Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Friday, January 19, 2018

A misleading report on Catholic hospitals

The "Public Conscience / Private Rights Project" at Columbia Law School is, in my opinion, an activist/lobbying enterprise, funded largely by ideologically motivated sources, that should not be housed in an academic institution of Columbia's stature.  But, put that aside.  The Project is touting a new "report", "Bearing Faith:  The Limits of Catholic Health Care for Women of Color."  I heard about the "report" in an email with the Onion-esque headline, "New Report Reveals Pregnant Women of Color More Likely to Receive Religiously Restricted Reproductive Health Care in Many US States." 

Good grief.  For decades, orders of Catholic women religious sacrificed heroically and made it their vocations to build institutions and provide health care in low-income, immigrant, and underserved communities.  And now there are "reports" suggesting that the animating, inspiring faith of these women -- which has implications, no surprise, for the institutions' willingness to perform abortions on those they serve -- is some kind of racist, oppressive miasma.  What a world. 

January 19, 2018 in Garnett, Rick | Permalink

It's out! "Essays in Honor of Robert J. Araujo, Jr."

Congrats, and thank you, to Fr. Hendrianto!  Fr. Araujo . . . a great priest, lawyer, scholar, and friend.  R.I.P.


January 19, 2018 in Garnett, Rick | Permalink

The Mortara Case, Pio Nono, Statism, Parents, etc.

In part because of the upcoming Steven Spielberg movie, and in part because of Fr. Romanus Cessario's review in First Things of Edgardo Mortara's memoir, and in part because of the renewed interest on the part of a number of accomplished scholars and thinkers (Deneen, Legutko, Vermeule, etc.) in the nature, foundations, and future of liberalism, there has been a boomlet of 21st century digital debate over the Edgardo Mortara case.  The case was hugely important in 19th century America in shaping perceptions not only of the Church and the papacy but also of Catholic schools and, it's fair to say, by shaping American anti-Catholicism it also shaped American church-state law.  Today, it also tees up questions about political theology and theory, the nature of the sacraments, the anti-Semitism of many Catholics, the natural rights of parents, Italian nationalism, etc.

On the one hand, it seems pretty strange -- and, perhaps, more than a little regrettable (Matthew Franck, in this piece, calls it a "needless quarrel")-- that this case (which, in my view, has to be judged, as Rusty Reno put it at First Things, as a "stain on the Catholic Church") is the topic of the moment.   Yes, the evidence as I understand it is that Mortara came to love Pope Pius IX and his own vocation to the priesthood and, yes, as Fr. Cessario wrote, "baptism configures a person to Christ, leaving something permanent in the one baptized."  Still - it was both immoral and illegitimate for the relevant authorities to take him away from his parents.  It was, among other things, as Robert Miller explained, an abuse of state power.  (I've seen some comments on Twitter criticizing Miller for framing his critique of the Mortara case in terms of "statism."  The complaint seems to be that Miller is reducing or conflating the wrong of unjustly taking Mortara from his parents to/with a libertarian critique of government action generally.  I don't think that's what Miller was doing at all.  "Statism" is a thing, after all -- it's not "constitutional governments promoting the common good" -- and it's bad.)

I'm inclined to agree with Franck that "Pius was wrong in the Mortara case—grievously so, as Miller’s main argument demonstrated—for venerable Catholic reasons he should have understood even in his own day, reasons having no connection with the modern liberal project that the integralists (rightly or wrongly) attribute to the anti-Christian secular enlightenment."  That is, I think it's important to note that the reasons Pope Pius was wrong are not simply that he didn't play by Rawls's (or any other left-liberal) rules; it's not (I hope!) the case, as Pat Smith charges, that the basis for criticisms of Mortara's removal is merely "comfortable, bourgeois liberalism" or a timid and naive attachment to Murray, Maritain, Dignitatis humanae, etc. 

For some more reactions, here is Rod Dreher and here is Nathaniel Peters.  And, of course, I invite other MOJ-ers to weigh in!


January 19, 2018 in Garnett, Rick | Permalink

Thursday, January 18, 2018

Liberalism and Christianity at Harvard Law

The Thomistic Institute at Harvard Law School is co-hosting a conference on March 2-3rd dedicated to discussing the (irreconcilable?) tensions inherent in the interplay of liberalism and Christianity.

Speakers include:  Prof. Emerit. Rémi Brague (the Sorbonne), Fr. Dominic Legge, OP (the Pontifical Faculty of the Immaculate Conception), Prof. Helen Alvaré (Antonin Scalia Law School, George Mason University), Prof. Candace Vogler (University of Chicago), Fr. Thomas Joseph White (Dominican House).  Panel participants: RR Reno, Adrian Vermeule, and Margarita Mooney.

Pre-registration is required, and I hear it is filling up. 


