Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

A Member of the Law Professor Blogs Network

Monday, July 14, 2014

Robert Christian on Obama's Pro-Family Proposals

Robert Christian, of the Millennial blog and Democrats for Life, writes at Time of the President's policy proposals at the recent White House summit on working families:

The leaders and members of the Church are the perfect partners in this push for economic justice and stronger families. From supporting the Pregnant Workers Fairness Act to minimum wage increases to a paid family leave program, Catholics should take up the battle to provide American families with the flexibility, support and economic security they need to thrive in the 21st Century.

July 14, 2014 in Berg, Thomas | Permalink

Shiffrin on Hobby Lobby

First Amendment scholar Steven Shiffrin has a typically thoughtful post on the Hobby Lobby decision. Part of what makes the post so good is that it follows from Steve’s own longstanding and (to me) persuasive criticisms of the extraordinary lengths to which we are prepared to recognize rights of free speech. Parenthetically, the last time I checked, Steve is not particularly well-known for his dyed-in-the-wool conservatism. But setting aside that rather tedious ideological point, it is quite striking to see the expansive interpretation of the rights of speech (whatever the source–constitutional or statutory) in conjunction with what critics of decisions like Hobby Lobby argue should be a narrowing of the rights of religious freedom. Steven goes through a few of the issues, but among the best parts of Steve’s post is the following:

I am puzzled by the selective tolerance of secular liberals. These liberals are prepared to protect speech involving depictions of animal cruelty, gruesomely violent video games sold to children, and the intentional infliction of emotional distress at military funerals. They would also agree that the state should not compel people to violate their conscience without substantial justification.

Although the Court’s decision in Hobby Lobby makes clear that none of the involved employees would be denied access to insurance coverage for contraceptives, most secular liberals would deny the freedom of religion claim….

Why protect those who traffic in depictions of the abuse of animals and the like, but not protect the conscience of conservative Christians?

July 14, 2014 in DeGirolami, Marc | Permalink

The essential rule of interpretation of Pope Francis

The essential rule of interpretation of Pope Francis: No, it's not the great-nice-try that was the "hermeneutic of continuity."  Instead, according to Fr. Bernd Hagenkord, SJ, Head of the German-language Section of Vatican Radio, it is power:

Francis knows exactly how power is spelled,” says Bernd Hagenkord, a Jesuit who is in charge of German programming for Vatican Radio. “He’s a communicator in the league with Mother Teresa and the Dalai Lama.They say he’s being unclear, but we know exactly what he means.

For the context of the quote, follow the lead in Rorate Caeli

As one senior European prelate who has served under the last three popes once told me, "Francis doesn't often refer to himself Pope, but when you're in his presence, you know that he knows he's the Pope, and that's why he doesn't need to call himself Pope."  Indeed, we know exactly what he means.    

July 14, 2014 in Brennan, Patrick | Permalink

Sunday, July 13, 2014

Mixed messages on poverty from the Domus [UPDATED]

Pope Francis has stressed his desire for a "poor Church for the poor."  Now the same Vicar of Christ has convened many of the world's most highly paid athletes, participants in the recent World Cup, to play a soccer match in Rome for the purpose of promoting "dialogue" among world religions.

We in the United States have heard much about a "consistent ethic of life."  I'm just wondering, therefore, as something of a thought experiment, what place professional sports, especially (but not only) at the richest level, would have in a "consistent ethic of poverty."  

Consider how much it costs to travel far to attend the World Cup.  Consider, further, what immediate benefit, if any, the playing of the World Cup has to the poor of Brazil. I've been to Brazil; I've seen (and smelled) the poverty; and I can conjure the impassable gap between the hovels and the stadium.

We've heard Pope Francis pass moral judgment on everything from pets (he's down on them) to nice cars (he won't ride in them and criticizes some who do).  What about the bread and circuses of professional sports industries that concentrate vast sums of money in the hands of small groups of those who are lucky enough to be able-bodied, coached, and thus relieved of life's ordinary burdens in order to "play" all the time?  Don't get me wrong, sport has its place in a healthy human life, perhaps even as an example of what some refer to as the "basic good" known as "play."  Sana mens in sano corpore, and all that.  

But what about the economics of professional sport as such?  What has the Holy Father to say on this topic?  Perhaps I've missed it, but I do keep a pretty attentive eye on what gets published under the name Franciscus, including the redacted homilies preached in the Domus, and I can't recall any condemnation of the mega-wealth accumulated on the backs of the poor (and the middle-class) in the name of, say, World Cup.

