ProfessorBainbridge.com

Only a liberal Episcopalian could possibly believe that ...

... the 1960s were a "revelation." In fairness, however, I guess other species of liberal mainstream Protestants might also confuse Woodstock with the Sermon on the Mount. Which might explain why they're becoming extinct.

Obama's faith

My former UIUC law colleague Gerry Bradley has parsed President Obama's musings on faith and concluded that Obama is "flatly instructing believers that, no matter what they presently think or what their Church teaches, they should think that their religion has no true propositional content."

Obama conveyed the message that one cannot be practically certain about any conviction that is held by faith. He thus implicitly rejected many essential truths of the University of Notre Dame’s Catholic faith, including the truth that it is rationally defensible to assent with certitude to the tenets of the faith.

It's a fascinating essay.

Methodists reject call for Israel divestment

Via HuffPo:

United Methodists twice rejected resolutions on Wednesday (May 2) that called for the denomination to divest from companies accused of contributing to the Israeli occupation of Palestinian territories.

Neither vote was particularly close, with about two-thirds of the 1,000 delegates gathered in Tampa, Fla., through May 4 rejecting the calls for divestment.

Back in 2004, I wrote a column for TCS entitled Those Divesting Presbyterians, in which I roundly criticized the Presbuterian Church (USA) for its decision to divest from multinational corporations doing business in Israel. (The Church later backtracked from its divestment effort.) I wrote that:

Let's start with a basic question: Will the PC(USA)'s decision "work"? In other words, do divestment campaigns tend to achieve their proponent's goals? The clear answer from the empirical literature is "no." ...

If the PC(USA) mavens who passed this proposal were simply dealing with their own investments, who could gainsay their right to shoot their portfolios in the foot? Apparently, however, the plan encompasses divesting the retirement funds of Presbyterian pastors and workers invested in denominational pension plans. As such, their decision illustrates a perennial problem of institutional investment; namely, Quis cusotdiet ipsos custodies.

Like the vast majority of large institutional investors, the PC(USA)'s pension plans manage the pooled savings of small individual investors. From a governance perspective, there is little to distinguish such institutions from corporations. Plan investors have no more control over the election of company trustees than do shareholders over the election of corporate directors. Nor do the holders of such shares have greater access to information about their holdings, or ability to monitor those who manage their holdings, than do corporate shareholders. Worse yet, although an individual investor can always abide by the Wall Street Rule with respect to corporate stock (it's easier to switch than fight), he cannot do so anywhere nearly as easily with respect to investments such as these denominational pension plans.

Managers of pension plans are fiduciaries of the beneficiaries of those plans. When they pursue a social agenda nearly certain to result in poorer performance, they are disserving their beneficiaries. The activists at the PC(USA) may have gotten a warm and fuzzy feeling from taking a slap at Israel, but in doing so they injured Jewish-Christian relations, besmirched the one functioning democracy in the Middle East, and stabbed their own people in the back. All for the sake of a gesture that experience teaches will be fruitless.

I'm glad to see the Methodists decided not to go down that road.

Some advice, from a student, for profs at Catholic Law Schools

What I’d like to suggest to all Professors is this: if you’re at a University that allows you to be visibly Catholic, take advantage of that opportunity next semester (you can’t start mid-semester; that would be weird).  It doesn’t have to be anything dramatic -- part of the strength of the Contracts prayer was that it was said without any hint of the theatrical, it just set the intention for a class where few of us felt “delicate to interpret or ready to speak.”  From the perspective of someone who wasn’t always Catholic, this kind of prayer isn’t confrontational or in-your-face.  It’s nice.

via mirrorofjustice.blogs.com

The lead up to that conclusion is well worth reading.

Paul Ryan's take on Catholic social teaching

Daniel Henninger quotes Paul Ryan's explanation of how Catholic social teaching influenced his budget proposal:

"A person's faith is central to how they conduct themselves in public and in private. So to me, using my Catholic faith, we call it the social magisterium, which is how do you apply the doctrine of your teaching into your everyday life as a lay person?