January 18, 2018 in Bachiochi, Erika | Permalink

Political Theory of the Founders

In light of Rick's posts on liberalism - and the various interesting articles at First Things, especially - I wanted to mention a book published out of Cambridge University Press this year that may be of interest. The Political Theory of The American Founders describes, in a kind of archaeological dig, the evidence of the consensus theory of the founders as one bound by natural rights.

Probably the most unique and important contribution of the book is the middle section on the Moral Conditions of Freedom. Here, the author, Hillsdale Professor Thomas West, culls research from state constitutions at the time of the founding.  West claims that most scholarship on the founding tends to focus on the philosophies of this or that particular founder, or delve into the thinkers who informed them, notably John Locke. He sought instead to find public material that would show consensus among thinkers. 

If you only have an hour, watch this video with West and commentary by Patrick Deneen and UChicago professor Joshua Mitchell. West's short presentation doesn't do justice to the book, in my view, but Deneen is Deneen at his best. Mitchell offers some really thoughtful commentary on whether understanding the founding as the founders understood it actually does us much good. We are, after all, living worlds apart from their worldview, consensus or not, and so we probably couldn't recreate their theory today even if we better understood it. 

It is my view - always subject to change - that shoring up our moral ecology is the most important work we have today, whether to provide the conditions for republican forms of government, or more primarily, because that is the most important work human beings must undertake, whatever form of government we have. 



January 18, 2018 in Bachiochi, Erika | Permalink

A reasonable and welcome decision to enforce conscience-protection rules

Read more here. It's strange that critics see something strange or ominous in a decision to have the Civil Rights Division allocate some resources to enforcing some important civil-rights laws -- which is, of course, what healthcare conscience protections are.  Division should allocate resources to make those protections meaningful.  The critics of this announcement are wrong to frame these protections in terms of "discrimination" or "disapproval."  Instead, they represent a sensible way of accommodating and respecting diversity and pluralism in the public square.  Once again, we see the widespread "confusion about discrimination" - for more on that, go here!

Contrary to the as-per-usual misleading complaint by Planned Parenthood (quoted in the linked-to story), the decision does not "impose a broad religious refusal policy" but simply remedies the previous administration's failure to follow longstanding policy.

January 18, 2018 in Garnett, Rick | Permalink

Tuesday, January 16, 2018

Religious Freedom Day, and the Virginia Statute

Today is Religious Freedom Day, and President Trump issued this proclamation:

      Faith is embedded in the history, spirit, and soul of our Nation.  On Religious Freedom Day, we celebrate the many faiths that make up our country, and we commemorate the 232nd anniversary of the passing of a State law that has shaped and secured our cherished legacy of religious liberty.

      Our forefathers, seeking refuge from religious persecution, believed in the eternal truth that freedom is not a gift from the government, but a sacred right from Almighty God.  On the coattails of the American Revolution, on January 16, 1786, the Virginia General Assembly passed the Virginia Statute of Religious Freedom.  This seminal bill, penned by Thomas Jefferson, states that, “all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.”  Five years later, these principles served as the inspiration for the First Amendment, which affirms our right to choose and exercise faith without government coercion or reprisal.

Is the proclamation accurate? The relationship between the Virginia statute and the First Amendment is complicated. To say that the statute "served as the inspiration" for the Amendment is so overstated that it's wrong. (It tracks the Supreme Court's overbroad assertions in Everson v. Board of Education.) As Steve Smith, Kurt Lash, and others have emphasized, the Amendment also had support from states that did not go as far in recognizing religious freedom or church-state separation--even from New England states that maintained systems compelling taxpayers to support clergy, a practice the Virginia statute forbade. (It said that "no man shall be compelled to frequent or support any religious worship, place, or ministry.") The First Amendment reflected, significantly although not entirely, a "federalism" position confirming that the matter of religion would be outside federal power, left to the states: Virginia and New England could each follow their own policy.

But "not entirely." It is likewise wrong to say the Virginia statute--more precisely, as Trump's proclamation says, its "principles"--had nothing to do with the First Amendment. Talking specifically about "inspiration," there is the connection  through Madison, who led the drives to adopt both the Virginia statute and the First Amendment. The dissenting evangelical groups who pressed (and pressed Madison in particular) for the Amendment advocated for religious freedom as a substantive right, not as a means of protecting Virginia's or other states' discretion to decide all religious-freedom matters however they wished.

Among the principles embodied in the Virginia statute, there was wider consensus across the states on what would typically be called principles of free exercise--i.e. the right to profess and exercise a faith without coercion--than principles solely of non-establishment--e.g. no money in any form to support religious institutions or activities. Even the New England states, with their funding for clergy, simultaneously had provisions guaranteeing free exercise to all faiths. Trump's proclamation quotes a "free exercise" portion of the Virginia statute.

And the Virginia statute had greater influence down the road, as all states eliminated their taxes for clergy by 1833. In that sense, the proclamation is correct that the statute "has shaped and secured our cherished legacy of religious liberty."