I recently read an editorial some place that baldly contended that the World Cup mocks the poor.  It's a contention that's worth pondering, especially now as the beneficiaries of the World Cup prepare to gather in Rome at Pope Francis's invitation in order to engage in "dialogue."  

(Never mind the lack of all evidence that professional athletes are dialogically inclined or adept.  In any event, calling something "dialogue" doesn't necessarily make it a good idea, not even in this post-Vatican II Church).    


UPDATE:  A reader helpfully called my attention to an address Pope Francis delivered in May 2, 2014, to Italian soccer players and officials in which he warned that "today soccer is turning into a big business: advertising, television, and so on. But the financial factor must not prevail over the sporting factor because it risks polluting everything, both at the national and local level."  A story about the address is here

I'm not sure exactly what the Pope meant to rule out when he stated on May 2nd that "the financial factor must not prevail over the sporting factor."  Speaking a week later to the U.N. officials in Rome, the Holy Father set off a firestorm by speaking far more bluntly when he called attention to governments' responsibility to effect "legitimate redistribution" of wealth.  By challenging modern governments to concern themselves with legitimate redistribution, the Pope was doing no more than commendably echoing basic tenets of traditional Catholic social doctrine.  One wonders, therefore, how the Pope would urge experts to apply that doctrine to the mega-wealth amassed by the beneficiaries of the professional sports industries.    


July 13, 2014 in Brennan, Patrick | Permalink

Saturday, July 12, 2014

Tragedy and Irony: Constitutional System, Political Suasion, and History (ADDENDUM Appended)

Here's another one for the Berg-DeGirolami exchange on the subject. For previous entries, see this, this, this, and this from my buddy Tom, and this and this from me. This post focuses on matters of constitutional system, political suasion, and my own appeal to history. 

But before getting to that, I want to address the much less central attitudinal or dispositional point about clever detachment. Tom's interlocutor interprets the passage I quoted from Shaffer in a very creative and appealing way, and Tom also notes that the ironic disposition can be turned inward as well. I don't wish to contest any of these points. I am not a Niebuhr scholar, and these are elegant defenses against my criticism. I guess the reason for my criticism is that I thought it was an important part of the ironic approach to point out to others that that their viewpoints and outlooks are partial and often incapable of seeing what's really true, that they have missed some self-deflating hypocrisy in their own position, and that if they only saw the missing piece, they'd be much more reasonable and would probably alter their views on some deeply held matter. If I have stated this view correctly (Tom, please tell me if not), whatever its merits, this is different than a tragic approach, which begins with the presumption that differences of opinion on deep questions among contestants really are what the contestants say they are, and then goes about explaining why they are so intractable. But I am happy to accept the rejoinder that tragedians can exhibit their own sins. Almost certainly one of these is a too-quick-and-easy pessimistic retreat. 

Onto more substantive matters.

1. Constitutional System: the Abstract and the Particular.

You say that you doubt that a tragic approach reflects "our constitutional system." The reason is that there is a shared, core consensus about certain basics of constitutional rights. Of my skepticism about deep, shared attachments, you write: "The same things could be said about even the most basic rights of religious freedom—or to pick a value that seems to be accepted across the constitutional spectrum today, the most basic rights of freedom of speech. The other side's ability to congregate even in private, or to exercise the most minimal ability to express its views, also “inevitably detracts from the larger moral vision” of its opponents. Is it the situation that there is no commitment in principle to any shared meaning of freedom of speech, even at the core—that every protection of even the most basic ability to speak reflects no more than a case-by-case compromise?" 

It is instructive (and sad, at least to me) that you must move so quickly away from religious freedom and to the freedom of speech. That move suggests that perhaps the ambit of tragedy is expanding, as the common core that you reference inexorably diminishes seemingly by the year. And for the first time at least since I have been writing (not a long time, I admit!), I am seeing serious arguments made by serious scholars who are contesting the core values of the freedom of speech as well. In a very few years, I would not be surprised in the least to see that these arguments (like those about religious freedom) have become more mainstream as well.

