Monday, June 26, 2017
Thanks to Rick and Marc for the good additional thoughts on Trinity Lutheran.
Rick rightly says that the fact that church daycare admitted students of different faiths was not relevant to the Court's free exercise holding. It makes little sense as a matter of constitutional doctrine to say that the church has constitutional status of religious equality but loses that status as a constitutional matter if it does what a church does, like choose members or employees based on its faith. On the other hand, I think it would get a little trickier (under precedent, that is) if the state adopted a regulation saying that all recipients of the funding must obey rules of nondiscrimination based on religion. The Court in Christian Legal Society v. Martinez treated that as a neutral, generally applicable rule and upheld it. Now, Martinez was a terrible decision--among other things because so-called "religious discrimination" by a religious group is simply an act defining the group around its mission in the way that all mission-oriented groups do. That reality is not changed merely because a state passes a regulation calling it impermissible discrimination. Nevertheless Martinez is out there and--like other regulatory conditions on access to benefits--will probably be the major sort of issue going forward, as I suggested in part 2 of my first post.
Marc asks why the arguments about the animus behind Blaine Amendments didn't figure in the Trinity opinion. One answer is that the arguments were not very strong concerning Missouri Article I, section 7, the exclusion of churches, the provision to which the state pointed. Exclusion of churches from funding predates the Catholic-Protestant controversies (including Blaine) by decades--unlike exclusion of religious schooling, which was intimately bound up with mid-19th-century anti-Catholicism and Protestant-oriented public school policies. Moreover, claims of "animus" (and similar claims like "gerrymandering" or "intentional targeting") end up being stronger or weaker according to the degree of disproportionate effect on the allegedly targeted group. (Say what you want about the Trump travel ban, its restriction falls almost entirely on Muslims; no one has ever claimed Trump's anti-Muslim campaign statements would invalidate the order in the absence of this strong discriminatory effect.) Missouri's exclusion of churches may have been enacted during the anti-Catholic period around the Blaine Amendment, but it hit Protestants too because, well, they have churches--while the exclusion of K-12 schools (especially of "sectarian" schools) hit almost solely Catholics and very few Protestants. As such, the Blaine/animus arguments did not resonate particularly well in Trinity and were a minor part of the church's briefing. What resonated far more was the simple wrongness of disqualifying a church, whose playground serves kids whose interests matter as much as any other kids.' But I suspect that Blaine arguments will remain central in cases like Douglas County (see their amicus brief here) from Colorado, whose 1876 provision focused on "sectarian" schools. (I assume Douglas County will be GVRed, the Colorado courts on remand will continue to reject the Blaine and other arguments, and they'll all come back to the Supreme Court in a year or two.)
I have very little to add to Marc's and Tom's helpful reflections on today's Trinity Lutheran case. Like Marc, I'm struck by the complete irrelevance to the Court's reasoning of the Blaine Amendments' anti-Catholic history, context, and purpose (for more on that, see, e.g., this). I wonder what (if anything) this silence means for the "animus" argument in the context of the "Travel Ban" litigation?
I do think it is worth noting -- primarily by way of a response to a suggestion made by Melissa Rogers in this news story -- that nothing in the case turned on the fact that Trinity Lutheran's pre-school (quoting the Chief Justice's opinion) "admits students of any religion." That is, contrary to the argument in this amicus brief, it would not be the case that allowing a church-run daycare that did prefer co-religionists to participate in an evenhanded, secular-purpose program like the one at issue somehow constitutes government subsidization of (invidious) "discrimination."
Trinity Lutheran Church has just come down, and Tom has a nice summary and set of good comments below. I agree with much of what he says, though I have a different sense of the considerable staying power of separationism than he does. More on that in the coming months.