(Finally, just what our "legacy of religious liberty" means in all contexts of tax-supported funding is another question. The consensus rejection of  affirmative funding uniquely for clergy does not decide the question whether religious providers of secular services--education, social services, healthcare--can, or even must, be included in general programs of funding that support those services. Principles of religious liberty might disapprove such inclusion--but they might also call for it. That's the issue the Court is working through today.)

January 16, 2018 in Berg, Thomas, Current Affairs | Permalink

Guttmacher Institute study: No evidence of change in levels of contraceptive use after ACA

A recent study by the Guttmacher Institute has found no evidence of change in women's contraceptive use as a result of the Affordable Care Act. The proportion of women with insurance coverage for contraceptives increased, but not the use or mixture of contraceptive methods. 

This is unsurprising for anyone familiar with the weaknesses of the evidence for the government's repeated assertions in litigation that the contraceptives mandate actually advanced a compelling interest in protecting women's health.

After all, the mandate itself was the product of an Institute of Medicine group that deliberately chose not to scrutinize the relationship between insurance coverage and contraceptive use (as the opinion of the dissenting doctor explained). (Here's a blog post from almost five years ago in which I support this point in more detail, with links to the primary documents.) The government agencies nevertheless adopted the IOM's recommendation without any independent consideration of this relationship. And if the recent study is accurate, it turns out the government's litigators have been wrong thus far to insist that the mandate actually advances a compelling government interest in women's health.

January 16, 2018 | Permalink

Monday, January 15, 2018

Teleforum on the "Parsonage Allowance"

I enjoyed speaking on this recent Federalist Society Teleforum, "Is the 'Parsonage Allowance' Allowed?" We discussed the tax-code provision permitting ministers to exclude from their gross income a housing allowance provided by their employer, up to the fair rental value of the home. Last October, Judge Crabb (W.D. Wis.) invalidated the provision as a violation of the Establishment Clause. If that ruling stands on appeal, the cost to religious organizations around the nation--the cost of making up for the new tax liability by paying additional salary--would likely exceed $1 billion yearly. That estimate, along with very useful insight on the provision and how organizations might respond to its invalidation, was provided by my teleforum co-speakers, John van Drunen and Michael Martin of the Evangelical Council on Financial Accountability (ECFA--an organization that does great work encouraging sound financial practices by religious nonprofits).

Here's the concluding bit from my own remarks (Download Housing Allowance - FedSoc Teleforum 2018-01-12 (delivered), which argued that the housing-allowance exclusion is quite defensible as constitutional but faces risks on appeal:

Ultimately, the result in this matter depends on the court’s attitude toward provisions that specifically accommodate religion. The exclusion will be upheld if the court takes a deferential approach and allows the government leeway as long as it’s reasonably promoting valid church-state concerns like denominational equality and nonentanglement in religious questions, and is not directly imposing a significant burden on anyone else. I believe that is the correct approach—the most consistent with the text, tradition, and precedents—especially with respect to treatment of ministers. But there are certainly judges who view it as presumptively unfair to exempt religion when arguably comparable nonreligious activities are not exempt, and they are likely to view the justifications for doing so here as insufficient.

Our religious liberty clinic at St. Thomas defended the provision at length in an amicus brief in a 2014 appeal, where the Seventh Circuit dismissed the  challenge to the provision for lack of standing.

January 15, 2018 in Berg, Thomas, Current Affairs | Permalink

Pecknold on Augustine, liberalism, "compromise", etc.

Following up on my last post about Thomas Joseph White's piece, here's a short op-ed from Prof. Chad Pecknold, on what St. Augustine has to say about Catholic strategy in a "liberal era."  A bit:

For St. Augustine, the City of God on pilgrimage in this world is the only common good united to the highest good, and the Catholic Church gives us the “true attachment” (vera religio) to it. So it is only in communion with the Catholic Church that individuals, communities, peoples, cities, nations, can be properly “attached.” However, Augustine’s integralism also provides a realistic measure for the Catholic to judge regimes as more or less ideal, on a scale. In Augustine’s “alternative” definition of a republic, he argues that Catholics can and will need to use the relative peace of cities whose orders will be judged better or worse according to their “common objects of love.” That is, in non-ideal regimes, Augustine encourages the integralist to help move his neighbours from low to high, from loving vice to loving virtue, from self-centred order to God-centered order. . . .

I'm (still) sympathetic to the view that American-style constitutional democracy - correctly understood and practiced -- is ("relative[ly]" speaking) a more-ideal non-ideal regime.  But, of course . . . I could be wrong! 

January 15, 2018 in Garnett, Rick | Permalink

"The Metaphysics of Democracy"

Like a lot of people in the social-media-sphere these days, I'm reading and thinking about "liberalism", democracy, Catholicism, political theology, statism, integralism, pluralism, . . . papal kidnappings, etc.  I hope other MOJ-ers will weigh in on some of the various posts and essays that have been attracting a lot of attention.

