Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

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Friday, August 28, 2015

"Agape, Gift, and Intellectual Property"

In the years ahead, intellectual property and related legal and policy questions will become even more important than they already are. The Catholic Church has had things in the past about intellectual property rights and common good; and the Church and other Christian bodies will need to say more in the future. Following up on my previous work in this vein, I've posted "Agape, Gift, and Intellectual Property" on SSRN. The abstract:

The scope of protection of intellectual property (IP) has become a social justice as well as a legal and business issue, especially in the international arena, where disputes continue over whether expanded IP rights help or harm people in developing nations. Scholars writing in the Christian tradition have begun to respond to these questions, analyzing IP-related issues in the light of Christian theological themes such as creation, stewardship, and solidarity with the poor.

This paper, written for a Pepperdine Law School symposium on love and justice, explores potential implications for IP of another central Christian theme, agape: the form of love, independent of particularistic loyalties, that is most distinctive of Christian ethics. Agape in turns connects with the idea of “gift”: that creativity, among other human attributes, is a gift that humans receive (from a divine giver, Christians and other religious believers say). In Christian thought the sense of gift, and gratitude for the gift, connects to love of God and neighbor: the response of gratitude to God is to use the gift to benefit others. I connect these themes to those critics of IP rights, such as Lewis Hyde, who appeal to the virtues of a “gift economy” in which knowledge is shared rather than commoditized. Economies based on gift, and gratitude to the giver, have been thought to have a dark side: they can reinforce personal indebtedness and social hierarchies. But, following on the work of other Christian thinkers, I argue that the gift-giving economy can be universalized, and made more egalitarian, if we maintain, or recover, the sense that the human talents that produce goods are themselves gifts from a universal source (in Christian and other religious thought, from the God who gives all gifts in the first place).

Creativity is thus a fundamental gift we receive, and IP law should encourage the response of gratitude: dissemination of that gift to others to benefit them, and empowerment of others to realize their own creative gifts. The paper concludes with suggested general implications for IP law and policy.

August 28, 2015 in Berg, Thomas | Permalink

Thursday, August 27, 2015

Amicus briefs in the Little Sisters of the Poor case

The good folks at the Becket Fund have helpfully collected all of the amicus briefs that were filed in support of the Little Sisters of the Poor's petition for certiorari.  Some (including this one) take time to develop arguments under the Free Exercise Clause and the Establishment Clause (that is, they add to the familiar RFRA arguments).  Happy reading!

August 27, 2015 in Garnett, Rick | Permalink

Surrexit Christus -- Christ is Risen

Some beautiful morning listening.   

August 27, 2015 in Walsh, Kevin | Permalink

Tuesday, August 25, 2015

Announcing the Third Biennial Colloquium in Law and Religion

The Center for Law and Religion at St. John’s Law School is pleased to announce its third Clr-logo1biennial Colloquium in Law and Religion, scheduled for Spring 2016. This seminar invites leading law and religion scholars to make presentations to a small audience of students and faculty.

The following speakers have confirmed:

February 1: Brett G. Scharffs (Brigham Young University School of Law)

February 16: Robin Fretwell Wilson (University of Illinois School of Law)

February 29: Robert P. George (Princeton University)

March 14: Mark Tushnet (Harvard Law School)

April 4: Justice Samuel A. Alito (United States Supreme Court)

April 18: Elizabeth H. Prodromou (Boston University & Tufts University Fletcher School of Diplomacy)

Topics will be announced at a future date.

For more information or if you would like to attend the sessions, please contact the colloquium’s organizers, Marc DeGirolami (degirolm@stjohns.edu) and Mark Movsesian (movsesim@stjohns.edu). For information about past colloquia, please click here, Spring 2012, and here, Spring 2014 (hosted with Villanova Law School).

August 25, 2015 in DeGirolami, Marc | Permalink

Americans United's (and others') misguided attack on religious institutions

There was a fair amount of hoopla occasioned by the release of this letter, from Americans United for the Separation of Church and State (formerly "Protestants and Other Americans United . . . .). and about 130 other advocacy and activist organizations.  In a nutshell, they are complaining about -- and want the Administration to abandon -- the practice of allowing religious social-welfare organizations that cooperate with the federal government (or, as they put it, "receive federal funding") to address important and entirely "secular" needs and problems to staff and hire for mission (or, as they put it, to "engage in religious discrimination").

