catholic thought, as well as other religious traditions, in faculty scholarship and throughout the academic program and the encouragement of everyone in the community – students, faculty, and staff – to continue on their journeys by searching actively for the truth in their lives. We believe ultimately that from these twin goals everything that is commonly associated with a Catholic law school follows – an embracing community, a service ethic that is focused on our most vulnerable neighbors, a commitment to the highest professionalism. Grounded in an intellectual, moral, and spiritual formation, we hope to prepare our students for purposeful lives as lawyers and servant leaders of their communities. In so doing, we try to fulfill the mission of a Catholic law school.

Thanks, Tom and Mona, and godspeed.

Gregory VII and Libertas Ecclesiae

In light of the issues of the day, we can hardly let this Friday of Memorial Day weekend pass without acknowledging today's feast of Gregory VII, the great reformer of the medieval church who died on this date in 1085. Here is a short excerpt from a discussion of Gregory's legacy in Alasdair MacIntyre's Whose Justice? Which Rationality? (pp. 159-60):

Gregory's particular reforms were all aimed at enabling the concrete organizational forms of the church to express more adequately this universality and this sovereignty [of the church]. The widespread breakdown in maintaining priestly celibacy and in preventing simony, and the tendency of bishops to value the favors conferred by princes rather than the authority of the papacy, were all understood by Gregory as ways in which sex, money, and political power were used to subvert the independence, the libertas, of the church. So that in his identification of the points at which he found himself compelled to enter into political conflict, most notably with the Emperor Henry IV, what is always in question is a vindication of the ability of the church to determine its own structure in a way that conforms to the sovereignty of God.

Libertas, therefore, is a condition for iustitia, and when both political societies and the universal church are ordered in accordance with justice, the appropriate libertas of each will also have been achieved. In affirming the order of iustitiaagainst those ostensibly Christian secular rulers in the established powers of Europe, the Salian Reichand the France of the Capetian kings, whose aggrandizement violated that order, the second responsibility of Gregory VII's papacy was discharged. The order of iustitia is an order embodied in the universal church, an order in which each human being has his or her own allotted place and his or her own allotted duties. To occupy that place and to perform that function well is to be just. To refuse to occupy that place or to discharge its duties badly or to rebel against the order defining that place is to fail in respect of justice.

Well said, Fr. Ted

Fr. Ted Hesburgh, who just turned 95 (!!), put well and pithily what's going on in the HHS lawsuits:  "I would only say that I think the university is doing what it should do. The government just overreached and overstretched and has to be brought up short," he says.

How Law is Like a Settling House

Paul Horwitz has a very nice post in response to Rick's discussion of Employment Division v. Smith.  Paul recognizes that there are ways to reconcile Smith and Hosanna-Tabor, but he puts together a nifty argument that there are some deeper tensions between the two decisions as well as interesting questions about the relationship of institutional and individual free exercise.

For years before we moved to New York, my wife and I lived in a lovely old nineteenth century townhouse in Boston.  We lived there for about 5 years, and in those years, we noticed gradual shifts in the house's structure, particularly the higher up you went.  The joints between walls would move, overlap -- settle, settle, settle.  The floor would slowly develop a ridge or a depression.  The stairs would gradually slant left, except at the bottom where they straightened out.  An unexpected feature of this process was that settlements in one direction could also slow down, or even reverse course.  Guests who visited only once in a while would not notice these micro-shifts.  Appreciating these changes required the perspective of time.     

In a recent talk that Mike McConnell gave over at St. John's, he said something along these lines: when there is an instability in the law, the likeliest outcome is that over time -- sometimes over a very long time, depending on the quality of the tension -- the law will resolve the instability in one or another direction.  Those shifts are signs of the law settling, and the process of that settling continues without ending point, sometimes changing directions.  Maybe the instability that Paul recognizes will give rise to doctrine over the next 50-100 years that shifts, settles, reshifts, and resettles.  