This particular piece, "The Metaphysics of Democracy," by Thomas Joseph White, O.P., in the February issue of First Things, was of particular interest to me this weekend.  Here's a bit:

Liberalism began as a political project that sought to curtail the role of religion in public life. Religious impulses haven’t proven easy to expel, however, even in secular societies. Contemporary secular liberalism aspires to be a universal project that supplants traditional religion and relegates it to the private sphere. Paradoxically, this process frustrates the spiritual desires of many modern secular people, who are unsatisfied with thin consumerism and wish to participate in something greater than themselves. Their mounting rejection of the liberal project has precipitated a crisis, one felt most acutely in the political realm. It has taken the form of a resurgent nationalism, an inchoate response to the suppression of faith that is inadequate and perhaps dangerous. We need to address the weakness of liberal modernity differently, which means metaphysically. No doubt, an appeal to metaphysics strikes many as strangely abstract and inconsequential. Politics is the realm of action, and people want to see church leaders, politicians, lawyers, and columnists fighting for religious causes. One can sympathize with this instinct, but it ignores the deeper problem. The dispute over metaphysics was the concrete issue from the beginning. It always has been. . . .

I have tended to the view -- and, certainly, I might well have been mistaken -- that "liberalism" can (and should) be regarded and engaged as something (relatively) thin and procedural -- as involving "articles of peace, not of faith."  Many smart people -- Legutko, Deneen, Vermeule, etc. -- are calling this view into question.  We'll see . . . .

January 15, 2018 in Garnett, Rick | Permalink

Friday, January 12, 2018

Perry Dane on "Establishment and Encounter"

I always learn from Prof. Perry Dane's work.  Here is a recent paper his, posted at SSRN:

One of the great puzzles in the law of “religion and law,” considered normatively, is the profound and dramatic diversity, even among Western nations, of the basic norms governing religious establishment and disestablishment and the institutional, financial, and expressive relationships between religion and state. One challenge, then, is to articulate a sort of normative minimum that respects that diversity but also provides a language by which we might begin to assess specific religion-state dispensations. The principles of liberal democracy, including religious liberty, are one important pillar in constructing that normative minimum. But this essay argues that we also need to look elsewhere, to a different perspective that is both older and broader than the discourses of democracy and rights. In that view, religion and state are distinct sovereign realms engaged in an existential encounter. The encounter can take various forms. Nevertheless, church and state must, in a deep sense, respect each other’s essential independent dignity. The church should not subsume the state, and the state should not subsume the church. With this master idea in mind, we can at least begin to appraise specific religion-state dispensations by the spatial metaphors at their heart. Thus, both American separationism – with its metaphor of a “wall” between church and state – and English religious establishment – which has been described as taking the form of an “interlocking jigsaw” – fare well, at least in principle. But French laïcité, whose roots go back in part to a different metaphor – “The State is not in the Church, but the Church is in the State” – does not.

Perry's use of the term "encounter" reminds me of my former colleague and mentor Bob Rodes's use of "nexus" and "dialogue" in the church-state context.  I wrote a short paper about Rodes's approach here:

The idea of church-state separation and the image of a wall are at the heart of nearly every citizen's and commentator's thinking about law and religion, and about faith and public life. Unfortunately, the inapt image often causes great confusion about the important idea. What should be regarded as an important feature of religious freedom under constitutionally limited government too often serves simply as a slogan, and is too often employed as a rallying cry, not for the distinctiveness and independence of religious institutions, but for the marginalization and privatization of religious faith. 

How, then, should we understand church-state separation? What is the connection between separation, well understood, and religious freedom? What is the place, or role, of religious faith, believers, and institutions in the political community governed by our Constitution? With respect to these and so many other interesting and important questions, the work of Professor Robert Rodes has been and remains a help, a challenge, and an inspiration. 

This essay is an appreciation, interpretation, and application of Professor Rodes's church-state work. In particular, it contrasts the church-state nexus that he has explored and explained with Jefferson's misleading but influential wall metaphor. After identifying and discussing a few of the more salient features of this nexus, it closes with some thoughts about how the leading themes in Rodes's law-and-religion writing can help us better understand and negotiate one of today's most pressing religious freedom problems.

January 12, 2018 in Garnett, Rick | Permalink

Wednesday, January 10, 2018

An Exchange on Capital Punishment

Over at Public Discourse, here are Profs. Christopher Tollefsen and Michael Pakaluk on "the philosophical case against capital punishment."  For me, for what it's worth, this essay -- now 17 years old -- by Avery Cardinal Dulles has always been helpful on the subject.

January 10, 2018 in Garnett, Rick | Permalink

Tuesday, January 9, 2018

Pope Francis on, e.g., "integral human development" and the right to life

Pope Francis's annual address to diplomats is getting a fair bit of coverage (here, e.g., is America's story) and, in many instances (here is an example), the coverage is framing the talk in terms of its relevance to President Trump.  Here is John Allen's as-per-usual indispensable coverage. 