But I think I can agree with the basic point you are making, even as to religious freedom, if phrased in something like this way (I make the fuller argument in Chapter 4 of my book): It is quite possible to decide whether a certain set of values corresponding to a constitutional right (like the freedom of speech) is good in the abstract, without being able to decide in advance whether it is powerful enough in a specific situation to defeat another conflicting value. But it is only in the value's embodiment in a particular, real-world struggle that we can make judgments about how strong it really is. Take values like equality, law-abidingness, autonomy, the authority of conscience, liberty, and tolerance.

Continue reading

July 12, 2014 in DeGirolami, Marc | Permalink

Friday, July 11, 2014

A troubling development

The Boston Business Journal reports that Gordon Collegem a "Christian college on the North Shore[,] faces scrutiny from the body that accredits colleges and universities in New England."  This "scrutiny" is a result, according to the report, of the fact that "Gordon College President D. Michael Lindsay thrust the college into the spotlight a week ago by signing a letter to President Barack Obama requesting that he exclude religious institutions from an executive order barring organizations that take federal money from discrimination in hiring based on sexual orientation."

Why might this be, as I suggest, troubling?  Because, as this post describes, "the federal government relies on accrediting agencies to decide which colleges qualify for the $157 billion of federal funding provided annually to colleges and universities[.]"  Those who care about institutional pluralism and diversity should be concerned that a college President's request that a coming policy change take account of religious freedom results in such a not-so-subtle threat of punishment.

July 11, 2014 in Garnett, Rick | Permalink

Please nominate MOJ for a spot in the Best 100 Legal Blogs

More info here.  I feel confident that nominations will be appropriately appreciated by Our Lady, Mirror of Justice! 

July 11, 2014 in Garnett, Rick | Permalink

Thursday, July 10, 2014

Quote of the Day: Government and Love of Neighbor

The government cannot love a neighbor, and that is why it has failed to solve the problem of poverty. Todd_Rokita,_Official_Portrait,_112th_Congress

Rep. Todd Rokita of Indiana (full post here).


July 10, 2014 | Permalink

The Connection of Separationism and Radically Limited Government

In rereading a wonderful piece by Professor Michael McConnell about Edmund Burke’s view of the relationship between an established religion and a regime of toleration of religion, I came across this deeply insightful discussion of the close connection of a separationist idea of religion and government (as envisioned by Thomas Jefferson, for example) and the idea that government itself had very limited functions in the first place:

There is a close, but generally unrecognized, connection between the idea of the “Wall of Separation” and the idea of a radically limited government. Once government shakes off its limited role and concerns itself with the general welfare of the people, including their cultural and intellectual lives, it has leapt the “Wall” and entered the traditional sphere of religion. In contrast to many of our Founders, Burke had a more modern conception of the jurisdiction of the state, which did not permit him the easy answer of a “Wall of Separation.” If the government is “a partnership in all science; a partnership in all art; a partnership in every virtue and in all perfection,” then it necessarily will be conveying a collective teaching on science, art, virtue, and perfection (whether we label the teaching a “religion” or not). It follows not that an establishment is desirable, but that it is inescapable. Some sort of opinions will necessarily guide the state in its “superintending control over…the publicly propagated doctrines of men.” If the Jeffersonian-Madisonian ideal of the limited state is abandoned as naive or outmoded, then the serious questions become how to protect against arbitrary or tyrannical use of this power and how to respect the legitimate rights of those who disagree with the official orthodoxy.

Michael W. McConnell, Establishment and Toleration in Edmund Burke’s ‘Constitution of Freedom,’ 1995 Supreme Court Review 393, 444-45 (with citations to Burke’s Reflections on the Revolution in France and his Speech on the Petition of the Unitarians).

July 10, 2014 in DeGirolami, Marc | Permalink

"Can Markets Make Citizens?"

This paper ("Can Markets Make Citizens?  School Vouchers, Political Tolerance, and Civic Engagement", appears in the latest Journal of School Choice and is well worth a read.  Here is the abstract:

School voucher programs challenge the traditional role of the public school as the builder of citizens, raising the question of whether private schools can provide a civic education of equal quality. In this study, we use survey data from the Milwaukee voucher program to investigate the relative benefits in civic outcomes of attending a voucher school. We find that voucher students demonstrate modestly higher levels of political tolerance, civic skills, future political participation, and volunteering when compared to public schools students. Further analyses indicate these results may be driven in part by those students attending Catholic and other religious schools.

July 10, 2014 in Garnett, Rick | Permalink