"To me, the principle of subsidiarity . . . meaning government closest to the people governs best . . . where we, through our civic organizations, through our churches, through our charities, through all of our different groups where we interact with people as a community, that's how we advance the common good. By not having big government crowd out civic society, but by having enough space in our communities so that we can interact with each other, and take care of people who are down and out in our communities.

"Those principles are very, very important, and the preferential option for the poor, which is one of the primary tenets of Catholic social teaching, means don't keep people poor, don't make people dependent on government so that they stay stuck at their station in life. Help people get out of poverty out onto a life of independence."

Predictably this has outraged the Catholic left, which basically equates CST with the Democrat Party platform.

Personally, I agree with Rob Vischer that CST is incapable of "easy categorization."

Having said that, however, I think it is essential that Catholic conservatives like Ryan articulate an alternative interpretation of CST that departs from the left-liberal conventional wisdom. 

As with all of the Church’s ordinary teaching, the faithful “are to adhere to [the social teaching] with religious assent.” United States Catholic Conference, Catechism of the Catholic Church ¶ 892 (2d ed. 1997). Yet, the church encourages lay initiative “especially when the matter involves discovering or inventing the means for permeating social, political, and economic realities with the demands of Christian doctrine and life.” Id. at  899.

Mark Sargent observed that “the Catholic university—and hence, the Catholic law school—is where the Church does its thinking.” Mark A. Sargent, An Alternative to the Sectarian Vision: The Role of the Dean in an Inclusive Catholic Law School, 33 Univ. Toledo L. Rev. 171, 181 (2001). In my view, one properly may generalize Sargent’s proposition to the believing laity as a whole. Hence, it is the task of Catholic intellectuals to exercise critical reflective judgment with respect to society, the Church, and the relationship between the two.

An active and critical role for the laity seems especially important with respect to economic life. To be sure, when it comes to issues such as the degree of state intervention in the economy, for example, the Church outlines basic principles but recognizes substantial latitude with respect to their translation into public policy. Nowhere, for example, does the Church state what percentage of the economy should by controlled by the state, thus leaving a great deal of room for prudential judgment by Catholics.

Nevertheless, as Michael Novak has noted, the Catholic hierarchy tends to be poorly trained in economics and inexperienced with the business world. They “are likely to inherit either a pre-capitalist or a frankly socialist set of ideals about political economy.” Michael Novak, Toward a Theology of the Corporation 59 (rev. ed.1990). Consequently, the hierarchy is “more likely to err in this territory [i.e., economic justice] than in most others.” Id. at 12.

Thoughtful and faithful applications and critiques of the social teaching from Catholics like Paul Ryan are thus essential to ensure that that teaching remains resistant to “easy characterization.”

Pileggi on The Moral Aspects of a Lawyer’s Fiduciary Duty

FOTB Francis Pileggi has written an interesting essay entitled The Moral Aspects of a Lawyer’s Fiduciary Duty,in which he discusses the "the religious origins of the foundation for many obligations of a lawyer (and others in a position of trust)." Recommended reading.

Catholic Legal Bibliography

The Catholic University of America's Columbus School of Law has put on line an updated version of its annotated bibliography Catholic Dimensions of Legal Study:

In 1998 the United States Catholic Bishops challenged Catholic schools at all levels to “integrate Catholic social teaching into the mainstream of all Catholic educational institutions and programs.” (National Conference of Catholic Bishops, Sharing Catholic Social Teaching: Challenges and Directions, 1998). In their call to action, the bishops urge that Catholic schools “ensure that every Catholic understands how the Gospel and church teaching call us to choose life, to serve the least among us, to hunger and thirst for justice, and to be peacemakers.”