The Administration's policy is the correct one.  No discrimination by these religious institutions *against beneficiaries* is permitted (nor should it be) but the government has wisely said (so far) that religious institutions that provide valuable services -- services that it is entirely appropriate for the government to fund -- are not tainted or otherwise rendered unworthy by virtue of the fact that they hire in accord with their religious mission.  If this hiring is "discrimination", it is not wrongful discrimination, and so the federal government is right not to be bothered by it.

What's really going on here, of course, is troubling:  These groups know full well that there is no pressing problem of religious social-welfare institutions denying employment opportunities to those who do not embrace  those institutions' mission and animating values. In the long tradition of groups like Americans United, the signatories to this letter oppose Catholic schools and other institutions -- they object to the content of what those schools and other institutions teach and do -- and so they are hoping to roll back the principle underlying the Supreme Court's acceptance of school-voucher programs.  

The letter exhibits what I will charitably call "confusion about discrimination."  For more on this problem, read this or this.

August 25, 2015 in Garnett, Rick | Permalink

God bless Fr. Araujo

Many people have emailed me to express their deep admiration and affection for our dear friend, Fr. Araujo, who shared details about his health the other day in this moving post.  It would, and will, take a lot more than one blog post to express all that I, and all of us at Mirror of Justice, are thinking, feeling, hoping, and praying for, and so I will not try here.  For now, I'll simply join my colleagues, and all MOJ readers, in looking forward to his manuscript on religious freedom, in praying for his well being, and in thanking God for his vocation and life.

August 25, 2015 in Garnett, Rick | Permalink

God bless Fr. Araujo

Many people have emailed me to express their deep admiration and affection for our dear friend, Fr. Araujo, who shared details about his health the other day in this moving post.  It would, and will, take a lot more than one blog post to express all that I, and all of us at Mirror of Justice, are thinking, feeling, hoping, and praying for, and so I will not try here.  For now, I'll simply join my colleagues, and all MOJ readers, in looking forward to his manuscript on religious freedom, in praying for his well being, and in thanking God for his vocation and life.

August 25, 2015 in Garnett, Rick | Permalink

"Meeting God as an American"

I enjoyed this review , by David Paul Deavel, of Randy Boyagoda's new book on Fr. Richard John Neuhaus.   Although I appreciate the insights, and the force of some of the critiques -- especially in light of recent events, such as the firestorm surrounding Indiana's religious-freedom law -- of the so-called "radical traditionalists" like my friend and colleague Patrick Deneen, I continue to think that Fr. Neuhaus's basic stance and approach are attractive and compelling:

 Today, many young conservatives of a religious bent seem inclined to view as a mirage Neuhaus’ mediating position between theocracy and secular domination. Most of them are more than ready to damn an America that is simply and without remainder a product of an unadulterated Enlightenment liberalism. They’ve taken to heart Neuhaus’s more radical and despairing laments over Babylon while rejecting his optimism and balanced assessment of the strengths and weaknesses of American institutions and culture. We need more reflection on Neuhaus’s thought, but we also wait for another—doubtless different—Neuhaus, who loves his flawed country enough to fight for it and expects to meet God as an American.

The Neuhaus / First Things project is sometimes caricatured and (I think unfairly) criticized for being insufficiently critical of American actions, laws, culture, premises, etc.  And, to be sure, it's not hard to find Christian "conservatives" who engage in cringe-inducing cheerleading for various things that don't deserve it.  Still -- there are "strengths and weaknesses" and among the strengths is a (bruised and vulnerable) tradition of religious freedom, ordered liberty, and the common good under and through the rule of law.

August 25, 2015 in Garnett, Rick | Permalink

The New York Times on abortion and Down Syndrome

It is not news, even if it is unfortunate and damaging to the common good, that the New York Times takes a consistently extremist position on the issue of abortion.  Although it purports regularly to pronounce on the location and content of the "mainstream," the Times is reliably on the fringe both of public opinion and morality when it comes to questions regarding the extent to which unborn children may and should be protected in law.