For my own part, I was struck by the emphasis on "integral human development" and the (both implicit and explicit) recognition that (as many of us have written over the years here at MOJ) at the heart of any Catholic approach to law, policy, and politics is a proposal of "moral anthropology."

For true peace can only come about on the basis of a vision of human beings capable of promoting an integral development respectful of their transcendent dignity. . . .

One enemy of peace is a “reductive vision” of the human person, which opens the way to the spread of injustice, social inequality and corruption. . . .

As Allen noted, the Pope re-expressed his concern that the language and practice of "human rights" can, sometimes, be put to use as a kind of "ideological colonization":

From the beginning, Pope Francis has been a notoriously difficult figure to classify by the usual Western standards of left v. right - seemingly quite progressive on many matters, and yet stubbornly traditional on others. . . .

Francis also warned of what he described as “debatable notions of human rights” which gathered force in the wake of the social upheavals of the 1960s, which, he said, risk becoming a form of “ideological colonization.”

“Debatable notions of human rights have been advanced that are at odds with the culture of many countries,” the pope said. “The latter feel that they are not respected in their social and cultural traditions, and instead neglected with regard to the real needs they have to face.”

“Somewhat paradoxically, there is a risk that, in the very name of human rights, we will see the rise of modern forms of ideological colonization by the stronger and the wealthier, to the detriment of the poorer and the most vulnerable,” Francis said.

January 9, 2018 in Garnett, Rick | Permalink

Saturday, January 6, 2018


I binge-watched the recent HBO / BBC series, "Gunpowder," and enjoyed it.  There are some liberties taken in terms of history but I'll confess to being (pleasantly) surprised that the "Catholic side" of those times comes off as well as it does.  There are some pretty graphic torture scenes (drawing-and-quartering, burning (in Spain), and peine forte e dure -- in a scene borrowed anachronistically from the martyrdom of Margaret Clitherow).  The main characters (Cecil, Vaux, Garnet, Catesby) are well-cast. 

January 6, 2018 in Garnett, Rick | Permalink

Friday, January 5, 2018

4th Circuit Win for Pregnancy Care Center in Compelled-Speech Case

The Fourth Circuit ruled today that the city of Baltimore cannot compel a pregnancy-care center to post signs in its waiting room stating that it does not perform or refer for abortions. The Center is a Christian non-profit operating in space provided rent-free by a Catholic parish. It argued that the ordinance forced it to raise, in the sensitive context of "its own waiting room," the topic--abortion--that is "at odds with its foundational beliefs and with the principles of those who have given their working lives to it." The opinion, by Judge Wilkinson, rejects the city's arguments that all of the Center's speech is commercial speech and professional speech, and thus deserving lesser First Amendment protection, simply because it provides (free) ultrasounds, counseling, and other services. The court then concludes that the ordinance is not narrowly tailored:

Baltimore seeks to combat deceptive advertising and consequent delays in abortion services. In that respect the ordinance is quite overinclusive. It applies to pregnancy centers without regard to whether their advertising is misleading, or indeed whether they advertise at all. [T]he direct application of laws prohibiting misleading advertising might provide a better fit for the problems about which the City is concerned.

      There are, in short, too many problems with the City’s case. The dangers of compelled speech in an area as ideologically sensitive and spiritually fraught as this one require that the government not overplay its hand.

Becket, who has litigated the case very well as always, has a page of resources on it. The St. Thomas Religious Liberty Appellate Clinic, which I supervise, filed an amicus brief supporting the clinic on behalf of the Democrats for Life and the Christian Legal Society. We argued, among other things, that to call the speech here "commercial," when the Center charges no money for its services and the law does not target any advertising itself, 

would expand that category to sweep in not just the Center, but a wide range of organizations and ministries that provide free services to those in need. This effect would follow, first, from the City’s arguments that the Center “proposes a commercial transaction” and has an “economic motivation.” The City argues that the Center fits within those categories because, although it offers services for free, the services are “commercially valuable”—that is, they could be provided for money. But nonprofit or religious soup kitchens, pastoral counseling services, immigrant/refugee ministries, and countless other organizations all offer free services that could be provided for money. By the City’s rationale, all of these organizations could be subjected to disclosure mandates and other intrusive regulation.

The Fourth Circuit distinguished the case from the NIFLA case currently before the Supreme Court: "In [NIFLA], the court applied the professional speech doctrine [reducing the level of speech protection] only to compelled disclosures in clinics licensed by the state. The Ninth Circuit did not reach the question of whether the doctrine applied to disclosures required in unlicensed pregnancy centers like the one at issue here."

January 5, 2018 in Berg, Thomas, Current Affairs | Permalink

New ACLU lawsuit aims to shut down St. Vincent Catholic Charities foster services

Sigh.  The happy warriors at The Becket Fund are on the case, and have more information.   The ACLU's position is, it seems to me, yet another reminder of (what I've called) the widespread "confusion about discrimination."