The legal academy plays a unique and vital role in imparting the Church’s social justice tradition. The study and teaching of law provides an ideal context in which to reflect on the lawyer’s role in “breaking down the barriers that obstruct God’s kingdom of justice and peace.” The years of law school study provide the student with a special opportunity not only to learn the law, but to discover how the law is enriched by an understanding of the Church’s social message. The role and responsibility of the law teacher takes on an added urgency in the light of the Bishops’ words that the “sharing of our social tradition is a defining measure of Catholic education and formation.”

Catholic Dimensions of Legal Study is an attempt by the librarians of the Judge Kathryn J. DuFour Library of The Catholic University of America Columbus School of Law to respond to the bishop’s call for action. It seeks to identify and describe Catholic resources useful for law teachers, law students and practicing attorneys who are seeking to integrate their faith commitment into a life in the law.

The first edition of this bibliography was published in the fall of 2002. An expanded and updated second edition followed in 2004. Both editions were print documents. This current effort moves the bibliography to the Web, making it available in an expanded and searchable format. The bibliography contains over 1,000 entries and abstracts (nearly twice the number in the second print edition) reflecting the substantial increase in scholarship in this field. The bibliographic entries and abstracts are fully searchable by keyword or by using the controlled subject headings available on the drop-down menu.

Yours truly's work on Catholic social thought as applied to corpoirate governance issues appears, along with much else. A truly valuable resource. (HT: MOJ)

Glendon, Garvey, and others blast Obama contraception "compromise"

I've had the privilege of meeting both Harvard Law Professor and former US Ambassador to the Vatican Mary Ann Glendon and Catholic University of America President John Garvey, both of whom are tremendously smart and accomplished lawyers/academics. Along with  Princeton Professor Robert George, Notre Dame Law Prof. Carter Snead, and EPPC Fellow Yuval Levin, they've sent an open letter to President Obama rejecting the so-called compromise on contraception coverage as "unacceptable":

This so-called “accommodation” changes nothing of moral substance and fails to remove the assault on religious liberty and the rights of conscience which gave rise to the controversy.  It is certainly no compromise.  ...

It is no answer to respond that the religious employers are not “paying” for this aspect of the insurance coverage.  For one thing, it is unrealistic to suggest that insurance companies will not pass the costs of these additional services on to the purchasers.  More importantly, abortion-drugs, sterilizations, and contraceptives are a necessary feature of the policy purchased by the religious institution or believing individual.  They will only be made available to those who are insured under such policy, by virtue of the terms of the policy.

It is morally obtuse for the administration to suggest (as it does) that this is a meaningful accommodation of religious liberty because the insurance company will be the one to inform the employee that she is entitled to the embryo-destroying “five day after pill” pursuant to the insurance contract purchased by the religious employer.  It does not matter who explains the terms of the policy purchased by the religiously affiliated or observant employer.  What matters is what services the policy covers.

Go read the whole thing, please.

Once again, Obama proves to be clueless about economics or religious liberty

The Washington Post (of all places) explains why Obama's so-called contraception coverage compromise is all smoke and mirrors:

... on Friday, the White House rolled out a new rule, where insurance companies, rather than faith-based agencies, will offer birth-control coverage directly to these employees and foot the bill.

 “If a charity, hospital or another organization has an objection to the policy going forward, insurance companies will be required to reach out to directly offer contraceptive care free of charge,” one administration official explained.

The first thing I learned in Econ 101 is that there is no such thing as a free lunch. Somebody is going to have to pay for the birth control pills. Back to WaPo:

By one report’s measure, it costs about $21.40 to add birth control, IUDs and other contraceptives to an insurance plan. Those costs may be offset by a reduction in pregnancies. But unless drug manufacturers decide to start handing out free contraceptives, the money to buy them will have to come from somewhere.

Where will it come from, since neither employers nor employees will be paying for these contraceptives? That leaves the insurers, whose revenues come from the premiums that subscribers pay them. It’s difficult to see how insurance companies would avoid using premiums to cover the costs of contraceptives. 