In this editorial, "Abortion and Down Syndrome," the Times take a position that, notwithstanding the support it might (sadly) enjoy in public opinion, should be deeply chilling and troubling.  In criticizing an Ohio proposal that would restrict abortions based on a diagnosis that the unborn child has Down Syndrome, the Times takes the view that the fact "a majority" (actually, much more than that) of such diagnoses result in abortion, the proposal is for that reason objectionable.  Actually, it is because such diagnoses (and other diagnoses or predictions of disabilities) so often result in the decision that the disabled unborn child should not be permitted to live that the expressive and pedagogical function of the law is so needed on this matter.  The Times piece gives no indication that there is even something to be worried about here; it is completely silent regarding the connection between the attitude that results in extremely high abortion rates for disabled children and the treatment and welfare of those persons with disabilities who were not aborted.

August 25, 2015 in Garnett, Rick | Permalink

Sunday, August 23, 2015

Au Revoir, Mes Amis, Au revoir…

 

Ten years ago this July I was honored by several founders of the Mirror of Justice with their invitation to participate in this great project dedicated to the development and explanation of Catholic legal theory. A fundamental part of this project for me, and I think for others (be they contributors or readers), is to demonstrate this theory’s relevance to the law and its rule. As I said, I was honored to be invited, and it has been an extraordinary privilege to contribute with colleagues and friends on matters of pressing relevance—and, of course, there was the occasional bit of fun. On some occasions, I have enjoyed immensely the opportunity to exchange views with other contributors. I apologize to any of them who may have construed my desire to encounter them as something other than debate and discussion of matters which we all hold dear. I understand your passion for the arguments you presented; I am certain you acknowledge mine.

Whether we agreed or disagreed on finer points is not especially relevant to today’s posting; it was then and remains my objective to get closer to the heart of what Catholic teaching has to offer the law and our societies for the betterment of everyone so that the common good might be fulfilled and natural justice achieved. In particular, it was, is, and remains my perspective that the uniqueness of Catholic teachings and their relevance to civil law must ultimately concentrate on the nature of the human person and this person’s destiny—be it in this world or one’s ultimate destiny, which is union with God. The Second Vatican Council posed the question: quid est homo (what is man; what is the human person)? This statement and the question it presents reflect a crucial foundation stone of Catholic teaching and, therefore, have a bearing on what is done to develop Catholic legal theory. Well, that was how I saw and still see things that appear on this website.

But there is another reason why this statement about human nature and destiny is the catalyst for why I write and post today. About three weeks ago, I was informed that my then current chemotherapy had failed. This latest treatment joined its twelve predecessors in the minus rather than the plus column. Failure is not always easy to accept, but with the grace of God it can be. I knew this day would come sooner or later, so, as best I could, I tried to prepare for it with careful thought and sober prayer. With the thought and prayer in place, I concluded that the doctors and I had given it our best to try and control a disease that would eventually be uncontainable. Although my doctors aggressively pursue cancer cure, they know that they must also care for the patient in other ways, one of which is to respect the patient’s informed wishes. This sometimes means that the patient is saying he has had enough treatment that the best medical science can provide, and it is now time for nature and God to take their respective courses. This conclusion that I have made and accepted is not my disposition and vocation alone; they belong to everyone, especially the Christian and those who believe in and pray to God. Miracles can and do happen, but I do not ask for one. As a consequence of my discernment, I am now in palliative/hospice care. This means I receive bi-weekly phereses and blood transfusions at Dana Farber; in addition to these two items, I receive pain management care at my Jesuit infirmary.

In the interim, I soon hope to finish soon a book manuscript on, of all subjects, the Declaration on Religious Liberty and its relevance to the law. When this project is completed, I will ask that the blood transfusions stop. After all, they are only delaying the inevitable. But in the meantime, there is a little work still to be done and many prayers for you and so many others that must be offered. So, borrowing from Pere Jean in the 1987 French film, “Goodbye, children!”, I offer my own Au revoir, mes amis! À bientôt!