"Massive lawsuits, minor coverage"

I know, I know -- "conservative" claims about "media bias" are really just disigenuous efforts by Rove-ian right-wingers to distract attention from the awesome power of Fox News, EWTN, and Rush Limbaugh.  Still, as the folks at Get Religion discuss in detail, the near-silence of many traditional media outlets regarding this week's lawsuits by Catholic institutions against the administration is striking (and contrasts glaringly with their consistent and close interest in other kinds of legal proceedings involving such institutions).  It's almost as if -- I know, I know, it's not, but still . . . -- some people with significant power over information flow are trying to minimize, in an election year, the extent to which the word gets out that the administration is being sued by 40-plus Catholic institutions, schools, and social-service agencies for violating fundamental religious-freedom rights.  Of course, this relative silence is for the best, since the blogosphere's armchair lawyers and mind-readers have assured me that the lawsuits are frivolous, premature, divisive, and / or deviously partisan, and we wouldn't want people to get the wrong idea.

A quick response to Winters on conscience and Smith

Michael Sean Winters has been blogging a lot, in recent days, at Distinctly Catholic, about the mandate, the lawsuits, and religious liberty.  In this post -- which is about many things, including the remarks by Bishop Blaire that some are trying to frame as revealing deep partisan divisions on the bishops -- he makes (among other things) two claims that, in my view, are not quite right.

First, there is the claim -- which, I admit, is widely accepted, and accepted by many I respect -- that it is the Smith case, and not the recent acts and decisions of the current administration, that should be regarded as an unprecedented and dangerous assault on religious freedom.  Some make this claim because they believe that Smith represents a wrong interpretation of the First Amendment, I know, but I think that some make it just because it's kind of fun to put Justice Scalia in the religious-freedom-villain hot-seat.  Still, as I''ve probably said too many times, the claim is wrong.  (For an elaboration of my view, go here.)  Smith was contestible, but I think correct, interpretation of a piece of positive law -- one that returned the Court's doctrine to where it had been for most of the previous century -- that, certainly, makes it possible for elected officials to harm religious liberty, but also authorizes and encourages those officials  elected officials to respect and accommodate religious liberty, to the extent possible.  Smith is a "who decides?" case (ed.:  aren't they all?  RG: yes, yes, I know . . . .), not a "religious freedom should lose to state interests" case.

Winters also criticizes calls for respecting and accommodating individual conscience (as opposed to institutions' religious freedom and the freedom of the church).  He writes:

You can cherry pick a couple of sentences out of Dignitatis Humanae, the Second Vatican Council’s Decree on Religious Liberty, to justify such a stance, but my fear . . . is that by emphasizing the right to individual conscience rights, in a culture which understands conscience differently from the way Catholics understand it, the USCCB was unintentionally “feeding the beast” of libertarianism in a political culture where libertarianism is the cancer that most afflicts our Catholic understanding of the Common Good. For us, conscience is the voice of God speaking to us about our moral obligations in the concrete circumstances of our lives. In the ambient culture, conscience is private judgment. Why would the USCCB support an argument that sides with the sixteenth century Reformers on the central issue of their day and our day: Is truth someone we discern and discover, and always together, or is it something we manufacture on our own?

Certainly, I'm a big fan of the Freedom of the Church (Read this.)  And, Winters is right that most in contemporary America -- including, remember, many Catholics who invoke "conscience" as authorization to act not in accord with certain Church teachings -- have an unsound, purely privatized understanding of "conscience."  And, I even agree with Winters that there will, in some cases, be good, "politics is the art of the possible" reasons to distinguish, when crafting religious-liberty accommodations, between exemptions-for-institutions and exemptions-for-individuals.  All that said, it is not "cherry picking" to find in Dignitatis Humanae -- it's right there! -- a clear affirmation of the right of every person to religious liberty:  "This freedom means that all men are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that no one is to be forced to act in a manner contrary to his own beliefs, whether privately or publicly, whether alone or in association with others, within due limits." 