For now, here's one thought: this case concerned Missouri's Blaine Amendment, which is quoted in full by the Court. Many states have similar amendments, enacted frequently sometime after the failure of James G. Blaine's proposed federal constitutional amendment. The Blaine Amendments are the subject of great controversy in legal scholarship because of the anti-Catholicism that has been shown to have motivated them--the "animus" in the conventional argot. Some scholars believe that this motivational evidence is overblown. Others believe that even if the evidence exists, these provisions can be justified today on "neutral" grounds, or grounds of public reason liberalism, or some such grounds. Discussion about the Blaine Amendments' tainted genesis--their anti-Catholic animus--has been on the law and religion scholarly agenda for years. And in Locke v. Davey, the opinion of CJ Rehnquist for the Court focused very much on animus issues (Justice Scalia, in his dissent, disputed that animus was relevant, insisting instead that what the law did was relevant). In Mitchell v. Helms, another funding case where the challenge was on Establishment Clause grounds, Justice Thomas devoted a chunk of his plurality opinion to disavowing the claim that aid to "sectarian" schools is justified on Establishment Clause grounds as tainted by wicked animus:
Finally, hostility to aid to pervasively sectarian schools has a shameful pedigree that we do not hesitate to disavow....Although the dissent professes concern for “the implied exclusion of the less favored,” the exclusion of pervasively sectarian schools from government-aid programs is just that, particularly given the history of such exclusion. Opposition to aid to “sectarian” schools acquired prominence in the 1870's with Congress' consideration (and near passage) of the Blaine Amendment, which would have amended the Constitution to bar any aid to sectarian institutions. Consideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that “sectarian” was code for “Catholic.”
Mitchell did not involve a state Blaine Amendment. Trinity Lutheran did. And yet you will search in vain for any reference to Blaine Amendments, the constitutional history of the period, "animus" analysis (or even the word "animus"), the motivation of those who excluded Trinity Lutheran from the funds at issue, or indeed any inquiry as to motivation. The focus is squarely on what the law did here, in this case, seemingly for this day only. In classic Roberts style, it is exquisitely minimalist. Just like Hosanna-Tabor, it goes in for hyper-particularism. This is why I very much agree with Tom's point # 3 below. Indeed, the Chief's opinion is taken to task by Justice Gorsuch for being insufficiently "principled." Justice Gorsuch would have preferred a decision more maximal in nature.
But quite apart from the scope of the decision, nobody, but nobody, went in for deep dives into motivational inquiry in this case. It will be interesting to see just how that methodological preference works itself out in future disputes.
The Court has ruled, 7-2, that the state of Missouri violated the Free Exercise Clause when it disqualified Trinity Lutheran Church, because it was a church, from a general program under which it could have applied to receive state funds to purchase recycled tires and resurface its playground. The Court held that "[t]he Department’s policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.... [S]uch a policy imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny."
A few initial thoughts:
1. It's a strong win for equal participation of religion, and free religious choice, in government benefits. For one thing, this is the first time the Court has held that a religious organization, indeed a church, must be included on equal terms in a general program of government funding. Rosenberger (1995) involved a university program of funding student organizations to engage in speech; the Court there held that the particular program created a limited public forum for speech, from which religious viewpoints could not be excluded. The Court has refused--and still does--to treat government funding programs for substantive policy purposes (education scholarships, K-12 vouchers, etc.) as creating forums for speech. So this case, relying on the Free Exercise Clause, is an important step in preventing states from singling out religious schools for exclusion from school-choice programs. Most previous decisions had merely allowed equal inclusion of religious entities/persons; Trinity requires it.
It's also strong because the vote is 7-2 and includes Kagan and Breyer (although the latter concurred in the judgment only). The once-dominant strict separationist position that barred aid broadly to religious organizations, especially to houses of worship, is represented only by Sotomayor and Ginsburg. Trinity gives further confirmation of the sea change that has happened in aid cases over the last 30 years: a strong tide away from no-aid separationism and toward equal participation in aid programs--which I think, on the whole, also serves the values of choice and freedom in matters of religion.
Finally, the majority narrowly reads Locke v. Davey (2004), which approved (7-2 the other way!) the exclusion of "devotional theology" students from a broad program of state-funded college scholarships. The broad readings of Davey--that denial of funding is simply not a burden on religion--are now decisively rejected. Instead, the Court emphasized that the denial there was based on a particular use of funds (for pursuing a degree in devotional theology) and that Davey had many ways of including religious elements in his state-funded education: he "could use his scholarship to attend a religious college," includnig a "pervasively religious" college, "and take devotional theology courses there," as long as he didn't pursue a major. Davey might now be narrowed to its facts; it may only involve exclusions of clergy education (which the Court discussed a lot in the Davey opinion); at the very least it is a much smaller obstacle now to suits challenging the exclusion of religious institutions or their students from generally available aid programs.