 

RJA sj

August 23, 2015 in Araujo, Robert | Permalink

Thursday, August 20, 2015

Special Olympics Story

You know those stories you always hear about competitors in Special Olympics meets choosing cooperation and helping over competition -- like turning back during a race to help competitors who stumble?  Well, if you wonder whether they're true, here's one I know is true -- it's about a teammate on my son's Special Olympics gymnastics team.  This fellow, Jack Campbell, is an incredibly gifted gymnast, and was chosen to represent the U.S. at the  Special Olympics World Games in L.A. this summer.  Here's the story, from the gymnastics club that sponsors our team:

Jack Campbell, member of the Mini Hops Special Olympics Gymnastics team, returned from World Games Competition in Los Angeles last week adorned with medals and ribbons for his performance in the Artistic Gymnastics competition!  Gymnasts from all over the world competed over four days striving to fulfill the Special Olympic oath: “Let me win, but if I cannot win, let me be brave in the attempt.” Jack was both brave and he won! He took home gold in parallel bars and floor; silver in vault; bronze in high bar; fourth in still rings and fifth in pommel horse. That added up to an All Around bronze medal in his Level Two division. It was an impressive showing and the U.S. fans loudly let him know he was a favorite.

 

But Special Olympics is not just about sports; it is about sportsmanship and friendship. Jack proved once again at the Games that he comes out on top there, too.  As it happened, a Chinese athlete showed up at the World Games only to discover that he had learned an outdated set of routines and did not know the correct ones. What a potential disaster for any athlete who has trained for years to reach the height of the sport! But Jack came to the rescue. Working with the coaches during long practices, Jack taught the routines to his colleague. With this little bit of help from his friends, the Chinese athlete was able to compete and win in a different division. That kind of spirit shines through Jack, in sports and in life, and Mini Hops is proud to welcome him home.

 

August 20, 2015 in Schiltz, Elizabeth | Permalink

Monday, August 17, 2015

Tocqueville on Equality and Social Discontent

I've been reading Tocqueville's L'Ancien Régime et la Révolution, a work that discusses the several causes of the French Revolution and one of whose basic themes is that the legal and political reforms following the Revolution were actually already in place in the late stages of the ancien régime. After the distempers of the Revolution subsided, those same governmental reforms and ways of conducting state business returned.

In fact it was the reforms that hastened on the Revolution. The anger and dissatisfaction of the people became unbearable not because equality was in decline or at its lowest ebb before the Revolution, but because it was rising. The point is about the political psychology of equality, and, allowing for changed circumstances, it isn't applicable only to pre-revolutionary states but can be seen to operate in many contexts. The more people believe themselves to be equal to one another in every respect, the less inequalities of any respect become tolerable. From Chapter XVI ("That the Reign of Louis XVI Was the Most Prosperous Era Of the Old Monarchy, and How That Prosperity Hastened the Revolution"): 

Revolutions are not always brought about by a decline from bad to worse. Nations that have endured patiently and almost unconsciously the most overwhelming oppression, often burst into rebellion against the yoke the moment it begins to grow lighter. The regime which is destroyed by a revolution is almost always an improvement over its predecessor, and experience teaches that the most critical moment for bad governments is the one which witnesses their first steps toward reform. A sovereign who seeks to relieve his subjects after long periods of oppression is lost, unless he be a man of great genius. Evils which are patiently endured when they seem inevitable become intolerable when once the idea of escape from them is suggested. The very redress of grievances throws new light on those which are left untouched, and throws fresh poignancy to their smart: if the pain be less, the patient’s sensibility is greater. Never had the feudal system seemed so hateful to the French as at the moment of its proximate destruction….

No one in 1780 had any idea that France was on the decline; on the contrary, there seemed to be no bounds to its progress. It was then that the theory of the continual and indefinite perfectibility of man took its rise. Twenty years before, nothing was hoped from the future; in 1780, nothing was feared. Imagination anticipated a coming era of unheard of felicity, diverted attention from present blessings, and concentrated it upon novelties.

August 17, 2015 in DeGirolami, Marc | Permalink

Liberal Humility?

I was truly surprised to read an editorial in our local paper this Sunday offering a counterpoint to  Tom's recent post about the burgeoning 'liberal arrogance."  To put my surprise into context, the Star Tribune is - how shall I put this -- not known for its favorable coverage of the pro-life perspective.  Its coverage about the Planned Parenthood videos has been largely limited to publishing letters to the editor from people complaining about the videos, and stories about how local Planned Parenthood affiliates are "weathering the storm."  One day I heard on the Relevant Radio that 100s of people had shown up to protest in front of a local Planned Parenthood.  I checked the Star Tribune the next day, and found no mention of it.  However, there was an extensive story (with a picture) of the protesters in front of the dental office of the guy who shot Cecil the lion. 

