McAleese, “Quo Vadis? Collegiality in the Code of Canon Law”

This January, Columba Press will publish Quo Vadis? Collegiality in the Code of Canon Law by Mary McAleese (former President of Ireland). The publisher’s description follows.

 In her first book since leaving Aras An Uachtarain, Mary McAleese has produced a masterful and highly accessible study of how Vatican II’s teachings on collegiality, or how power and responsibility were to be shared between the Pope and the college of bishops within the Catholic Church, have either been sidetracked or not yet come to fruition, depending on how you interpret the events which followed the Council up to the present day.

Vatican II embraced a fresh new vision of the Church as the People of God, turning away from the rigidly hierarchic structure of the past. It left a clear picture of the Church as communio or community but no clear road-map of how to get there. While it sowed seeds of confusion it also infused into the Church an expectation of broader ecclesial participation and co-responsibility which has impacted in many different ways. Read more

Botham, “Almighty God Created the Races: Christianity, Interracial Marriage, and American Law”

This February, the University of North Carolina Press will publish a paperback edition of Almighty God Created the Races: Christianity, Interracial Marriage, and American Law by Fay Botham (visiting assistant professor at Hobart and William and Smith Colleges). The publisher’s description follows.

 In this fascinating cultural history of interracial marriage and its legal regulation in the United States, Fay Botham argues that religion–specifically, Protestant and Catholic beliefs about marriage and race–had a significant effect on legal decisions concerning miscegenation and marriage in the century following the Civil War. She contends that the white southern Protestant notion that God “dispersed” the races and the American Catholic emphasis on human unity and common origins point to ways that religion influenced the course of litigation and illuminate the religious bases for Christian racist and antiracist movements.

DeGirolami, “The Punishment Jurist”

I have a new paper, which is a chapter contribution for what will be a conceptual history of several foundational writings in criminal law and punishment.  It’s called, The Punishment Jurist, and deals with the thought of Sir James Fitzjames Stephen, a judge of the Victorian period.  The essay is more about criminal punishment than about law and religion, but there is a good bit about the latter as well.

In his major work of scholarship — the History of the Criminal Law of England (1883) — Stephen discusses (at the end of Volume II) the issue of “offenses against religion.”  And one of the matters he takes up is the crime of witchcraft.  I discuss his views of witchcraft and other offenses against religion to rebut the oft-heard and erroneous claim that Stephen believed the realms of morality and criminality to be co-extensive (notwithstanding his belief in the important connections between the two, and in turn between morality and religion), and the claim that Stephen is a punishment consequentialist full stop.

Comments are welcome.

The Catholic Vote and the Contraception Mandate

Here’s an interesting piece of data from Tuesday’s exit polls: President Obama won the Catholic vote. The margin was narrow — 50%-48%, which more or less mirrors the President’s popular-vote victory — but, still, he won. Now, you might say, this isn’t surprising. Catholics have traditionally leaned Democratic, and President Obama’s campaign stressed social justice concerns that resonate with Catholic teaching. One should remember, though, that the Obama Administration imposed the contraception mandate, and that Catholic bishops made the mandate a salient issue. Requiring Catholic institutions to provide contraceptives and abortifacients to employees, the bishops said, seriously threatens Catholics’ religious freedom. Apparently, the majority of Catholic voters disagreed. Or thought that the threat to religious freedom, if it existed, was not as important as other issues, like increasing taxes on wealthy Americans and leaving entitlement programs untouched. Perhaps Latino Catholics voted “ethnicity” rather than “religion.” Who knows? The point is, the majority of Catholic voters apparently did not accept the bishops’ understanding of the importance of the issue.

Leaving aside whether voters who disregard their bishops’ views on the contraception mandate are erring as Catholics – a question on which I’m not qualified to state an opinion — I wonder what implications this vote has for the future of the mandate. Legally, the lawsuits under RFRA will go forward, and I think they have a fair shot at success. But the atmosphere may have changed. It won’t show up expressly in judicial opinions, of course, but I wonder whether judges who support the mandate won’t feel more emboldened to find that the mandate doesn’t “substantially burden” Catholic institutions.  And I wonder whether the Obama Administration won’t feel more comfortable taking a hard line on whatever “accommodation” they are preparing for the final regulations, due before August 2013. The courts may or may not follow the election returns, but politicians surely do.

The Politics and the Law of Accommodation

Now that the President will be with us for another 4 years, I got to thinking about the politics of the promised accommodation relating to the HHS Mandate.  Recall that HHS has indicated that some form of accommodation or modification to the existing regulation for objecting Catholic institutions would be forthcoming after the election.  Some courts have relied on the prospect of that accommodation to dismiss law suits, without prejudice, as being unripe.

Of course no one yet knows what the nature of the accommodation will be.  So all of this is pure speculation, and may well turn out to be incorrect.  But I expect the accommodation to be narrow.  The reasons are simple from a political point of view.  First, in his second term, the President does not need to placate the Church or Catholics who do not agree with him about this issue for political reasons.  The House may stand in his way as to certain policy objectives, but this is not one of them.  He will not run for President again.  Second, the President can quite rightly point to the fact that he won the Catholic vote in this election.  A majority of Catholics that voted did not feel that the issues of religious liberty raised by the Mandate were important enough to vote against the President (and that’s putting it generously — some or many may not have cared at all about these issues; some may not even have known about them).  And the President can and probably will use that triumph as a political signal that he can proceed more or less as he likes with his policy.  Catholics may or may not care about the Mandate, but a majority of them don’t care that much — for those that voted, it is not a central concern for them.

This raises some interesting questions about the relationship of these political indicators to the Religious Freedom Restoration Act legal test: laws which substantially burden religious belief or practice and which are not supported by a compelling interest whose means of achievement is the least restrictive are illegal.  One key feature of the test is that courts are not to inquire into the centrality or importance of the belief or practice within the overall religious system.

One of the reasons for RFRA was precisely to short-circuit the sorts of new political arguments that the Administration might make on behalf of the Mandate.  For example, suppose the Administration adds to its arsenal of legal arguments in favor of the Mandate something like the following: ‘Most Catholics don’t care much at all about this issue, for if they did, they would have voted against the President.  But they voted for the President.  The burden on them therefore must not be substantial at all.’  It seems to me that this is an argument from centrality.  And it strikes me as problematic.

In the first place, it remains difficult to assess precisely how important or central the burden is for the Catholics that voted for the President notwithstanding the Mandate.  They may have voted for him with reservations of various kinds, and we would need to know how to measure the weight of those reservations to determine whether that weight rises to the level of substantiality.  But of course we cannot do that.  In the second place, RFRA’s very injunction not to consider centrality speaks to an incongruity between the political and legal realms when it comes to accommodations on grounds of religious conscience.  Part of the point of RFRA had to do with a concern about the majoritarianism suggested by Employment Division v. Smith — and specifically about the question of how to gauge whether an accommodation was warranted.  This explains Congress’s concerns about inquiries into the centrality of a belief.  And this is why arguments from current political realities are an uncomfortable fit when it comes to the law of accommodation.

Be that as it may, as I have indicated before, I am perplexed by the substantial burden test.  There are only a few ways I can think of that are available for courts to assess the gravity of a burden.  And evaluating the centrality or importance of a belief seems like a natural — indeed, perhaps an inevitable — criterion.