2. In important ways, the state-religion issues have bypassed the aid cases. It's important that there is now such a strong consensus against broad exclusions of religious institutions from government aid. But since about 2010, the action in religious liberty cases has shifted to conflicts between government regulation and religious conscience or identity, as exemplified in the cases over same-sex marriage (cert granted today in the Masterpiece Cakeshop case), the Obama HHS contraception mandate, and exclusions of student religious groups that requires standards of belief or conduct for their leaders (CLS v. Martinez, 2010). If religious groups or individuals can participate in benefit programs on equal terms, but those terms regularly include general conditions that conflict with their religious convictions or identity, then not much has changed in practice. So the location of the fights between traditionalist religious organizations and their more secular, separationist, or progressive counterparts has shifted to another part of the battlefield. Trinity has something to say about those fights to the extent they involve government benefits: the decisions rests on the proposition that "the Free Exercise Clause protects against 'indirect coercion or penalties on the free exercise of religion, not just outright prohibitions,'” meaning that application of, say, nondiscrimination laws to deny a religious organization benefits (like tax-exempt status) does create a free exercise burden. But the main questions in those fights--such as whether the government's regulation is generally applicable or (if RFRA is involved) serves a "compelling interest"--are different from those in Trinity.
3. The decision is strong, but it scope is uncertain. Trinity says that the state cannot deny aid on the ground of the recipient's religious status, character, or identity; the remaining question is whether it can deny aid on the ground that it will be used for religious purposes (this is the ground of some of the state exclusions, although not others). If religious uses can still be singled out for exclusion, then states will still be able to deny K-12 vouchers to religious education, since a voucher inevitably covers the religious element of schooling.
Trinity leaves this question open. Footnote 3 in the majority opinion expressly does so. Justices Thomas and Gorsuch did not join that footnote, so it reflects only four votes rather than six. But Justice Breyer, in concurring in the judgment, also said he was deciding only the question of exclusion from public health and safety benefits and was "leav[ing questions concerning] other kinds of public benefits for another day." (And he thinks that including religious schools in K-12 vouchers actually is forbidden; see his dissent in Zelman (2002).) Plus the two dissenters, Sotomayor and Ginsburg, presumably will not vote to extend Trinity to forbid exclusions based on religious use rather than religious status.
That leaves Thomas and Gorsuch, who each wrote concurrences (and joined each other's) suggesting that they would strike down the singling out of religious uses for exclusion. Thomas noted, approvingly, that the majority opinion seemed to confine Locke v. Davey to the very narrow context of "ministerial training." Gorsuch likewise suggests Davey is limited to ministerial training, but his opinion is more extensive and, like other separate opinions he wrote this term, announces he will make his intellectual and rhetorical marks on the Court:
[T]he Court leaves open the possibility a useful distinction might be drawn between laws that discriminate on the basis of religious status and religious use. Respectfully, I harbor doubts about the stability of such a line. Does a religious man say grace before dinner? Or does a man begin his meal in a religious manner? Is it a religious group that built the playground? Or did a group build the playground so it might be used to advance a religious mission? ... Often enough the same facts can be described both ways....
Neither do I see why the First Amendment’s Free Exercise Clause should care. After all, that Clause guarantees
the free exercise of religion, not just the right to inward belief (or status).... I don’t see why it should matter
whether we describe that benefit, say, as closed to Lutherans (status) or closed to people who do Lutheran things
(use). It is free exercise either way.
Thomas and Gorsuch are only two votes, so the question whether states can single out religious uses for exclusion remains open. But Trinity nevertheless sends a clear signal: the Court will treat exclusions of religion from general benefits program with far more skepticism than the deference given in Davey. And if it takes the next step, striking down exclusions of religious uses, Gorsuch's attack on the status-conduct distinction will provide at least a section of the road map.