(This reminded me of a game I sometimes play.  Open up the website for CNN, and the website for Fox News.  Are they even covering the same planet?)

So, imagine my shock to read this brave and honest piece by D.J. Tice, exploring this idea:

It would be surprising if our generation produced the first morally infallible era in history. Chances seem good that, like the people of every age before us, most of us today are doing and thinking certain things — or at least going along with certain things — that will leave our descendants more or less aghast, wondering how we could have been so blind.

And the nature of moral blind spots is that we can’t be sure what our era’s worst mistakes are.

I pondered all this uncomfortably when I broke down recently and watched the most, well, appalling of the hidden-camera videos documenting Planned Parenthood’s fetal-tissue donation program. It’s the one in which Planned Parenthood personnel and undercover activists posing as tissue buyers use tweezers to idly pick through a lab tray holding little arms and legs and livers and whatnot.

 

August 17, 2015 in Schiltz, Elizabeth | Permalink

Sunday, August 16, 2015

An Orthodox Believer's Response to Catholics and Evangelicals Together on Law

Back in the Fall of 2013 -- after 8 years of conversation and work -- a group of Catholic and Evangelical law professors (including many MOJ-ers) published a statement called "The Lord of Heaven and Earth."  (More here, including a link to the statement.)

In the Winter 2014 issue of the Journal of Christian Legal Thought (which I just received), there is a response to the statement, written by Michael Avramovich, called "An Orthodox Believer's Response to Evangelicals and Catholics Together on Law."  I know I speak for the other authors of the statement in thanking Mr. Avramovich for his time and comment.  You can get a copy of the issue, including the response, here: Download JCLT Winter 14 web copy.

August 16, 2015 in Garnett, Rick | Permalink

Wednesday, August 12, 2015

Supreme Court of Ohio Board of Professional Conduct issues advisory opinion imposing duty on judges to perform same-sex marriages

The Board of Professional Conduct for Ohio lawyers and judges has issued an advisory opinion interpreting the relevant authorities within the Board's authority to prohibit judges from refusing to perform marriages for same-sex couples.

The weakness of the opinion's reasoning is evident near the outset, starting with the paragraph purporting to bring the issues addressed within the Board's jurisdiction:

In Ohio, municipal, county, and probate judges are specifically authorized by statute to perform civil marriage ceremonies. R.C. 1907.18(C), 1901.14(A)(1), 2101.27, and 3101.08. Whether judges are mandated or authorized by the Ohio Revised Code to perform civil marriages is a legal question and beyond the scope of the advisory opinion authority granted to the Board by the Supreme Court of Ohio. Gov. Bar R. V, Section 2(D), BPC Reg. 15(B)(1). 1 However, the General Assembly has granted judges the authority to perform marriages because of the unique public office that they hold. When a judge performs a civil marriage ceremony, the Board concludes that the judge is performing a judicial duty and thus is required to follow the Code of Judicial Conduct in the performance of that duty.

Notice how this trades on different meanings of "judicial duty" at different times. It starts by saying that judges are "authorized" by Ohio statute law to perform marriages. It then disclaims authority to decide whether Ohio statute law actually mandates judges to perform marriages, or instead simply authorizes them to do so (the position staked out in the first sentence). The opinion then says that Ohio statute law grants judges authority to perform civil marriages "because of the unique public office that they hold." And then the opinion brings the decision whether to perform a civil marriage within the scope of the Code of Judicial Conduct by asserting that the judge is performing a judicial duty when a judge performs a civil marriage ceremony. Notice, though, that these are two different moments in time. The decision whether to perform a civil marriage ceremony precedes the performance of a civil marriage ceremony. Although the opinion disclaims authority to decide whether judges are mandated or merely authorized to perform any marriages, the opinion ends up determining the judges are, indeed, mandated to perform certain marriages. 

And this is just the beginning of the opinion. It gets worse when it goes far beyond the holding of Obergefell in concluding, for example, that "[a] judge may reasonably be perceived as having a personal bias or prejudice based on sexual orientation if he or she elects to perform opposite-sex marriages, but declines to perform same-sex marriages."