In saying this, the Declaration is not endorsing the private-judgment view of conscience; instead, it is proclaiming that it is an implication of the human dignity of every person that, even when he or she is wrong in religious matters, he is not to be forced "to act in a manner contrary to his own beliefs . . . within due limits."  Winters does not need, I think, to downgrade or link with libertarian and Protestant errors the religious-liberty rights of individuals.  I think it's enough for him to simply remind us that "within due limits" does important work. 

What is a Religious Institution?

One of the more interesting issues in the controversy over the HHS mandate (or perhaps I should say one of the few that hasn't been flogged to death in the blogosphere) is the precise language regarding the scope of the exemption that HHS included for some religious employers. The final rule states that an institution is a "religious employer" for purposes of the exemption if it "meets all of the following criteria:"

(1) The inculcation of religious values is the purpose of the organization.

(2) The organization primarily employs persons who share the religious tenets of the organization.

(3) The organization serves primarily persons who share the religious tenets of the organization.

(4) The organization is a nonprofit organization [under the Internal Revenue Code].

45 C.F.R. § 147.130(a)(iv)(A)-(B).

Not surprisingly, those of us who object to the mandate regard this exemption as impermissibly narrow and, moreover, illegitimate government interference in deciding what does and does not constitute a "religious employer." I'm prompted to make this point because of a comment over at dotCommonweal that the exemption "is deliberately vague, of course, and there are good reasons to object to the way the Department of Health and Human Services designed the exemption--although that the government would try to figure out which institutions are religious and which are not is hardly unprecedented" (and linking to an earlier post on America's blog saying that the langauge of the exemption comes from labor and employment law). A few quick points for discussion:

The language of the HHS mandate is not (pace the author at America's blog and others inclined to view this as rulemaking as usual) borrowed from (and is substantially narrower than) religious exemptions in other regulatory settings such as labor and employment law. NLRB v. Catholic Bishop. 440 U.S. 490 (1979) and lower court interpretations of Catholic Bishop in such cases as Univ. of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002) and Universidad Central de Bayamon v. NLRB, 793 F.2d 383 (1st Cir. 1985) (en banc) stand for the proposition that the state cannot (as a matter of statutory interpretation of the NLRA operating under a doctrine of constitutional avoidance) pick and choose which church-affiliated institutions are "sufficiently" or "completely" religious. See also Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 343 (1987) (Brennan, J., concurring in the judgment) ("[D]etermining whether an activity is religious or secular requires a searching case-by-case analysis. This results in considerable ongoing government entanglement in religious affairs. Furthermore, this prospect of government intrusion raises concern that a religious organization may be chilled in its free exercise activity. While a church may regard the conduct of certain functions as integral to its mission, a court may disagree.”)

In employment law, cases such as LeBoon v. Lancaster Jewish Community Center Ass'n, 503 F.3d 217 (3d Cir. 2007), hold that the exemption for religious institutions from Title VII's prohibition on discrimination based on religion is reasonably broad. As Judge Roth puts it in LeBoon:

First, religious organizations may engage in secular activities without forfeiting protection under Section 702....

Second, religious organizations need not adhere absolutely to the strictest tenets of their faiths to qualify for Section 702 protection....

Third, religious organizations may declare their intention not to discriminate, as the LJCC did to the United Way and in its employee handbook, without losing the protection of Section 702....

Fourth, the organization need not enforce an across-the-board policy of hiring only coreligionists....

We disagree with LeBoon's contention that the LJCC's willingness to welcome Gentile members and even to host Hindu services is incompatible with the view that the LJCC was a religious organization. Indeed, these characteristics are clearly tied to some of the Jewish principles that guided the LJCC-tolerance toward other faiths, healing the world, and doing the right thing. We will not deprive the LJCC of the protection of Section 702 because it sought to abide by its principles of “tolerance” and “healing the world” through extending its welcome to non-Jews.