January 5, 2018 in Garnett, Rick | Permalink

O'Regan's "97 Aphorisms and Apothegms" inspired by Newman

Run (figuratively speaking), don't walk over to the Church Life Journal and check out my colleague (theologian) Cyril O'Regan's "97 Aphorisms and Apothegms Inspired by Reading John Henry Newman."  Great stuff.  A few:

If you are praised continually, then it is necessary for you to ask what are you doing wrong. . . .

An apology for Christianity is not to beg your leave, but to boldly defend what is beautiful, good, and true about what has formed and transformed you. . . .

Let’s call it by its name. The Reformation is not a reformation, it is a revolution. It not only tore down, it tore up. We are looking for the roots since. . . .

A major value of the secular is that it ratifies the separation of church and world, church and the state. A major disvalue of the secular is that it has the tendency to turn differences into antagonisms. . . .

The risk Catholicism runs in the university is that faith will be lost. The prize it seeks is that faith will be made stronger and become mine. . . .

See also, while you're at it, Cyril's "97 Aphorisms Adduced from the Thought of Pope Benedict XVI."

January 5, 2018 in Garnett, Rick | Permalink

O'Regan's "97 Aphorisms and Apothegms" inspired by Newman

Run (figuratively speaking), don't walk over to the Church Life Journal and check out my colleague (theologian) Cyril O'Regan's "97 Aphorisms and Apothegms Inspired by Reading John Henry Newman."  Great stuff.  A few:

If you are praised continually, then it is necessary for you to ask what are you doing wrong. . . .

An apology for Christianity is not to beg your leave, but to boldly defend what is beautiful, good, and true about what has formed and transformed you. . . .

Let’s call it by its name. The Reformation is not a reformation, it is a revolution. It not only tore down, it tore up. We are looking for the roots since. . . .

A major value of the secular is that it ratifies the separation of church and world, church and the state. A major disvalue of the secular is that it has the tendency to turn differences into antagonisms. . . .

The risk Catholicism runs in the university is that faith will be lost. The prize it seeks is that faith will be made stronger and become mine. . . .

See also, while you're at it, Cyril's "97 Aphorisms Adduced from the Thought of Pope Benedict XVI."

January 5, 2018 in Garnett, Rick | Permalink

Wednesday, January 3, 2018

Cecile Richards and the Casual Abuse of Language

A recent post by Margot Cleveland at The Federalist (here) led me to revisit an op-ed by Cecile Richards in The Hill (here).  Among the many contestable assertions set forth in the piece, Richards' remark on then judicial nominee Amy Coney Barrett stands out.  She claims that Barrett "has publicly said that employers should be able to deny their employees access to birth control." 

It is true that, when she was a law professor, Amy Barrett opposed the Obama administration's attempt to repudiate the exercise of the right of conscience and curtail religious liberty through its abortifacient/contraceptive mandate. (See here).  Many MOJ contributors joined in this opposition -- an opposition rooted in both law and morality that was vindicated in the nation's highest court (see here and here).  

Moreover, notwithstanding Cecile Richards' efforts to the contrary, Amy Coney Barrett's nomination was confirmed by the Senate, and she now serves as a judge on U.S. Court of Appeals for the Seventh Circuit (see here).

This happy turn of events should not, however, dissuade us from returning to Richards' casual abuse of language and seeing it for what it is.  Purveyors of abortion, such as Richards, are, of course, famous for employing euphemisms to conceal the gruesome horror of what they actually do (see here and here).

But the abuse of language can take many forms.

The point has already been made by others, but it bears repeating.  Those employers who seek to avoid providing contraceptives and abortifacient drugs through their employee health insurance plans do not thereby "deny their employees access to birth control."  By availing itself of a legal conscience exemption, the employer in no way prevents its employee from driving to the local Walgreens and purchasing a prescription for Ortho-Cyclen or Yaz.  Making use of the exemption does mean that the employer does not wish to subsidize or otherwise directly contribute to a specific legal action undertaken by its employee, but this is not the same as denying the employee access to that course of action.

Indeed, to claim otherwise is to defy the normal meaning of words in English.

To illustrate the point, consider the following.  An employer chooses to provide a number of benefits to its employees -- a 401k plan, a month's paid vacation, subsidized parking, etc. -- but not provide others.  If the employer choses not to provide a particular benefit -- free membership at a health club -- no one would say that the employer had "denied its employees access to the gym."  No one with a basic command of the English language would claim that the employer had prohibited its employees from physical exercise or from living a healthy lifestyle.  We may or may not think the employer's decision wise (e.g. as a matter of encouraging healthy living, or building workplace morale, etc.), but no one would sensibly describe the employer's actions as denial of access to the thing not supplied.  Every employee remains free to lift weights at Gold's or hit the treadmill at Planet Fitness.  They simply must exercise this freedom without the specific financial subsidy or institutional endorsement of their employer.