The opinion also reflects ignorance of the actual role of public opinion in the creation of new constitutional law these days when it brings in the requirement that judges "apply the law without regard to whether the law is 'popular or unpopular with the public, the media, government officials, or the judge’s friends or family.'" Can anyone say with a straight face that Justice Kennedy, the author of Obergefell v. Hodges, himself applied the law without regard to all these factors? Aside from judges' personal, moral, or religious beliefs about marriage, one good legal reason to avoid extending Obergefell beyond its holding is precisely to limit the damage done to the law when judges shape it to better conform with changed public opinion, as Justice Kennedy and his colleagues in the majority did in Obergefell.

August 12, 2015 in Walsh, Kevin | Permalink

Tuesday, August 11, 2015

2015 Scholarly Impact Ranking for American Law Schools

This morning, Professor Brian Leiter posted on the Law School Reports the 2015 ranking of American law schools by Scholarly Impact.

The complete ranking and narrative are available here.

In 2012 and again in 2015, I have shepherded the Scholarly Impact study, along with my librarian colleagues here at the University of St. Thomas, Valerie Aggerbeck, Nick Farris, and Megan McNevin, assisted by a team of students led by Maria Pitner. The preparation of the Scholarly Impact Ranking involves months of painstaking work identifying tenured faculty at law schools, performing citation counts (including sampling where necessary), double-checking and reconciling results, and calculating scores, scaling, and ranking.

Three years ago, through a series of posts here on Mirror of Justice, I offered several arguments as to why scholarly work and scholarly impact are especially important to Catholic legal education. Those points remain just as salient today.

The first argument, made here, was that a meaningfully Catholic law school must be an intellectually engaged law school, which is not possible without a faculty also engaged in the quintessential intellectual activity of scholarly research and writing.

My second point, made here, was that through scholarly excellence and law school scholarly prominence, we witness to society the vibrancy of intellectual discourse by persons of faith and counter the anti-intellectual stereotype often attaching to religiously-affiliated institutions, including law schools.

My third point, made here, was that, as Catholic Christians, we have are called to share the Gospel, both directly and indirectly.  The central role of scholarly research in our academic vocation is affirmed by no less a Catholic authority than St. Pope John Paul II in the apostolic constitution for Catholic universities, Ex Code Ecclesiae:   “The basic mission of a University is a continuous quest for truth through its research, and the preservation and communication of knowledge for the good of society.”

In sum, while we are called to teaching and service as well, we cannot fully participate as academics in the search for the truth without also contributing to the scholarly literature, which reaches audiences beyond the walls of our own institution and which is preserved in medium so that we can affect the scholarly discourse long after we have departed. It is a tremendous privilege – and a grave responsibility.

With respect to the 2015 updating of the Scholarly Impact Ranking, I may be forgiven here for highlighting certain results for schools at which members of the Mirror of Justice family teach:

The University of Notre Dame ranks in the top 25.  Emory is ranked #27. The University of St. Thomas ranks in the top 40 (at #39) for Scholarly Impact -- almost 100 ranking levels above its relegation in the U.S. News ranking.

Below the fold, I've set out the top 40 ranking in a table:

Continue reading

August 11, 2015 in Sisk, Greg | Permalink

"Liberal Arrogance"

Tony Jones is an interesting blogger. He's a former leader in the "Emergent" movement among young evangelicals, a movement that one needs to understand in order to see where evangelicals are likely to head in the future. (That in turn should be a matter of interest to those asking the same questions concerning Catholicism.) Now Tony tends liberal more frequently, but he still has evangelical elements. (He has a new book out called Did God Kill Jesus?, grappling with the tough theological questions about the meaning of Jesus's Atonement.)

At any rate, Tony has a new post up on "Liberal Arrogance." It isn't, and isn't intended to be, an analytical review of this phenomenon. But it came into my inbox just as a bunch of other complaints and news stories about the same phenomenon arrived, some of them (like Tony's) complaints by people who themselves are mostly liberal. (See. e.g., Jonathan Haidt on Morning Joe today talking about political correctness on college campuses, in response to a recent Atlantic story about standup comics who run into this when they play college venues.)

"Liberal arrogance" is in danger of becoming like the weather (apologies to Mark Twain). Everyone talks about it, but no one does anything about it.