503 F.3d 217 at 230.

So where did the HHS mandate exemption language come from? As one of the lawyers on the cert petition in 2004 challenging California's contraceptive mandate, I am fairly certain that the narrow, four-prong test in the HHS mandate initially appeared in a revised 1999 draft bill by then-California state senator Jackie Speier (now a US representative). In short, the language in the HHS exemption has always been about coercing Catholic social service agencies, hospitals, and universities and colleges to provide contraceptive coverage, and the problem now is the same that my colleagues and I stated then:

Catholic Charities’ stated purpose is not to “inculcat[e]” religious values, but to carry out the Church’s religious mission to perform corporal works of mercy. It provides social services to anyone in need, whatever his or her religious beliefs. And it employs those who, regardless of their own religion, embrace Catholic Charities’ mission and understand that it is pursued in conformity with the faith and teachings of the Church of which it is a part. In the judgment of the State, Catholic Charities’ religious rights are forfeited for these reasons—because, to put it bluntly, it puts its religion into practice and does so in an all-inclusive way. There is, California seems to say, something less religious about such an organization. A truly religious organization, in its view, would be more exclusive in its associations, more single-minded in its purpose, and less concerned about the welfare of others. It would be concerned only with drilling, or “inculcating,” its beliefs into the minds of its adherents.

There is no precedent for such a narrow view of religion.

A quick response to Prof. Cafardi

Over at America, Prof. Nicholas Cafardi, whose work is probably familiar to many MOJ readers, has a post that is critical of the decision by Catholic institutions' to file lawsuits challenging the preventive-services mandate.

Prof. Cafardi writes, "what these lawsuits come down to is an attempt to impose the church's teachings on their employees, Catholic and non-Catholic, who do not themselves choose to follow those teachings. That’s not religious liberty, though; that’s religious control."

With all due respect, this charge misses the mark. These lawsuits do not, in any way, limit the ability of employees to purchase or use contraceptives, nor do they, in any way, limit the ability of Congress or the Administration to employ another way -- besides making objecting religious employers bear the cost -- of subsidizing contraceptives for women who work at such institutions. The imposition here is coming not from the plaintiffs, but from the Administration.

Prof. Cafardi also writes: "HHS has already, at the direction of President Obama, backtracked significantly, with new regulations that clearly exempt some of the organizations who have filed these lawsuits, like Catholic universities and social service agencies. Besides that, the regulations they object to don't even go into effect until next year. There was still time for more negotiations. So why are they suing now?" But, the President has not backtracked at all; the original mandate is in effect, is operative now, and the possible changes to that mandate remain unclear and, in any event, not yet operative.

As for the "why now?", question, Fr. John Jenkins's statement explained clearly why, with regret, he thought the case needed to proceed. It is entirely reasonable for these institutions -- who are subject to costly obligations *now* to prepare to comply with the current mandate -- to try to resolve the question of these obligations' legality now, rather than waiting to see if the regulatory landscape changes in some way, down the road.  And, in any event, even the floated changes do nothing about the troublingly narrow religious-employer exemption contained in the current mandate.

"Pro-decision-making"?

In a National Catholic Reporter article, Doug Kmiec says the following:

The pro-abortion, even pro-infanticide, label tossed at Obama throughout the 2008 campaign was both unfair and contestable. The president is pro-decision-making by pregnant women, but he is not at all shy of saying how he hopes the decision would be made. Here is what the president said to the Domers:

"Maybe we won't agree on abortion, but we can still agree that this is a heart-wrenching decision for any woman to make, with both moral and spiritual dimensions. So let's work together to reduce the number of women seeking abortions by reducing unintended pregnancies, and making adoption more available, and providing care and support for women who do carry their child to term. Let's honor the conscience of those who disagree with abortion, and draft a sensible conscience clause, and make sure that all of our health care policies are grounded in clear ethics and sound science, as well as respect for the equality of women."

"Pro-decision-making by pregnant women." So this is how we, as defenders of the lives of children in the womb are to characterize the question of abortion? Someone like President Obama who would protect the lawfulness of deliberate feticide, enact policies to make it as widely available as possible, and support its funding with taxpayer money is not pro-abortion, he is merely "pro-decision-making by pregnant women"? Even when the decision (carefully left undescribed) is, in truth, a decision about whether to kill the child? It's this kind of abuse of language that people seem always to resort to when we want to obscure from view a deep injustice that is being done against our fellow human beings.

