Thursday, May 5, 2016
I've posted the above-titled article on SSRN. It's forthcoming in the Notre Dame Law Review, from the excellent symposium that the Review and Rick organized on the 50th anniversary of the Declaration on Religious Freedom. My contribution doesn't mention the Declaration. But it follows in its spirit, since it deals with a crucial question about the ability of religious organizations to have freedom in their public, not just their insular private, activity. The article responds to the claim, growing in strength in the courts and academia, that there should be no legal accommodation for religious organizations in activities where they employ or serve persons outside the faith. (That, of course, was a key premise of the narrow original exception from the HHS contraception mandate.)
I present a defense of a prima facie duty to accommodate what I call "partly acculturated" religious activities, which are "'acculturated in that they reach out to the broader society to provide services of general civic value, but unacculturated in that some of their doctrines and practices clash with dominant secular values [and therefore claim religious freedom protection]." From the abstract:
The law should not force all religious organizations and activities into one of the two polar categories, acculturated or unacculturated. Part II presents several reasons why there is a strong interest in protecting the freedom to engage in partly acculturated religious activity. Among other things, I argue, relying on work in sociology of religion, that refusing accommodation to partly acculturated activity risks losing the distinctive vigor that such organizations offer in providing services to society: their countercultural positions tend to create a sense of identity and commitment, while their acculturation means they apply that identity to serve society rather than withdraw from it.
Accommodating partially acculturated activity does present distinctive challenges because of effects on non-adherents. Part III proposes addressing those, and drawing lines concerning accommodation, by relying on concepts of:(1) notice to employees and clients concerning the organization’s religious identity, and (2) alternative sources of receiving the services or opportunities in question.
And from the article's Conclusion:
Claims for the protection of partly acculturated religious activity present challenges and tensions. The scope of protection must of course take account of effects that these activities have on non-adherents, whether employees or clients. But refusing such protection has serious costs. The opposition to any accommodations for religious activity that affect non-adherents has the effect—and very possibly the aim—of marginalizing organizations that straddle the line between their own members and the broader society. It will force these organizations to deal only with their own adherents, and play less and less of a role in the broader society, if they want to adhere to their doctrinal beliefs. For all the reasons above, this would be a bad development: for religious equality, for the vigor of our educational and social service sectors, and for our ability to engage with each other across lines of disagreement.
Wednesday, May 4, 2016
Tuesday, May 3, 2016
My colleague and partner in crime, Mark Movsesian, has posted his paper, Of Human Dignities, which argues that the concept of dignity as a norm of international human rights is in fact beset by fundamental disagreements about its content. Here's the abstract:
This paper, written for a symposium on the 50th anniversary of Dignitatis Humanae, the Catholic Church’s declaration on religious freedom, explores the conception of human dignity in international human rights law. I argue that, notwithstanding a surface consensus, no generally accepted conception of human dignity exists in contemporary human rights law. Radically different understandings compete against one another and prevent agreement on crucial issues. For example, the Catholic Church and other religious bodies favor objective understandings that tie dignity to external factors beyond personal choice. By contrast, many secular human rights advocates favor subjective definitions that ground dignity in individual will. These conceptions clash, most notably in contemporary debates on traditional values resolutions and same-sex marriage. Similarly, individualist conceptions of dignity, familiar to most of us in the West, compete with corporate conceptions that emphasize the dignity of traditional religions — a clash that plays out in the context of the proselytism and the right to convert. Rather than try to forge agreement on a universal definition of dignity, I argue, we lawyers should commit to a more modest approach, one that accepts the reality of disagreement and finds a humane way to accommodate it.
Two passages from Edmund Burke, A Letter to William Smith, Esq., on the Subject of Catholic Emancipation
I recently had occasion to come across this letter by Edmund Burke: A Letter to William Smith, Esq., on the Subject of Catholic Emancipation.