Friday, June 23, 2017
Earlier this week, Christian leaders gathered in Washington to express their support for criminal justice reform. With Attorney General Sessions putting the brakes on the developing bipartisan consensus that we face an incarceration crisis in our country, it is reassuring to see conservative Catholic and evangelical leaders stepping up to affirm that "our over-reliance on incarceration fails to make us safer or restore the people and communities who have been harmed." The initiative is another reminder that Prison Fellowship (founded by Chuck Colson after he served his time for Watergate) remains one of the most effective Christian ministries today, particularly in its capacity to draw conservative Christians' attention to issues that do not often appear on voter scorecards. You can read the "Justice Declaration" here.
Thursday, June 22, 2017
A short note on the feast-day of the martyr-saints John Fisher and Thomas More: I believe that the spiritual biography of Henry VIII has yet to be written, and may never be. There are a number of good secular and political biographies, and those are important and worthy. To understand the deep tap-roots of Henry's part in the English reformation, however, would in my view require a treatment of his spiritual degeneration. Perhaps syphilis and kingship and the Tudor character explain it all. Perhaps, however, something worse was at work.
Consider the nature of Henry's rage. When Paul III made Bishop John Fisher a Cardinal, seeking to protect him -- what decent Christian would lay hands on a Prince of the Church? -- the effect was the opposite of the intention. As the Catholic Encyclopedia recounts, "Henry forbade the Cardinal's hat to be brought into England, declaring that he would send the head to Rome instead." Who, or perhaps I should say what, could speak with such flippancy and relish of beheading a venerable priest? Who or what is so wicked and yet so childish?
Another example: I remember vividly a tour of Christchurch Priory in Dorset, the former domain of the Countess of Salisbury, a peeress in her own right, relative of kings and the last of the great Plantagenets. She is perhaps better known to Catholics as the Blessed Margaret Pole, gruesomely martyred by Henry in the Tower for refusing to abjure her son, Cardinal Reginald Pole, the last Catholic Archbishop of Canterbury. (I do not say "for the crime of refusing to abjure" because Henry in his urgency bypassed regular judicial procedure). The Countess was seventy years old, was hacked to death, and was buried in the Tower graveyard because Henry refused to allow her to be buried in her own chantry chapel at Christchurch Priory. Who or what could be so bitterly vengeful against an old lady, whose great fault was to be a faithful and loving mother?
Indeed, our tour guide at Christchurch Priory showed us the Countess' partially despoiled chantry chapel, and recounted -- English localities have very long memories indeed -- that Henry's men had come with specific orders to deface the decorations within the chapel, even the ones not visible from the ground. (The tale is confirmed by a letter from the King's Commissioner). Who or what would care to deface what is visible only to God? "What rough beast, its hour come round at last..."
The spiritual biography of Henry, then, would have to comprehend the nature and source of the malevolent rage that consumed him. A model might be Patricia Snow's explanation for the cold gleeful fury at the heart of Hilary Mantel -- and the Culprit might well turn out to be the same in both cases.
June 22, 2017 | Permalink
Tuesday, June 20, 2017
Over at First Things, Prof. Philip Hamburger lays out the history, context, and meaning of the so-called Blaine Amendments and their relevance to the pending Trinity Lutheran case. Here's a bit:
In fact, the Blaine Amendments are among the clearest examples in the nation’s history of a state establishment of religion—and the only reason they have not been recognized as such is that they establish a theologically liberal vision of religion. The formal establishment of relatively orthodox churches came to an end in the early nineteenth century, and the Blaine Amendments mark the political ascendancy and establishment of theological liberalism—an establishment not of any particular, let alone orthodox church, but of a vision of individual spirituality unimpeded by ecclesiastical authority.
This theological vision is now so pervasive that judges barely recognize the Blaine Amendments as having established a distinctive religious point of view. But this is the reality, and the amendments are thus unconstitutional in ways that go far beyond the questions raised in Trinity Lutheran.
If the courts are to be taken seriously on questions of religious liberty, they cannot whitewash theological prejudice and the resulting discrimination. For approximately 75 years, the Supreme Court has enforced the Constitution’s religion clauses against the states—often razing to the ground relatively innocuous practices. The Blaine Amendments, however, still stand as monuments to theological animosity and discrimination. A constitutional accounting is long overdue.