Indeed. As Tom Maguire explains for the simple minded:

If the insurance company can reasonably predict that a certain number of employees will take up the "free" contraceptive coverage, the quoted premium will be adjusted accordingly.

And so the Church will still end up paying for services it belives are immoral.

Predictably, Planned Parenthood is pleased, but still felt it necessary to fire a shot over Obama's port side:

... we will be vigilant in holding the administration and the institutions accountable for a rigorous, fair and consistent implementation of the policy, which does not compromise the essential principles of access to care. The individual rights and liberties of all women and all employees in accessing basic preventive health care is our fundamental concern.

Curious. I don't recall learning anything about a right to health care when I studied Consitutional law. I do, however, seem to recall something about "Congress shall make no law ... prohibiting the free exercise" of religion. What part of "no law" is former law professor Obama unable to understand?

Obama versus the Bishops

If forced to chose between Barack Obama and the Catholic Bishops, I'd be inclined to invoke Henry Kissinger's quip about the Iran-Iraq war; i.e., it's a pity they can't both lose. I'm one of those Catholics who believes with St. John Chrysostom that the road to hell is paved with the skulls of bishops.

In the kerfuffle over contraception, however, I'm squarely with the Bishops. So a couple of great op-eds in today's WSJ caught my eye. First, Daniel Henninger:

The question raised by the Catholic Church's battle with ObamaCare is whether anyone can remain free of a U.S. government determined to do what it wants to do, at whatever cost.

Older Americans have sought for years to drop out of Medicare and contract for their own health insurance. They cannot without forfeiting their Social Security payments. They effectively are locked in. Nor can the poor escape Medicaid, even as the care it gives them degrades. Farmers, ranchers and loggers struggled for years to protect their livelihoods beneath uncompromising interpretations of federal environmental laws. They, too, had to comply. University athletic programs were ground up by the U.S. Education Department's rote, forced gender balancing of every sport offered. ...

The Catholic Church has stumbled into the central battle of the 2012 presidential campaign: What are the limits to Barack Obama's transformative presidency? The Catholic left has just learned one answer: When Mr. Obama says, "Everyone plays by the same set of rules," it means they conform to his rules. What else could it mean?

Likewise, John Cochrane opines that:

When the administration affirmed last month that church-affiliated employers must buy health insurance that covers birth control, the outcry was instant. ... Critics are missing the larger point. Why should the Department of Health and Human Services (HHS) decree that any of us must pay for "insurance" that covers contraceptives? ...

By focusing on an exemption for church-related institutions, critics effectively admit that it is right for the rest of us to be subjected to this sort of mandate. They accept the horribly misnamed Patient Protection and Affordable Care Act, and they resign themselves to chipping away at its edges. No, we should throw it out, and fix the terrible distortions in the health-insurance and health-care markets.

Sure, churches should be exempt. We should all be exempt.

Both are great reads.

Meanwhile, the Obama administration is talking out of both sides of its mouth:

White House press secretary Jay Carney, defending the decision for the third consecutive day, reiterated on Wednesday that the administration would work to address concerns while maintaining that it would continue to require free contraceptive coverage for all women except those covered by a narrow exemption, such as those working directly for churches.  ...

How do you address the concern while refusing to address the source of the concern?

McArdle on the contraception flap

Megan McArdle's got a great post on the flap over the Obama--Catholic Church fight over whether the latter should have to ensure that its employees have coverage for contraception.

A remarkably narrow definition of religion

The current debate over the Obama administration's decision to require Catholic-affiliated social services to provide health insurance for employees that includes coverage for abortions has prompted both liberals and libertarians to take a remarkably narrow definition of what constitutes religion. Kevin Drum opines for example that:

I'm just a big ol' secular lefty, so I guess it's natural that I'd disagree. And I do. I guess I'm tired of religious groups operating secular enterprises (hospitals, schools), hiring people of multiple faiths, serving the general public, taking taxpayer dollars — and then claiming that deeply held religious beliefs should exempt them from public policy. 