On the question of the fairness or unfairness of criticism of Barack Obama on abortion and infanticide, I would defy Doug or anyone else to identify errors of fact regarding what Obama has said and done in either of these two 2008 articles on the subject.

"Obama's Abortion Extremism":

http://www.thepublicdiscourse.com/2008/10/133

"Obama and Infanticide":

http://www.thepublicdiscourse.com/2008/10/282

What Yuval Levin and I report (and document) in these articles is either true or false. If it is false, the President's defenders should have no difficulty in exposing the falsehoods, since every point we address is a matter of public record.  If what we report is true, then it is the defenders---at least the ones who continue to regard themselves as pro-life---who have some explaining to do, not his pro-life critics.

Winters on the Notre Dame Contraception-Mandate Suit

Overall, I think, a fine post by MIchael Sean Winters on Notre Dame's suit. There's some inflammatory language ("Sebelius and her fellow travelers") in a post that condemns inflammatory debate, but overall it seems to me incisive, and hard-hitting in the right places and manner. Money quote:

The central objection Notre Dame puts forward is that the Administration employs an unconstitutional standard in deciding what kinds of religious organizations are exempt from the new mandate and what kinds are not. This has been the central objection of many of us since the President’s January announcement, especially those of us who tend to lean to the left and care deeply about the Church’s social justice ministries. We reject – how can we not? – the distinction between a house of worship, which is exempt, and a religious charity, hospital or university, which are not exempt because, as Catholics, we believe that caring for the poor, healing the afflicted, and pursuing faith and reason together, are as essential to our Catholic identity as is our Sunday worship.

The Notre Dame complaint and Fr. Jenkins's letter explain cogently why, even assuming the administration's good faith in its claim to be seeking further accommodation, Notre Dame could not wait until it all might get sorted out. As is true in many cases, I think, the language of his message packs extra punch (more than most interventions on both sides of this debate) because it is measured, non-demonizing, and simply lays out the steps in the university's reasoning:

Although I do not question the good intentions and sincerity of all involved in [the further-accommodation] discussions, progress has not been encouraging and an announcement seeking comments on how to structure any accommodation (HHS Advanced Notification of Proposed Rule Making on preventative services policy, March 16, 2012) provides little in the way of a specific, substantive proposal or a definite timeline for resolution. . . . We will continue in earnest our discussions with Administration officials in an effort to find a resolution, but, after much deliberation, we have concluded that we have no option but to appeal to the courts regarding the fundamental issue of religious freedom.

"Neutrality and the Good of Religious Freedom: A Response to Prof. Koppelman"

A little while ago, Bob Cochran and the crew at Pepperdine hosted a great conference, “The Competing Claims of Law and Religion: Who Should Influence Whom?”  (Here, here, and here are some earlier MOJ posts on the conference.)  I was honored to be asked to respond to Prof. Koppelman's invited lecture (which is based on his forthcoming book, Defending American Religious Neutrality), but the festering miasma of evil that is contemporary air travel delayed my arrival so that I was too late to share my response with the conference.  So, thanks to SSRN, several months later, here it is:

This paper is a short response to an address, “And I Don’t Care What It Is: Religious Neutrality in American Law,” delivered by Prof. Andrew Koppelman at a conference, “The Competing Claims of Law and Religion: Who Should Influence Whom?”, which was held at Pepperdine University in February of 2012. In this response, it is suggested – among other things – that “American religious neutrality” is, as Koppelman argues, “coherent and attractive” because and to the extent that it is not neutral with respect to the goal and good of religious freedom.

Religious freedom, in the American tradition, is not what results from the operationalization in law of hostility toward religion. It is not (only) what results from a program of conflict-avoidance or division-dampening. It is not merely the product of those compromises that were necessary to secure the ratification of the original Constitution. It is, instead, a valuable and necessary feature of any attractive legal regime, because it reflects, promotes, and helps to constitute human flourishing. So, and again, the state should remain “neutral” with respect to most religious questions – primarily because the resolution of such questions is outside the jurisdiction, and not just the competence, of civil authorities – but it may and should affirm enthusiastically that religious freedom is a good thing that should be protected and nurtured in law and policy.