Monday, June 19, 2017
It's a "Captain Obvious"-level obvious point, but the Court handed down two cases today -- Matal v. Tam and Packingham v. North Carolina -- that seem entirely consistent with the Justice-Kennedy-era Court's highly libertarian, regulation-skeptical approach to the First Amendment's Freedom of Speech. Although there were some concurring opinions, it's striking that, at the end of the day, the free-speech claimant won in both cases unanimously. It strikes me as plausible that the justices are sending signal to those who have been suggesting recently that the First Amendment does not protect offensive, hurtful, divisive, or "hateful" speech and, perhaps, mean to shape the debate about speakers, speech, protests, etc., on public-university campuses. Justice Kennedy wrote, in his concurring opinion (joined by three of the Democratic appointees):
The danger of viewpoint discrimination is that the government is attempting to remove certain ideas or perspectives from a broader debate. That danger is all the greater if the ideas or perspectives are ones a particular audience might think offensive, at least at first hearing. An initial reaction may prompt further reflection, leading to a more reasoned, more tolerant position. Indeed, a speech burden based on audience reactions is simply government hostility and intervention in a different guise. The speech is targeted, after all, based on the government’s disapproval of the speaker’s choice of message. And it is the government itself that is attempting in this case to decide whether the relevant audience would find the speech offensive.
Friday, June 16, 2017
I'm not sure what the most effective response to the dearth of civil, respectful political debate in our country is, but I certainly don't think the answer is to quelch all dialogue. But that seems to be exactly what the Republican leadership in the Senate is doing with its response to the House's American Health Care Act. As this Washington Post article reports, Senator McConnell has invoked the fast-track procedure that will bring the bill right to the floor for a vote, without any committee hearings. The bill itself is being negotiated in private, with the expectation that it would be released within 24 hours of a vote, leaving nobody who might want to undertake a thoughtful examination of these important issues with any time to do so. I don't pretend to understand all the details of the complexities of the ACA or its reform, but I am seeing desperate appeals from disability advocacy groups (like this from the National Down Syndrome Congress, and this from The Arc), describing the devastating effect the changes to Medicaid currently in the House bill, and likely to be in the Senate bill, will have on services to people with disabilities. If you don't have a family member with a disability, have you heard anything at all about this aspect of ACA reform?
This really isn't any way to run a country, is it?
Monday, June 12, 2017
I have an op-ed in the Minneapolis Star-Tribune explaining why it is difficult, in light of current American law, to interpret Saturday's nationwide "anti-Sharia" marches as anything other than anti-Muslim. An excerpt:
The religious terms of an agreement do not and should not prevent courts from enforcing it. Just as the rule of law is not threatened when courts apply canon law in handling a bankruptcy case for an archdiocese or enforcing an arbitration agreement based on biblical principles, the rule of law is not threatened when Muslim litigants order their lives in keeping with their faith.
The most recent anti-sharia initiatives reflect a change in strategy — instead of forbidding courts from considering sharia law, they prohibit the enforcement of any foreign law that would result in the violation of a constitutional right. These new laws are of no practical effect — we do not need new statutes to tell judges not to violate the constitutional rights of litigants. (That’s what the Constitution is for.)
These newer initiatives may be without practical effect, but they’re not meaningless. They — like the marches convened on Saturday — are packed with meaning that is not lost on Muslim Americans. The aim of these efforts is not legal reform — it is fearmongering.
Feedback, as always, is welcome.
Senator Kirsten Gillibrand is the latest reminder of an unfortunate lesson the Democrats have drawn from President Trump's election: show your populist streak by swearing more in your speeches.
Jeet Heer now argues in the New Republic that we need more of this, not less:
The new wave of swearing isn’t the cause of a breakdown in civility, but a symptom of a national crisis. These are dire times in the U.S. The president is a manifestly unfit kleptocrat who may have obstructed justice, but he’s not going to be impeached anytime soon because he has the support of his party. The only proper response is a full-scale attack on the political system, which requires rallying the public by letting them know just how foul things are—a task best accomplished with foul language. Trump represents an existential threat to American democracy. In this state of emergency, there’s no room for wimpy euphemisms and lofty rhetoric.