Doug Mataconis likewise opines that:

I think Drum is correct here. Religious liberty is an important principle, one that I take very seriously, but it doesn’t mean what Dionne and the Catholic Bishops seems to think it means. Operating a hospital or a school or an adoption agency is not a religious undertaking in the same way that, well, operating a church is, and there’s simply no merit to the argument regulations regarding how you operate an institution that is essentially secular in nature are somehow a violation of religious liberty. More importantly, operating such institutions while taking government money (i.e., Medicare and Medicaid) means accepting at least some regulation about how that money is used. 

I agree that taking taxpayer money presents a problem. If the church could avoid this sort of intrusive government regulation simply by refusing taxpayer money, I'd prefer that the church do so. But a lot of these secular elites would prefer that the church be kicked out of the public square as a whole. Consider, for example, the recent debate over the so-called ministerial exception. Anti-church secularists have been trying for years to subject Church organizations like Mataconis' hospital, school, or adoption agency to the anti-discrimination laws so that the Church could not use adherence to its teachings as basis for hiring and firing employees. Fortunately, the Supreme Court upheld a broad (albeit incoherent) version of the ministerial exception. 

The basic problem is that to the extent secular elites are willing to begrudgingly tolerate religious liberty at all, they have come to define religion in remarkably narrow terms. Consider the distinction Mataconis draws between "a hospital or a school or an adoption agency" and "a church." I accept Mataconis claim that he values religious liberty, and am happy to exempt him from the secular elites who wish the Church ill, but even so the narrow definition of religion he adopts is precisely the technique by which others have sought to erode the religious liberty of the Catholic Church in particular.

The Catholic Church believes--as an article of faith--that both the Church as an institution and its members as individuals have a religious duty to tend to everyone, not just fellow Catholics. Indeed, the whole point of the Parable of the Good Samaritan is that there is a moral obligation to help those in need without regard to who they are. In response to this teaching, Catholics have run social services like hospitals since the earliest days of the Church's history:

Another characteristic of Christian charity was the obligation and practice of hospitality (Romans 12:13; Hebrews 13:2; 1 Peter 4:9; 3 John). The bishop in particular must be "given to hospitality" (1 Timothy 3:2). The Christian, therefore, in going from place to place, was welcomed in the houses of the brethren; but like hospitality was extended to the pagan visitoras well. Clement of Rome praises the Corinthians for their hospitality (Ep. ad. Cor., c. i) and Dionysius of Corinth for the same reason gives credit to the Romans (Eusebius, Church History IV.23). The bishop's house above all others was open to the traveller who not only found food and shelter there but was provided in case of need with the means to continue his journey. In some cases the bishop was also a physician so that medical attention was provided for those of his guests who needed it (Harnack, "Medicinisches aus d. ältestenKirchengesch." in "Texte u. Untersuchungen" VIII, Leipzig, 1892). The sick were also cared for in the valetudinaria of the wealthier Christians who in the spirit of charity extended hospitality to those who could not be accommodated in the bishop's house. There was thus from the earliest times a well organized system of providing for the various forms of suffering; but it was necessarily limited and dependent on private endeavour so long as the Christians were under the ban of a hostile State. Until persecution ceased, an institution of a public character such as our modern hospital was out of the question. it is certain that after the conversion of Constantine, the Christians profited by their larger liberty to provide for the sick by means of hospitals. But various motives and causes have been assigned to explain the development from private care of the sick to the institutional work of the hospital (Uhlhorn, I, 317 sq.). It was not, at any rate, due to a slackening of charity as has been asserted (Moreau-Christophe, "Du problème de la misère", II, 236; III, 527), but rather to the rapid increase in the number of Christians and to the spread of poverty under new economic conditions. To meet these demands, a different kind of organization was required, and this, in conformity with the prevalent tendency to give all work for the common weal an institutional character, led to the organization and founding of hospitals.