Of course, the claim of denial of access would make sense in some circumstances. If, for example, the employer refused its employees any time off, the employees would rightly complain that they had been “denied access” to a vacation while remaining employed.  And if the employer declined to make contributions to an employee 401k plan, the employees could say that they had been denied those funds. But they could not say that they had been denied access to saving for their retirement.  In the same way, the employer that chooses not to host a workplace cafeteria could not rightfully be accused of denying its workers access to food – not, that is, without butchering the English language.

Nor would a normal user of English claim that the employer who chose not to provide its employees with free gym memberships be rightfully accused of having "imposed" its beliefs about the value of exercise on its workforce. In the debate over the Obama era HHS abortifacient/contraceptive mandate it was commonplace to hear that the employers opposing the measure were seeking to impose their religious beliefs on their employees (see, e.g. Hobby Lobby, here, Ginsburg, dissenting, p. 32).  This is nonsense.  In seeking an employer religious exemption, the employee is not made to abide by the employer’s beliefs.  Rather both employer and employee are free to follow their own beliefs – as disparate as they may be – without interference from the other.

The casual abuse of language may be ignored, and is easily overlooked, especially when perpetuated by a media sympathetic to the cause being asserted.  The culture wars have claimed many casualties, including religious conscience and the lives of unborn. The ordinary meaning of language should not be added to this toll.

January 3, 2018 | Permalink

Friday, December 29, 2017

Coming up at Lumen Christi in Chicago: "Religion and Religious Expression in the Academy and Public Life"

This upcoming event - at the University of Chicago's Lumen Christi Institute - looks great.  A fascinating cast of presenters: Geoffrey Stone, William Cavanaugh, Bill Schweiker, Laurie Zoloth, Willemien Otten, and Ross Douthat.  


December 29, 2017 in Garnett, Rick | Permalink

Thursday, December 28, 2017

Sex, Power & the Apprenticeship in Self-Mastery

I haven't yet written about the Harvey Weinstein #metoo affair. I guess I haven't felt it necessary to use this particular cultural moment to jump up onto my regular soapbox.  Suffice it to say, I'm not at all surprised this predatory behavior emerged out of the dark underbelly of Hollywood, the cultural epicenter (and exporter) of a vulgar and sex-saturated America. One is just left wondering whether the moment will serve as an opportunity to rethink how we think about sexual intimacy, sexual difference, and sexual equality. Might I recommend Women, Sex & the Church: A Case for Catholic Teaching?

Public Discourse has published some really good essays on the topic over the last few weeks. And the January issue of First Things has two well worth reading. All suggest how the #metoo moment presents the Church with an opening for which she has been preparing since JPII's Wednesday audiences more than thirty years ago. (Or, strike that: since her very founding). For a quick read that hits all the right notes, read this new editorial at the National Catholic Register. Here's a bit: 

More than ever, we need a new social movement inspired by the Church’s own teachings on sexuality and chastity — chastity not as a form of social control, but as the path to an interior freedom born of self-restraint. This freedom makes it possible for a man to see every woman, but especially the woman he loves, as a priceless gift, not as an object to be used....And in marriage, this freedom creates the conditions for an authentic sexual relationship of mutual self-gift.

Though even further afield from 'Catholic legal theory,' I want to add one really practical (parenting) note about the self-restraint (though I prefer self-mastery) needed for self-gift. From my talk on the "hook up culture" at the World Meeting of Families in 2015: 

The role of parents in forming our children to live lives of sexual integrity does not begin when boys and girls have reached their teen years and sexual hormones are already raging. If young men and women are going to resist both the urgings of their bodies and the cultural pressures toward recreational sexual encounters, self-mastery must be learned, in the smallest of ways, in the early years at home. As the Catechism puts it, chastity requires “an apprenticeship in self-mastery which is training in human freedom.” [Here I list the many, many practical ways the family serves as a school of virtue.] If children are habituated to give into their bodies’ every desire in little things [food, electronics, etc] or to remain sluggish in the face of family responsibilities, even well-catechized, intellectually converted teens will be hard-pressed to resist the allure of a premarital sexual relationship.

Finally, apropos of larger philosophical trends, if you haven't yet read Robby George's latest book, Conscience and Its Enemies, check out this lively presentation of its key chapter (in my view) at the recent Love & Fidelity Network conference. His description of the classical/revisionist disagreement of the nature of liberty and of a liberal arts education--to wit, what is it that we seek to liberate ourselves from?--is the proper lens through which we ought to understand the bad behavior in Hollywood and elsewhere. Is reason to be the master of my desires in and through the cultivation of intellectual and moral excellence (aka, virtue), or is reason, ala Hume, merely the "slave of the passions"?

Culturally, we've opted for the latter - so why are we so surprised?