Coverage of the contraceptive mandate lawsuit

Get Religion analyzes the media coverage of the lawsuit filed yesterday against HHS by a few dozen Catholic organizations.  For example, here's an excerpt from the Tribune News Service:

The Catholic organizations, which filed the suits in federal courts across the country, argue that the federal mandate infringes on their religious freedom because it violates church teachings.

As Get Religion helpfully notes, "[T]he key to the religious liberty claims is not that these new federal rules violate church teachings. The problem is that the mandates require religious institutions to violate their own doctrines, traditions and teachings."

Waldron on Natural Law

Jeremy Waldron has posted "What is Natural Law Like?"  The abstract:

The State of Nature,” said John Locke, “has a Law of Nature to govern it, which obliges every one.” But what is “a law of nature”? How would we tell, in a state of nature, that there was a natural law as opposed to something else — like positive law, a set of customs, natural morality, natural ethics, a set of natural inclinations, the truth of certain prudential calculations, a widespread but perhaps false belief in some transcendent law, the voice of God, or just a natural disposition on the part of some pompous people to make sonorous objective-sounding pronouncements? What form should we expect natural law to take in our apprehension of it? This paper argues three things. (a) John Finnis’s work on natural law provides no answer to these questions; his “theory of natural law” is really just a theory of the necessary basis in ethics for evaluating positive law. (b) We need an answer to the question “What is natural law like” not just to evaluate the work of state-of-nature theorists like Locke, but also to explore the possibility that natural law might once have played the role now played by positive international law in regulating relations between sovereigns. And (c), an affirmative account of what natural law is like must pay attention to (1) its deontic character; (2) its enforceability; (3) the ancillary principles that have to be associated with its main normative requirements if it is to be operate as a system of law; (4) its separability form objective from ethics and morality, even from objective ethics and morality; and (5) the shared recognition on earth of its presence in the world. Some of these points — especially 3, 4, and 5 — sound like characteristics of positive law. But the paper argues that they are necessary nevertheless if it is going to be plausible to say that natural law has ever operated (or does still operate) as law in the world.

Notre Dame (and others) file federal-court lawsuit challenging HHS mandate

Here is a link to the complaint filed this morning by the University of Notre Dame, challenging the Administration's "preventive services" mandate.  Here is an excerpt from the announcement by Fr. Jenkins, the University's president, to the Faculty and Staff:

. . . Let me say very clearly what this lawsuit is not about:  it is not about preventing women from having access to contraception, nor even about preventing the Government from providing such services.  Many of our faculty, staff and students -- both Catholic and non-Catholic -- have made conscientious decisions to use contraceptives.  As we assert the right to follow our conscience, we respect their right to follow theirs.  And we believe that, if the Government wishes to provide such services, means are available that do not compel religious organizations to serve as its agents.  We do not seek to impose our religious beliefs on others; we simply ask that the Government not impose its values on the University when those values conflict with our religious teachings. We have engaged in conversations to find a resolution that respects the consciences of all and we will continue to do so. 

This filing is about the freedom of a religious organization to live its mission, and its significance goes well beyond any debate about contraceptives.  For if we concede that the Government can decide which religious organizations are sufficiently religious to be awarded the freedom to follow the principles that define their mission, then we have begun to walk down a path that ultimately leads to the undermining of those institutions.  For if one Presidential Administration can override our religious purpose and use religious organizations to advance policies that undercut our values, then surely another Administration will do the same for another very different set of policies, each time invoking some concept of popular will or the public good, with the result these religious organizations become mere tools for the exercise of government power, morally subservient to the state, and not free from its infringements.  If that happens, it will be the end of genuinely religious organizations in all but name. . . . 

Here is the statement of John Garvey, the President of Catholic University.

In my view, these lawsuits -- which are the result of the Administration's overreach, and not of any effort by religious institutions or leaders to "pick a fight" -- are efforts to vindicate the country’s constitutional and traditional commitments to religious freedom and pluralism.