To force Catholics to differentiate between "a hospital or a school or an adoption agency" and "a church" is thus to deny us the right to practice our religion as we see fit. 

As Ross Douthat put it:

... it’s precisely the more universal services provided by Catholicism’s institutions that have left them vulnerable to the Obama White House’s current regulatory attack. If they were explicitly sectarian in their community service, they would be eligible for the narrow conscience exemption that the Department of Health and Human Services has afforded to religious bodies. But because they serve non-Catholics as well as Catholics, the government has decided (as Yuval Levin puts it in a fine post today) that they can be “fined for holding views regarding contraception, sterilization, and abortion that are different from the Obama administration’s views.”

In other words, contemporary liberalism offers religious groups a choice. They can try to serve the widest possible population, in which case a liberal administration will set rules that force them to violate their conscience. Or they can serve a narrower one, in which case liberal journalists will sneer at them (and their most generous benefactors) for only caring about their co-religionists.

Hence, as Justice O'Connor put it in her concurrence in McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005):

There is no list of approved and disapproved beliefs appended to the First Amendment-and the Amendment's broad terms (“free exercise,” “establishment,” “religion”) do not admit of such a cramped reading.

The Amendment's broad terms likewise should not admit the cramped and narrow reading of religious belief reflected in the claim that we must differentiate between "a hospital or a school or an adoption agency" and "a church." 

Religious liberty does not equal democratic religions

The Washington Monthly's Political Animal blog has gone from good (Kevin Drum) to bad (Steven Benen) to much worse (Ed Kilgore). Case in point is Kilgore's argument that:

... it should be clear that given the vast opposition of U.S. Catholics to the Church’s teachings on contraception and (to a lesser extent) abortion, the Bishops do not exactly come to the table with clean hands when it comes to its demands for “religious liberty.” 

Huh? Religious liberty means freedom of religion from government. It has never required democratic religions. As such, hierarchical churches (like us Catholics) have the same rights to non-interference by the government as do whatever congregational churches Kilgore has in mind (if any).

"Hauerwasian Christian Legal Theory" by Skeel

A typically insightful essay by David Skeel:

This Essay, which was written for a Law and Contemporary Problems symposium on Stanley Hauerwas, tries to develop an account of public engagement in Hauerwas’ theology. The Essay distinguishes between two kinds of public engagement, “prophetic” and “participatory.” Christian engagement is prophetic when it criticizes or condemns the state, often by urging the state to honor or alter its true principles. In participatory engagement, by contrast, the church intervenes more directly in the political process, as when it works with lawmakers or mobilizes grass roots action. Prophetic engagement is often one-off; participatory engagement is more sustained. Because they worry intensely about the integrity of the church, Hauerwasians are more comfortable with prophetic engagement than the participatory alternative, a tendency the Essay calls the “prophetic temptation.” Hauerwasians also struggle to explain what can or should participatory engagement look like.

After first comparing Hauerwas’s understanding of Jesus’s Sermon on the Mount with that of his two twentieth century predecessors, Walter Rauschenbusch and Reinhold Neibuhr, the Essay turns to Hauerwasian public engagement and the prophetic temptation. The Essay then considers the implications of Hauerwas’s theology for three very different social issues, the Civil Rights Movement, abortion, and debt and bankruptcy.

Huge win for religious liberty

The NY Times is reporting that:

In what may be its most significant religious liberty decision in two decades, the Supreme Court on Wednesday for the first time recognized a “ministerial exception” to employment discrimination laws, saying that churches and other religious groups must be free to choose and dismiss their leaders without government interference.

I exaggerate only slightly to say that it was getting to the point in the lower courts in which a woman would be able to sue the Catholic Church for employment discrimination for barring her from the priesthood. Indeed, at oral argument, the Obama administration's assistant solicitor general told the court that it "should make no distinction between secular or religious employers," which would head in that extreme direction. So this is a big win for religious liberty.