One portion of it reminded me of a homily by Fr. Walter Burghardt, S.J., that I was privileged to hear as a graduate student. Its theme was the danger of religious indifferentism. On that topic, here's Burke to Smith:
You need make no apology for your attachment to the religious description you belong to. It proves (as in you it is sincere) your attachment to the great points in which the leading divisions are agreed, when the lesser, in which they differ, are so dear to you. I shall never call any religious opinions, which appear important to serious and pious minds, things of no consideration. Nothing is so fatal to religion as indifference, which is, at least, half infidelity. As long as men hold charity and justice to be essential integral parts of religion, there can be little danger from a strong attachment to particular tenets in faith." (emphasis added)
Another portion of it reminded me of various currents in American public life today, including in our public law:
My whole politics, at present, centre in one point, and to this the merit or demerit of every measure (with me) is referable, -- that is, what will most promote or depress the cause of Jacobinism. What is Jacobinism? It is an attempt (hitherto but too successful) to eradicate prejudice out of the minds of men, for the purpose of putting all power and authority into the hands of the persons capable of occasionally enlightening the minds of the people. * * *
* * *
As the grand prejudice, and that which holds all the other prejudices together, the first, last, and middle object of their hostility is religion. With that they are at inexpiable war. They make no distinction of sects. A Christian, as such, is to them an enemy. What, then, is left to a real Christian, (Christian as a believer and as a statesman,) but to make a league between all the grand divisions of that name, to protect and to cherish them all, and by no means to proscribe in any manner, more or less, any member of our common party? The divisions which formerly prevailed in the Church, with all their overdone zeal, only purified and ventilated our common faith, because there was no common enemy arrayed and embattled to take advantage of their dissensions; but now nothing but inevitable ruin will be the consequence of our quarrels. I think we may dispute, rail, persecute, and provoke the Catholics out of their prejudices; but it is not in ours they will take refuge. * * *
* * *
It is a great truth, and which in one of the debates I stated as strongly as I could to the House of Commons in the last session, that, if the Catholic religion is destroyed by the infidels, it is a most contemptible and absurd idea, that this, or any Protestant Church, can survive that event. Therefore my humble and decided opinion is, that all the three religions prevalent more or less in various parts of these islands ought all, in subordination to the legal establishment as they stand in the several countries, to be all countenanced, protected, and cherished, and that in Ireland particularly the Roman Catholic religion should be upheld in high respect and veneration, and should be, in its place, provided with all the means of making it a blessing to the people who profess it, -- that it ought to be cherished as a good, (though not as the most preferable good, if a choice was now to be made,) and not tolerated as an inevitable evil. If this be my opinion as to the Catholic religion as a sect, you must see that I must be to the last degree averse to put a man, upon that account, upon a bad footing with relation to the privileges which the fundamental laws of this country give him as a subject. I am the more serious on the positive encouragement to be given to this religion, (always, however, as secondary,) because the serious and earnest belief and practice of it by its professors forms, as things stand, the most effectual barrier, if not the sole barrier, against Jacobinism. The Catholics form the great body of the lower ranks of your community, and no small part of those classes of the middling that come nearest to them. You know that the seduction of that part of mankind from the principles of religion, morality, subordination, and social order is the great object of the Jacobins. Let them grow lax, skeptical, careless, and indifferent with regard to religion, and, so sure as we have an existence, it is not a zealous Anglican or Scottish Church principle, but direct Jacobinism which will enter into that breach. Two hundred years dreadfully spent in experiments to force that people to change the form of their religion have proved fruitless. You have now your choice, for full four fifths of your people, of the Catholic religion or Jacobinism. If things appear to you to stand on this alternative, I think you will not be long in making your option. * * *
* * *
January 29, 1795. Twelve at night.
Sunday, May 1, 2016
Michael Perry's welcome remembrance of Fr. Daniel Berrigan's witness reminded me of something John Courtney Murray wrote late in We Hold These Truths: "A friendly critic, Professor Julian Hartt of the Yale Divinity School, had this to say: 'Father Murray has not, I believe, clearly enough come to terms with the question behind every serious consideration of limited war as a moral option, i.e., where are the ethical principles to fix the appropriate limits? Where, not what?: can we make out the lineaments of the community which is the living repository (as it were) of the ethical principles relevant and efficacious to the moral limits of warfare?' This is a fair question." A fair question, indeed.
Commenting on Murray's own ensuing judgment that the "American consensus" he invoked no longer obtained, even then, Michael Baxter concludes as follows: "In the years since Murray's death, Catholic social ethicists in the United States have dedicated themselves to pursuing Murray's agenda. But the American consensus remains as elusive as it was in Murray's day; indeed, more elusive. With time, this will no longer point to the plausibility of Murray's compatibility thesis, but rather to its implausibility." A fair conclusion? One awaits countervailing evidence.
What ought "we" do while we wait for the consensus to appear? Vote in every next general election ad absurdum? The Catholic positions defended by Murray on contentious issues, such as nuclear weapons and abortion, have never prevailed in public discourse, let alone in law. The "where?" question, half-answered by Murray, looms larger as every political cycle passes and the returns thereof veto any hope of actualizing Murray's imagined consensus. The natural law never was what the consensus-mongers said it was, and meanwhile the human deficit in effective ability to implement the natural law grows greater as religion is reduced by law, at least for law's purposes, to the efficacy of incense.
How I long for supernatural powers!
said the novice mournfully to the holy one.
I see a dead child
and I long to say, Arise!
I see a sick man
I long to say, Be healed!
I see a bent old woman
I long to say, Walk straight!
Alas, I feel like a dead stick in paradise.
Master, can you confer on me
The old man shook his head fretfully
How long have I been with you
and you know nothing?
How long have you known me
and learned nothing?
Listen; I have walked the earth for 80 years
I have never raised a dead child
I have never healed a sick man
I have never straightened an old woman's spine
men grow sick
the aged fall
under a stigma of frost
And what is that to you or me
but the turn of the wheel
but the way of the world
but the gateway to paradise?
Then you would play God
would spin the thread of life and measure the thread
5 years, 50 years, 80 years
and cut the thread?
I have wandered the earth for 80 years
I confess to you,
sprout without root
root without flower
I know nothing of supernatural powers
I have yet to perfect my natural powers!
to see and not be seduced
to hear and not be deafened
to taste and not be eaten
to touch and not be bought
would you walk on water
would you master the air
would you swallow fire?