December 28, 2017 in Bachiochi, Erika | Permalink

Wednesday, December 27, 2017

Dreher on Decline, Fall, and What Then: the Habsburgs and Today

Rod Dreher has a thought-provoking post reflecting on Joseph Roth's 1932 novel The Radetzky March, which narrates the decay and collapse of the Habsburg empire and society, culminating in WWI, through the story of one doomed aristocratic family:

      What makes Radetzsky resonate so deeply is that the story it tells is a universal one, though it happens to be set in a particular time and place. It is a story about the effect of time on all human institutions and ways of seeing the world. It’s impossible to read Radetzsky without wondering if our own liberal democratic institutions and ways of ordering our experiences are declining as surely as the Austro-Hungarian monarchy — and we can’t see it clearly because we are caught up inside it, and we have powerful internal confirmation biases telling us that something this fine should be eternal....

      The problem is that the people who would have been capable of making the kinds of changes that might have saved the system in some form were incapable of thinking outside the system. Consider how hard this would be for anybody, in any place and time. As Kierkegaard said, life has to be lived forwards, but can only be understood backwards.

      Think about how the Republican Party, for example, could not see Trump coming, even though the signs were there.... Or think beyond the GOP, to the entire system. We can see that big, big changes need to be made, especially economically. But where is the will to make the changes? And who knows exactly what to do? We should also see, but many do not, that the way we are living in general is unsustainable. But we aren’t at the crisis point yet.

Much more follows: about Patrick Deneen's new book Why Liberalism Failed, and, as one might expect, how this relates to the "Benedict option."

December 27, 2017 in Berg, Thomas, Books, Current Affairs | Permalink

Friday, December 22, 2017

"The only good Catholic is a bad Catholic."

In looking into the relationship between anti-immigrant sentiment and anti-Catholicism earlier today, I came across an interesting New York Times write-up of a panel on anti-Catholicism that took place in 2008. Unsurprisingly, Fr. Neuhaus's observations stood out. I've highlighted the most provocative and seemingly accurate Neuhaus-ism, which I've not previously seen.  

The Rev. Richard John Neuhaus — a leading conservative intellectual, a former Lutheran pastor and the editor of the leading Catholic journal First Things — offered a surprising view on the question.

“To be a Catholic is not to be refused positions of influence in our society,” he said. “Indeed, one of the most acceptable things is to be a bad Catholic, and in the view of many people, the only good Catholic is a bad Catholic.

Father Neuhaus dismissed the notion that anti-immigrant sentiment was related to anti-Catholicism, since many Latino immigrants to the United States are Catholic. (But he did note that the church, which has been strongly pro-immigrant, could be seen as having a vested interest in the immigration debate, since immigrants are a major source of members.)

Would that Fr. Neuhaus were wrong; but he was, and remains, right.

December 22, 2017 in Walsh, Kevin | Permalink

Mormons, Missionaries, Catholics, and the N.B.A.

I was speaking yesterday with a politically astute acquaintance who had a theological rather than political take on why Senator Orrin Hatch has been a champion of amending the Constitution to make naturalized citizens eligible to be President of the United States.

My political take had been that the natural born citizen eligibility requirement was particularly salient for a Senator from Utah because (1) the "natural born" status of children born abroad to American parents is legally unclear, and (2) Utah voters are disproportionately more likely than voters in other states to have families with children born abroad to American parents. But (2) may not be true because Mormon missionaries are overwhelmingly single and stay that way during their mission.

My acquaintance's alternative explanation was the Mormon emphasis on conversion, and the similarity between naturalization and conversion. I'm not well-versed enough in Mormon theology to assess this explanation, but the similarity between naturalization and religious conversion is an obvious one.

Attend a naturalization ceremony and watch the new citizens take their oath to the United States (see around 3-minute mark), and you'll see how. Alternatively, consider the wording of the Oath of Allegiance:

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God.

The renunciation of one's prior allegiance, together with the promise to "bear true faith and allegiance" to the Constitution and laws of the United States of America, combines commitments of both head and heart. 

According to Gerhard Casper, the "abjuration" oath probably originated with John Jay. It has been in federal law since the Naturalization Act of 1795, which in turn seems to have had a provision of New York's Constitution of 1777 as its model. If Casper is right, then the federal abjuration oath and the natural-born citizen requirement for presidential eligibility share the same parentage. 

Many Americans of the founding generation were anti-Catholic, of course. Among this group, John Jay is particularly prominent. One of Jay's concerns was that Roman Catholics would hold an allegiance to the pope and other ecclesiastical authorities above allegiance to the civil government, and that even if such allegiance were abjured, Roman Catholics would treat the pope as having authority to absolve individuals' allegiance to the civil government. These concerns were later reflected in the 1850s proposal by Know Nothing leader Thomas Whitney to add "ecclesiastical" to the abjuration oath.

Given the history of the natural born citizen requirement and the historical intertwining of anti-Catholicism with anti-immigrant sentiment, American Catholics would seem to be a natural base of support for an amendment to remove the "natural born" presidential eligibility requirement from the Constitution.

It's time for a new season in our stance as a nation toward naturalized citizens. Go N.B.A.!

December 22, 2017 | Permalink