August 11, 2015 in Berg, Thomas | Permalink

Monday, August 10, 2015

More on Non-Profits (Especially Religious Ones) Providing Civic Services

Thanks, Marc, for the interesting post. I too see a difference in trends between (1) excluding religious or private groups altogether from state-promoted social efforts and (2) subjecting them unyieldingly to conditions (e.g., nondiscrimination conditions) that may effectively exclude them. I think the former impulse--to exclude religious (or more generally private) groups as such has weakened over the last 30 years, with no reversal of that recently. Obama has mostly continued the Bush administration's effort to enlist faith-based groups in social services (and channeled additional funds to FBOs in the 2009-10 stimulus package); the contribution of those groups has been commended in the 2012 Democratic platform (see p. 15) and in speeches by both Barack and Michelle Obama.

But the second impulse above, to subject groups rigidly to accompanying conditions,  has significantly strengthened  in recent years. I think it's an open question how much of this is attributable to the gay-rights revolution, and how much to the broader establishmentarian idea that the state can and should make use of religions that are willing to conform fully to the state's norms. (As Marc suggests, the latter approach is one that separationists have warned against for a long time.)

August 10, 2015 in Berg, Thomas | Permalink

Sunday, August 9, 2015

The conditions in which private groups may perform civic functions

Here's an insightful post by Paul Horwitz on the Garnett, Inazu, McConnell essay. Paul introduces the post with a discussion about contemporary attitudes toward government's "insist[ence] that private organizations comply with its own sense of the good," and he claims that though many people continue to believe that such insistence is illegitimate, "the momentum" within the elite classes (or call them how you will) "is on the other side." I am always pleased when Paul shares at least some of my sensibilities.

One more thought connected to Paul's comment on these interesting matters. Tax exemption for private nonprofit organizations made a certain amount of sense when two conditions obtained: (1) the size of government, and the scope of its role in American social life, were a good deal smaller than they are today, thereby both necessitating and making space for the involvement of private nonprofit institutions for the support of civil society; and (2) the view that these private institutions could and should play an independent role in shaping civil society in accordance with their own senses of the political and moral good, senses that might diverge in important respects from the state's.

The conditions are mutually reinforcing and mutually dependent. As government becomes larger, both the need and the space for private institutions shrinks as does the perception that private institutions might actually have something of value to say in the way civic formation that is very different from what the state says. The "need" question is complex, because the breakdown of condition #1 would not necessarily mean that we would see fewer private institutions performing the sort of work that they had performed in the past. Indeed, the increase in the size and scope of the government's role might itself necessitate greater numbers of private institutions to help it fulfill its enlarged offices. But we should expect to see a sharp decline in private institutions engaged in civic formation whose values differed sharply from the government's. Whatever public/private arrangements endured after the fall of condition #1 could not continue to operate under the premises of condition #2. One might say that this is to be expected--indeed, it might be said to validate a hoary separationist rallying cry: if private institutions want to be in the business of performing civic functions, they ought to expect pressure to conform to the government's preferred views of the civic, political, and moral good. (A footnote: I’m always struck by how decidedly Protestant the theology supporting these kinds of separationist arguments seems.) All true, though one could offer in return that such increased pressure is not inevitable but the product of a historical contingency: the breakdown of the two conditions above.

August 9, 2015 in DeGirolami, Marc | Permalink

Friday, August 7, 2015

On the Vulnerability of the Mother-Child Dyad

Just noticed that Steubenville put up a presentation I gave there this past spring on human embodiedness and its consequences for women especially. I discuss gender theory, the reproductive asymmetry between men and women (and the feminist and Catholic responses), sexual economics, and finally, relying on MacIntrye and Eva Feder Kittay, why human vulnerability and dependency point to distinctive contributions of mothers and fathers.  I prepared the paper thinking I'd be speaking to students with a background in philosophy, but most of the attendees were nurses and nursing students. I enjoyed trying to simplify the concepts on the fly...but it did make for a lengthier talk!

August 7, 2015 | Permalink

Who should be protected by 1st Amendment Defense Acts

Ryan Anderson and I weigh in on the discussion launched by Rick Garnett, John Inazu, and Michael McConnell:

http://dailysignal.com/2015/08/06/4-reasons-we-must-protect-freedom-for-everyone-after-supreme-courts-marriage-ruling/

http://www.firstthings.com/blogs/firstthoughts/2015/08/on-marriage-protect-freedom-for-all

August 7, 2015 | Permalink

Thursday, August 6, 2015

Robby George and Ryan Anderson respond to Inazu et al.