Lovely. Nothing is off limits, of course, because we have never faced such an existential threat to our political system! A leader could invoke "the better angels of our nature" in 1861 because that leader probably knew nothing about national division and discord. If that leader had ever encountered a Trump-sized threat, he'd have been invoking fewer angels and dropping more F-bombs. And why raise a hand to stop the demolition of traditional norms of civility -- norms that, I feel obliged to point out, bear no culpability for the economic dislocation at the root of our current "anti-establishment" moment -- when we can grab a sledgehammer and join in the fun?
Well, at least the election has caused Democrats to rethink their litmus test on abortion rights. Oh wait.
Sunday, June 11, 2017
Also For Trinity Sunday: The Identification of the God of the Philosophers with the God of Revelation
I appreciate the point of Kevin Walsh's post for Trinity Sunday (here) in which he quotes Catherine Mowry LaCugna's book God For Us: The Trinity and Christian Life, and her contention that an adequate response to the fundamental questions posed by late modern thought "cannot [be] answer[ed] by taking refuge in the classical metaphysical properties of God," and that the only appropriate response "is for Christian theology to start afresh from its original basis in the experience of being saved by God through Christ in the power of the Holy Spirit. The only option for Christian theology, in other words, is to be trinitarian."
I wholly agree with LaCugna's injunction that Christian theology must be thoroughly trinitarian. And, while I confess that I have not read her book (so she very well may address this in the text) I think that her dismissal of the Church's teaching concerning the inner life of God -- what she calls "the nonsoterialogical doctrine of God" -- is mistaken. We must be prepared to give an account for our reason for hope (1 Peter 3:15) to explain what we mean when we say that we are "saved by God through Christ in the power of the Holy Spirit." That is, we must be prepared to say what we mean by "God," "Christ," and "Holy Spirit."
To reflect on "the classical metaphysical properties of God, such as omnipotence, omniscience, omnibenevolence, impassibility, incorporeality, and simplicity" is not to "take refuge" in a metaphysics divorced from God's self-disclosure to the people of Israel and in Jesus Christ. Rather, it represents the Church's effort to know God, and to explain how the Christian God differed from the gods of the ancient world, whether Zeus, or Osiris, or some other god.
As Joseph Ratzinger explains in his Introduction to Christianity (a beautiful and erudite reflection on the Apostles Creed that he wrote shortly after the Council), in the milieu of the pagan world, the early Church "boldly and resolutely made its choice and carried out its purification by deciding for the God of the philosophers and against the gods of the various religions" (p. 94). Against the "deceit and illusion" of the ancient religions, the Church declared "When we say God, we do not mean or worship any of this; we mean only Being itself, what the philosophers have exposed as the ground of all being, as the God above all powers -- that alone is our God" (p. 95).
This movement was "the movement of the logos against myth" (Id.). This choice was the choice of truth over custom, that is, over a preserved ritual that was "devoid of reality" and "divorce[d] from truth" (p. 97) -- for all that remained of pagan cosmology, after being subject to the critique of the philosophers, was custom "as mere furniture and outward form of life" (Id.). Here Ratzinger quotes Tetullian who articulated the Church's position "with splendid boldness": "Christ called himself truth, not custom" (Id.).
Yet in deciding for the logos, for truth, for the God of the philosophers, the Church did not opt for a lack of religion -- for a lack of relationship, for an arid philosophical belief. As Ratzinger explains:
"By deciding in favour of the God of the philosophers and logically declaring this God to be the God who speaks to man and to whom one can pray, the Christian faith gave a completely new significance to this God of the philosophers, removing him from the purely academic realm and thus profoundly transforming him. This God who had previously existed as something neutral, as the highest, culminating concept; this God who had been understood as pure Being or pure thought, circling round for ever closed in upon itself without reaching over to man and his little world; this God of the philosophers, whose pure eternity and unchangeability had excluded any relation with the changeable and transitory, now appeared to the eye of faith as the God of men, who is not only thought of all thoughts, the eternal mathematics of the universe, but also agape, the power of creative love. In this sense there does exist in the Christian faith what Pascal experienced on the night when he wrote on a slip of paper which he henceforth kept sewn in the lining of his jacket the words" "Fire. 'God of Abraham, God of Issac, God of Jacob', not 'of the philosophers and scholars'." He had encountered the burning bush experience, as opposed to a God sinking back completely into the realm of mathematics, and had realized the the God who is the eternal geometry of the universe can only be this because he is creative love, because he is the burning bush from which a name issues forth, through which he enters the world of man. So in this sense there is the experience that the God of the philosophers is quite different from what the philosophers had thought him to be, though he does not thereby cease to be what they had discovered; that one only comes to know him properly when one realizes that he, the real truth and ground of all Being, is at one and the same time the God of faith, the God of men." (pp. 99-100).
