I'll just credit Professor Newsom with noting that the EAA can have disparate impacts, and I'll retire from the discussion.
_____ From: Newsom Michael [mailto:[EMAIL PROTECTED] Sent: Wed 11/9/2005 11:01 AM To: Law & Religion issues for Law Academics Subject: RE: FYI: An Interesting "See You at the Pole" Case And you still overreach with a straw man argument. I have taken no position on the desirability of amending EAA. Why can't you understand that? _____ From: Berg, Thomas C. [mailto:[EMAIL PROTECTED] Sent: Tuesday, November 08, 2005 5:28 PM To: 'Law & Religion issues for Law Academics' Subject: RE: FYI: An Interesting "See You at the Pole" Case I'm not withdrawing anything; I said in the article that your point about the disparate impact was well taken, but that it would be better to expand the EAA than to use any disparate impact as a basis for repealing it. If you agree with that, great. I must say, though, that your strong and repeatedly expressed opposition to Protestant student clubs - which would still exist even if Catholic students could celebrate mass - led me to think (quite reasonably I believe) that you'd probably still support repeal of the Act even then. ----------------------- Thomas C. Berg Professor of Law Co-Director, Terrence J. Murphy Institute for Catholic Thought, Law, and Public Policy University of St. Thomas School of Law MSL 400 -- 1000 La Salle Avenue Minneapolis, MN 55403-2015 Phone: (651) 962-4918 Fax: (651) 962-4996 E-mail: [EMAIL PROTECTED] <mailto:[EMAIL PROTECTED]> ------------------------------------------------------- -----Original Message----- From: Newsom Michael [mailto:[EMAIL PROTECTED] Sent: Tuesday, November 08, 2005 4:09 PM To: Law & Religion issues for Law Academics Subject: RE: FYI: An Interesting "See You at the Pole" Case It is far too early to determine whether the "communion" issue will gain traction in the Church. There are, as near as I can tell, far more bishops opposed to denying communion than there are those willing to do so. Burke and Chaput don't have a lot of company on this matter, at least not yet, and not publicly. And, in any event, I am not sure that the point of denying communion is to drive liberals out of the Church, although, for some, it might be. Discipline and expulsion are not the same thing. "Traditionalist" Catholics may or may not run the Church. 47% of American Catholics voting in the 2004 election voted for Kerry. Again, time will tell whether the Church decides to become an arm of the Republican Party. My hunch is that it will not, but I could be wrong and the Republicans are trying very hard to make it happen. It is always possible that "traditionalists" will overplay their hand. Interest convergence is just that, a temporary state of affairs. The large claim that agreement on social issues trumps disagreement on theological issues remains to be proven. And it certainly remains to be proven that the Church will proclaim that such an agreement is an indispensable element of being Catholic. On the first point, I will simply refer to the footnote in your article in which you grant that my concerns about EAA and the Church might have some merit. Maybe you are withdrawing that footnote. Second, why would you conclude that I would not support an EAA which allowed priests to celebrate Mass at the behest of a Catholic student group? That argument is clearly out of bounds. My objection has always been to EAA as it exists. Why the resort to a straw man? _____ From: Berg, Thomas C. [mailto:[EMAIL PROTECTED] Sent: Tuesday, November 08, 2005 4:44 PM To: 'Law & Religion issues for Law Academics' Subject: RE: FYI: An Interesting "See You at the Pole" Case Just to be clear: I don't think that this disparate impact (Protestant student-led worship services protected by the Act, Catholic masses not protected) warrants Catholics opposing the EAA. For several reasons: (1) There are lots of other things that Catholic student groups might do that the Act would protect. (2) The Act doesn't bar student clubs that fall outside of its parameters; it simply doesn't give them statutory protection, and they fall back (as Doug noted) on the First Amendment, which might well protect the mass if other student groups are allowed to have non-school adults participate in any of their events. (3) It would be better for free speech and civil liberties if the Act were extended to encompass the Catholic mass than if it were repealed to leave every student club equally without statutory protection against content-based discrimination. On the more general issue about traditionalist Catholics making common cause with conservative Protestants: I suppose, to answer Professor Newsom, that one piece of evidence that "the Catholic Church might be willing to lose members in order to save unborn children" is the move by several bishops (with some encouragement from the new Pope) to deny communion