These latest lawsuits, like the many others that had already been filed, are asking the courts to enforce the Constitution and the Religious Freedom Restoration Act, and to protect religious liberty and conscience from a regrettable and burdensome regulatory mandate.  This mandate imposes a serious and unnecessary burden on many religious institutions’ commitments, witness, and mission.  It purports to require many religious schools, health-care providers, and social-welfare agencies to compromise their institutional character and integrity.  In a society that respects and values diversity, as our does, we should protect and accommodate our distinctively religious institutions, and welcome their contributions to the common good. 

These lawsuits are not asking the courts to endorse the plaintiffs’ religious views, only to respect and accommodate them.  Religious institutions are not seeking to control what their employees buy, use, or do in private; they are trying to avoid being conscripted by the government into acting in a way that would be inconsistent with their character, mission, and values.  In a pluralistic society, people will often disagree about values and policies, and it will not always be possible to accommodate those who object in good faith to regulatory requirements.  At the same time, a society like ours – with a Constitution and federal religious-freedom protections like ours – will regard it as often both wise and just to accommodate religious believers and institutions by exempting them from requirements that would force them to compromise their integrity. This is such a case.  We Americans do not agree about what religious freedom means, but we have long agreed that it matters, and should be protected through law.  True, there will sometimes be tension and conflict, and trade-offs and compromises.  Given our deep-rooted commitment to religious freedom, though, our goal as a community should always be to strike the balance in a way that honors that commitment.

The Lamp of Memory

The sad pictures of destruction in areas surrounding the hometown of my mother, Bologna, are only somewhat softened by the welcome news that it appears relatively few people were killed or seriously injured by the earthquake.

But the images of destroyed churches and other ancient public edifices reminded me of Ruskin's verdict that architecture is the most political of the arts.  So I went back in search of his elegant polemic (it is possible to be both) The Seven Lamps of Architecture -- my favorite of which is "The Lamp of Memory."  Here's a bit:

Every human action gains in honour, in grace, in all true magnificence, by its regard to things that are to come. It is the far sight, the quiet and confident patience, that, above all other attributes, separate man from man, and near him to his Maker; and there is no action nor art, whose majesty we may not measure by this test. Therefore, when we build, let us think that we build for ever. Let it not be for present delight, nor for present use alone; let it be such work as our descendants will thank us for, and let us think, as we lay stone on stone, that a time is to come when those stones will be held sacred because our hands have touched them, and that men will say as they look upon the labour and wrought substance of them, "See! this our fathers did for us." For, indeed, the greatest glory of a building is not in its stones, nor in its gold. Its glory is in its Age, and in that deep sense of voicefulness, of stern watching, of mysterious sympathy, nay, even of approval or condemnation, which we feel in walls that have long been washed by the passing waves of humanity. It is in their lasting witness against men, in their quiet contrast with the transitional character of all things, in the strength which, through the lapse of seasons and times, and the decline and birth of dynasties, and the changing of the face of the earth, and of the limits of the sea, maintains its sculptured shapeliness for a time insuperable, connects forgotten and following ages with each other, and half constitutes the identity, as it concentrates the sympathy, of nations: it is in that golden stain of time, that we are to look for the real light, and colour, and preciousness of architecture; and it is not until a building has assumed this character, till it has been entrusted with the fame, and hallowed by the deeds of men, till its walls have been witnesses of suffering, and its pillars rise out of the shadows of death, that its existence, more lasting as it is than that of the natural objects of the world around it, can be gifted with even so much as these possess, of language and of life. 

Philadelphia Trial Turns a Corner

The Philadelphia trial of Msgr. William Lynn and Fr. Brennan turned a corner last week. After 8 weeks of testimony, the prosecution rested its case. While the evidence cannot be recounted adequately in this post, the press summarized some important events and themes here and here.