Go talk with the dolphins
they will teach you glibly
how to grow gills
Go listen to eagles
they will hatch you, nest you
eaglet and airman
Go join the circus
those tricksters will train you
in deception for dimes-
Bird man, bag man, poor fish
spouting fire, moon crawling
at sea forever-
Do you seek miracles?
draw water, hew wood
Listen; blessed is the one
who walks the earth 5 year, 50 years, 80 years
and deceives no one
and curses no one
and kills no one
On such a one
the angels whisper in wonder,
behold the irresistible power
of natural powers-
of height, of joy, of soul, of non belittling!
You dry stick-
in the crude soil of this world
spring, root, leaf, flower!
around and around
an inch, a mile, the world's green extent,-
a liberated zone
Saturday, April 30, 2016
Of course it does. Religious faith -- and religious authority -- are inconvenient and threatening to statist and anti-human dictatorships. This bit probably isn't intended by the PRC to be funny:
China has taken an assertive tone with Tibetan Buddhism, too, emphasizing that Beijing holds authority over the reincarnation of the Dalai Lama. In November, Zhu Weiqun, a top ethnic and religious-affairs leader, wrote that having political control over reincarnation constitutes “an important manifestation of the Chinese central government’s sovereignty over Tibet.”
Mark Zimmerman reports, here, that Richard Doerflinger, "the U.S. bishops’ legislative point man for pro-life issues for nearly four decades," is retiring. "Everything old is new again," he commented recently. Here's a bit:
Doerflinger sees many signs of hope for the pro-life movement, including the personal witness of Pope Francis. “He’s doing something very important, getting back to the core message of God’s love and mercy. It’s in that context all these issues have to be placed,” he said.
The pro-life advocate also is inspired by “the crowds of young people we see every year at the Vigil Mass and March for Life. We have very enthusiastic young Catholics who understand these issues and are ready to take the lead on them.” . . .
I had the privilege of teaching one of Mr. Doerflinger's children at Notre Dame Law School and was able to meet him a time or two. Like the article says, he was, and is, a "pro-life giant." Well done, faithful servant.
Thursday, April 28, 2016
Ed Whelan has six posts at NRO following his original comment on the Fourth Circuit panel decision last week in G.G. v. Gloucester County School Board. Whelan's sixth post here links to the prior five. And, for those interested in more, Judge Niemeyer's dissent, beginning on page 45, is very clear and well worth the read in full.
It's a longstanding piety -- at least since the Land O'Lakes statement -- among many in Catholic higher education specifically that Catholic universities should not be beholden to or bound by "external" authorities -- meaning, usually, ecclesiastical authorities. But, of course Catholic universities are tightly constrained by and seem more than willing to be constrained by a wide range of "external" authorities, including accrediting and licensing bodies, government conditions on funding and contracts, grantmaking bodies, and -- of course -- the NCAA.
As this USA Today story describes, things are moving rapidly toward a confrontation between religious institutions' rules and expectations regarding sexual morality, on the one hand, and the expanding understanding on the part of the NCAA (and corporate sponsors of athletics) of the non-discrimination norm. Here is just a bit:
The Education Department said in 2014 that transgender students are protected by Title IX. Since, dozens of religious schools — mostly smaller and lesser known, and none of the schools mentioned in this story — have asked for waivers that allow them to deny admittance to transgender students. And that has turned into a flashpoint for the NCAA.
Recently more than 80 LGBT organizations wrote a letter to the NCAA urging it to divest membership of religiously affiliated schools that ask for such waivers. “These requests,” the letter said, “are directly in conflict with the NCAA’s longstanding commitment to diversity and inclusion for all people regardless of sexual orientation and gender identity.”
. . .
Schulz, chair of the NCAA board of governors, expressed willingness to take up the issue.
“I really liken it to some of the issues in the deep South for African American student-athletes going back to the 1960s,” he says. “We can look back now and say, ‘I can’t believe these teams weren’t playing each other because they had African-American basketball players.’ We can look back now and say, ‘That is unfathomable.’
“I’m not so sure that we wouldn’t look back in 20 or 30 years and say the same thing about some of our LGBT athletes. … We need to talk about it, but at the same time the NCAA has a powerful bully pulpit. And if we talk about inclusivity, I think it’s important that we take a stand on these social issues.”
In my view (as I've written here and here) it is usually a mistake to think that the non-discrimination norm, appropriately understood, requires governments (or, I am inclined to say, bodies like the NCAA) to punish, regulate, or even discourage religious institutions from adopting policies that reflect and promote their religious mission, even with those policies are not congruent with the rules that control the liberal state itself. The NCAA should allow, say, BYU or Baylor to be themselves. (I do not agree that policies reflecting traditional religious teachings on sexual morality are usefully compared to race discrimination.) But, I am not optimistic either that the NCAA et al. will stay their hand or that religious universities with major sports programs will resist. We'll see. . ..
UPDATE: . . . and we are seeing ("NCAA Will Not Host Final Four in Anti-LGBT States").