June 11, 2017 | Permalink
Friday, June 9, 2017
I recently had occasion to revisit God For Us: The Trinity & Christian Life, by Catherine Mowry LaCugna. I thought I'd share a brief excerpt in anticipation of the upcoming Trinity Sunday:
Christian theism has been severely criticized of late because it is said to be projective (Feuerbach, Freud); sexist, patriarchal, and clerical (feminism); bankrupt (atheism; death of God); static (process thought); ideological (liberation theology); nonreferential (analytic philosophy). In effect, these critiques testify to the deleterious outomce of the Christian doctrine of God that is in many respects secular, constructed out of philosophy, not out of the self-revelation of God in Christ. The root of the nonsoteriological doctrine of God is its metaphysics of substance: the pursuit of what God is "in se," not what God is 'in Godself' or 'by Godself.' All of the critiques of classical theism cry out for soteriology: Can we believe in God after Auschwitz? Can a male savior save women? Does God's justice prefer the rich and powerful? Can God respond to petitionary prayer? Does belief in God inhibit the full development of human persons? Does God predetermine the fate of individuals, and is freedom illusory? All these questions are at base questions about the character, the 'who' of God. Theology ought to be able to answer them. Theology cannot answer them by taking refuge in the classical metaphysical properties of God, such as omnipotence, omniscience, omnibenevolence, impassibility, incorporeality, and simplicity, since these are the very attributes that seem dubious. The only option is for Christian theology to start afresh from its original basis in the experience of being saved by God through Christ in the power of the Holy Spirit. The only option for Christian theology, in other words, is to be trinitarian.
Thursday, June 8, 2017
Professor Kathleen Sullivan once wrote that the First Amendment's provisions on religious freedom and equality reflect "a substantive recognition that there is more than one path to heaven and not as many as once thought to hell." To which Michael McConnell responded: "That is not the disestablishment of religion. It is the establishment of Unitarian-Universalism." (From The Bill of Rights in the Modern State 124 n.50 (U. Chicago Press 1992).
That phrase applies to Bernie Sanders' criticism of Russell Vought, nominee for deputy director of the Office of Management and Budget, for having posted online statements that Muslims "stand condemned" and "do not know God because they have rejected Jesus Christ his Son." From Huff Po:
Such a statement is “indefensible, it is hateful and Islamophobic, and an insult to over a billion Muslims throughout the world,” Sanders told the room. He asked Vought, who sat facing him, if he thinks his past comments are Islamophobic.
“Absolutely not,” replied Vought, a former vice president of the conservative Heritage Action for America. “I’m a Christian, and I believe in a Christian set of principles based on my faith. That post … was to defend my alma mater, Wheaton College, a Christian school that has a statement of faith that includes the centrality of Jesus Christ for salvation.”
Sanders interjected, “Do you believe that people in the Muslim religion stand condemned?” ...
“Senator, I’m a Christian ... ,” Vought began again.
“I understand that you are a Christian!” Sanders shouted. “There are other people of different religions in this country and around the world. In your judgment, do you think that people who are not Christians are going to be condemned?”
Vought said he respects all people and repeated that he wrote his post based on being a Christian. That was it for Sanders.
“I would simply say, Mr. Chairman, that this nominee is really not someone who is what this country is supposed to be about,” Sanders said, gathering up his papers. “I will vote no.”
Believing that one's religion is the only way to God is quite common and surely should not in itself disqualify someone from office. Making that alone the basis for disqualification violates the principles of the Free Exercise Clause, the Religious Test Clause (for federal offices like those in OMB), and the Establishment Clause--by, as McConnell pointed out, establishing universalism as the only permissible religious opinion for federal officials.