to vigorously pro-choice politicians. Calls for such denials are often accompanied by arguments that the Church has become too lax on fundamental moral teachings, and on disciplining members who stand against them, and that it needs to become more "sectarian" and disciplined on this even if that results in a smaller Church. I wouldn't claim that the move to deny communion reflects a view that "objection to abortion is 'deeper' than the liturgy"; but as read the arguments, it does reflect a view that whether one is eligible to receive the sacrament, and thus be in communion with the Church, cannot be entirely separated from whether one is in communion with the Church's position on fundamental moral issues. Of course, only a few bishops to date have indicated they will refuse communion in this way - which might show that the Church as a whole does not treat abortion as so non-negotiable. However, my claim was never that *all* Catholics, or the Church as a whole, were aligning with evangelicals based on issues like abortion. My claim was only that *traditionalist* Catholics are doing so in large numbers (helping to produce a realignment of religious-political conflict from Catholic/Protestant to traditionalist/progressive). That claim, I believe, gains further support from the recent communion wars, because it is traditionalist Catholics who have fueled the drive for bishops to take steps against pro-choice politicians. The communion denials, which I imagine will only grow as an issue, show that many traditionalist Catholics are quite willing to bring abortion, a cultural-moral-political issue, to bear on the liturgy. Tom Berg, University of St. Thomas (Minnesota) -----Original Message----- From: Newsom Michael [mailto:[EMAIL PROTECTED] Sent: Tuesday, November 08, 2005 2:43 PM To: Law & Religion issues for Law Academics Subject: RE: FYI: An Interesting "See You at the Pole" Case Precisely the point. And I want to credit Tom Berg for making much the same point in a recent article. So I criticized the Church for supporting EAA without thinking through the disadvantages that would result. Some think that that criticism reflects a view of Catholicism that is essentially mean-spirited, that if Catholics didn't support EAA then it meant that they were anti- this or anti- that. That take on the matter is, of course, utterly without merit. Why would any institution consciously decide to follow a course of action that would weaken the organization? The only "answer" (is this a "scare quote?") is that somehow weakening the institution is less important than advancing some other supposed goal, all the while citing no authority to support such a contention. _____ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Monday, November 07, 2005 11:10 PM To: religionlaw@lists.ucla.edu Subject: Re: FYI: An Interesting "See You at the Pole" Case In a message dated 11/7/2005 3:11:57 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: Catholics can't do that. If there is a weakness to the EAA, this is probably where it lies. The Act disadvantages students forming religious clubs in ways that are different than other types of organizations. It does this by subjecting religious groups to the special restriction that they may only have custodial monitors (faculty or staff whose principal interest is in insuring the safety and security of propertty and persons) while other clubs can have sponsors (faculty and staff whose principal interest may well be and often is in the subject area of the club or in the service activities of the organization sponsored)). Of course, there may be religious observances that can be organized and led by laity that are appropriate for Catholic young people. For example, every Saturday here in the District of Columbia, a group of Catholic college students varying in number from 20 to 100 spend the morning praying the rosary on the public sidewalk in the vicinity of an abortion business. Certainly Catholic students could organize group prayer activities including the Rosary; and they could conduct studies of Catholic teaching and thought. In this sense, Catholic students probably are not so much disadvantaged as might otherwise seem. True, at least from my experience and perspective, that a student Baptist group could approximate a worship service that would not be hindered by the fact that none of the students was ordained as a minister of the Gospel, while a students only service for Catholic students would not take the form of a Mass. And you probably have in mind celebration of the Mass, and the EAA, by denying students access to outside participants on a regular, on-going basis, would seem to have a disparate impact on religious observants whose faith family reposes special spiritual authority or giftedness in a priest or minister. Jim Henderson Senior Counsel ACLJ
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