Here is a response from Robby and Ryan to the piece that I posted yesterday -- by Mike McConnell, John Inazu, and I -- on the First Amendment Defense Act.  I encourage readers to check it out.  I'll just say, for now, that my co-authors and I certainly agree that "religious freedom is a basic human right" and that "religious freedom is not just for groups we 'admire' and not just for groups that help 'the poor and oppressed.'"  Our piece did not argue or suggest otherwise.  (We had nothing to do with the title, which -- as Robby and Ryan point out -- unfortunately used the word "admire.")

August 6, 2015 in Garnett, Rick | Permalink

Prof. Robert A. Burt, R.I.P.

I was very sorry to learn that Yale Law School Prof. Robert A. Burt ("Bo") passed away on August 3.  Here is a bit from Yale's announcement (quoting Prof. Anthony Kronman):

"The range of Bo's interests and accomplishments is startling enough. But what is more amazing still is that all of his writings express Bo's unfaltering belief in the value of conversation, dialogue and the continuing struggle to find common ground, and an abiding suspicion of authoritarianism in all its forms, whether it be a doctor's imperious prescription, or the Supreme Court's deaf assertion of power, or even God's declaration that he need not explain himself to anyone at all."

Kronman continued, "Bo's humane resistance to the reliance on mere power and his insistence that every type of authority, human or divine, is an interactive achievement, is the theme of all his writings. It represents the enduring achievement of this noble human being. It is there in his work for all to see. Still, I miss the man himself, and count his friendship among the best things that have ever happened to me."

Bo was a gentle, thoughtful, caring, generous, and deeply good man.  He was also my teacher, mentor, and friend.  I learned so much from him and he shaped profoundly what I think of as my academic vocation.  He set, and lived, a standard for teacher-scholars that I wish I could meet.  

I first "met" Bo in the pages of Prof. Joseph Goldstein's strange, but fascinating and provocative, Criminal Law casebook  , in which his brief in the Michigan case of Kaimowitz v. Michigan Department of Mental Health -- which involved experimental psychosurgery on a prisoner -- was excerpted.  He became for me, over the course of many conversations, a few classes, and my reading of several of his books, including The Constitution in Conflict, a model and an always-welcome challenge.  My first law-review article, 19 years ago, was inspired by him.  Our last face-to-face conversation, during a visit by him to Notre Dame for a workshop, was about a chapter on Job in what became his fascinating political-theory workIn the Whirlwind:  God and Humanity in Conflict.

The Yale Law School was fortunate, and many hundreds of YLS graduates are blessed, to have known, worked with, and learned from Robert Burt.  May the memory of this righteous one be a blessing.

August 6, 2015 in Garnett, Rick | Permalink

Wednesday, August 5, 2015

Douthat responds (powerfully) to the "pro-life case for Planned Parenthood"

Here.   Among other things, Douthat explains why the often-lodged-but-still-not-sound claim that "pro-lifers are hypocrites unless they enthusiastically endorse extensive public funding for contraception" is, well, still-not-sound. 

August 5, 2015 in Garnett, Rick | Permalink

Inazu, McConnell, and Garnett on religious freedom and civil society . . . and taxes

John Inazu (WUSTL), Michael McConnell (Stanford), and I have this piece, "How To Protect Endangered Religious Groups You Admire," up at Christianity Today.  It's about the First Amendment Defense Act specifically and, more generally, about the importance of not moving, post-Obergefell, to pressure or penalize religious institutions and agencies that do important and valuable work . . . and that continue to embrace standard Christian teachings on marriage and sexuality.  Check it out.  Comments welcome.  Here's a bit:

Today, tens of thousands of religious organizations, and tens of millions of Americans, continue to believe and teach that the proper understanding of marriage is a union of one man and one woman. But they do far more than believe and teach this and other views.

They also give food, clothing, shelter, counsel, and comfort to millions of Americans in need. They offer some of the most important and desperately needed health, educational, and social services in the country. And they provide billions of dollars and thousands of full-time workers for international relief aid that serves vulnerable migrants, refugees, and persecuted minorities. The work of religious organizations has long been and continues to be central both to religious believers’ lives and to the welfare of others. Our communities—and, indeed, communities around the globe—would be much worse off without these organizations and their faith-informed good works.

August 5, 2015 in Garnett, Rick | Permalink