This case has raised important questions about child protection, appropriate response, institutional climates, and the role of lawyers. As the press articles suggest, most predict that Msgr. Lynn's defense will not be to question whether certain events occurred. Rather, he is expected to continue to describe the situation as one in which he was attempting to take action, but his superiors were hindering his efforts. Fr. Brennan denies any wrongdoing.

Last week the trial judge dismissed one of two conspiracy charges against Lynn. Remaining are two counts of endangering the welfare of a child and one count of conspiracy. Brennan faces charges that he sexually assaulted a child. The defense presents it case this week. Jurors are expected to have it by Memorial Day.

Apostolic Apathy

 

Over the past several weeks, some of my friends and colleagues here at the Mirror of Justice and contributors on other weblogs have been addressing issues dealing with the matter of Georgetown University inviting HHS Secretary Kathleen Sebelius to be the speaker at a commencement-related event. The Washington Post has chimed in [here] as has the President of Georgetown, Dr. Jack DeGoia [here]. With respect to the positions of both the Post and Dr. DeGoia, they get it wrong, not right as the Post claims, regarding the matters of “academic freedom” and whether the University did or did not honor Secretary Sebelius by inviting her as a speaker. Professor Patrick Deneen has done a careful analysis of these claims proffered by the newspaper and the University and has ably demonstrated why they are inadequate [here]. I do not intend to repeat Professor Deneen’s accurate explanation of the matter and evolving misfortune at Georgetown and other institutions that claim the moniker “Catholic”.

However, I want to use his critique and the defenses offered by the Post and the University to recall and revisit an important topic we often address here at the Mirror of Justice: that is, the reason for Catholic education (including legal education) and the nature of the Catholic institution of higher education.

During Eastertide, we recall the teaching of Jesus Christ in his farewell discourse that he is the vine and we are the branches. Our Lord builds upon this theme by reminding his disciples that the branches which do not bear fruit but wither are collected and burned. John 15:1-11. But before the withered branches are removed for incineration, they are pruned in a good-faith effort to revive them. This is the imagery which I think Archbishop Michael Miller had in mind when he spoke at Notre Dame in 2005 (and then later, Boston College in 2006) and used the image of “evangelical pruning” that necessitate positive institutional changes by an educational institution if it is to remain faithful to the institution’s Catholic mission and identity [here]. However, if the pruning is unable to remedy the problems, it is reasonable to conclude that the institution is not an asset but an obstacle to the Church’s mission of education where the faith and reason are complementary and essential partners.

Georgetown is my alma mater, and I have many fond memories of the college at which I matriculated almost fifty years ago. I had many fine Jesuit and lay teachers (amongst the latter, not all were Catholic but understood, respected, and celebrated the institution’s mission and identity as a Catholic and Jesuit center of learning) who helped me simultaneously cultivate my mind and soul. I don’t think I would have the same experience today if I were matriculating in the present day.

Why? Was the decision to change the soul of the institution intentional? Probably not. But change has happened through decisions that persons responsible for the nature and soul of Georgetown have made freely over the years. The evidence of the withering of the Catholic soul has grown during the passage of time. I cannot say if there is still time for Georgetown, and other schools pursuing the same path, to self-prune, but I pray for this. Being an optimist, I want to say there may well be a final opportunity, but the time is growing short, very short, for this to happen.

Almost twenty-two years have passed since Blessed John Paul II issued his apostolic constitution Ex Corde Ecclesiae addressing many important matters concerning Catholic universities, their mission, and their identity. Some of the institutions which claim the modifier “Catholic” have taken the counsel of JPII to heart, but others have not. Georgetown is in the latter category, so it appears, judging from all the currently available evidence. Today I join the appeal of Professor Deneen and others acknowledging that much will be lost when this, the oldest Catholic university in the United States, takes that final step that severs itself from the Vine of Christ. As I said, there may still be time, and if there is, it is preciously little. The bonfire that may result is not one of vanity but of a soul. With the soul gone, the vanity will remain.

 

RJA sj

 

"Faithful Citizenship Fridays"

The folks over at Catholic Moral Theology are kicking off a week-long series of posts on the same-sex-marriage question.  Here is the first one.  Stay tuned!