(As I understand the context of Vought's views, he was defending Wheaton College's decision to fire Larycia Hawkins, a professor, for stating that Muslims "worship the same God" as Christians do. In that context Vought, a Wheaton alum, argued that the college could fire her because one cannot worship the same God--not even deficiently--without approaching God through Christ. My own views on that question, expressed here on MOJ, are almost certainly closer to Prof. Hawkins's than to Mr. Vought's. But the issue is not which view of God and salvation is theologically accurate; it is whether Vought should be disqualified from this office for his view.)
Religious beliefs criticizing or condemning other faiths are relevant in some cases. It would be relevant if Vought had written that Muslims as a group cannot be trusted as citizens because of their religion (claims we unfortunately see all too often). But that form of criticism/condemnation concerns civil status and participation, not religious salvation. The civil equality of religions under the First Amendment does depend upon officials avoiding blanket statements that members of a faith cannot be trusted as citizens, because it's short step from such statements to treating people unequally in civil matters. (Probably a short enough step to justify voting against any nominee who wrote that Muslims can't be trusted.) But Vought said that Muslim citizens are entitled to equal respect; he made clear, in his post and his attempts to answer Sanders, that he was speaking about theological not civic matters--about the nature of God, worship, and the way to salvation. And the First Amendment rests upon bracketing such theological disputes, neither punishing nor favoring people for their varying views. Without such bracketing, those with non-pluralistic beliefs on ultimate matters will themselves face civil restrictions and discrimination. A belief that another person is condemned in an ultimate sense might lead one to mistreat or disrespect them in civic matters, but surely not necessarily so. People with such non-pluralistic theological beliefs live and work with others respectfully day after day in myriad settings (partly because they believe that it is not a matter of comparative merit--that all, even nominal Christians, are condemned in an ultimate sense unless they rely on Christ).
If the nominee is to be working in a field where his or her attitude toward another faith is relevant, even a publicly expressed belief about ultimate matters could well interfere with performing the job. You certainly could vote against confirming an ambassador to Saudi Arabia who expressed Vought's view about Muslims and salvation. But unless I greatly misunderstand things, beliefs about ultimate salvation are irrelevant to ability to do the work of the OMB. Thus to vote against someone for OMB is simply a penalty on his belief, a bare religious test for a federal office, and a statement that universalism is the orthodox view on religious salvation.
Fear and prejudice toward Muslims is a significant problem in our country. But the resistance to it should take the form of guaranteeing civic equality, and countering true hate, not imposing disabilities solely for views about theological matters. Belief that a religion is false, and cannot lead one to God or ultimate salvation, can coexist with respect for the equal dignity of its members. If we assume that the two cannot coexist, we will start reinjecting the government into controversies about ultimate matters that our religious-freedom tradition has wisely sought to avoid.
Tuesday, June 6, 2017
In trying to understand Steve Bannon's outlook recently, I found myself wondering how it cohered with Catholic teaching about nations and peoples. That teaching, I think, is easier to understand than Bannon's outlook, if only because one must rely on reporting about Bannon. In any event, an important Catholic perspective on nationalism can be found in John Paul II's October 5, 1995 Address to the United Nations.
I was a sophomore in college that fall, and I remember one of my college chaplains remarking that Pope John Paul II's observations about the rights of nations were important. So I went and looked it up this evening. It's worth reading.
Extended excerpt after the jump:
Of course Rob is right just below to put serious questions to the view that we are resolutely not to judge when it comes to professional and other cultural values, and not to "impose" "our" values on law students as we acculturate them into the legal profession.
He is right because law is all about values and their imposition on others. Law may not be command pure and simple, but much of it is command. And even the part that is not command presupposes and incorporates moral views and dispositions at every level, to include evaluations of the proper scope of moral disagreement within the profession and the culture at large. If you are not interested in good (i.e., moral) governance, law is not for you. There is no line between the values that a law instantiates that are "moral" and those that are not. They are all moral.
The trouble is that anti-legal moralism dies very hard, dating all the way in our own tradition from the fight between Stephen and Mill and right on through to the present, a fight that the legal moralists have been widely proclaimed to have lost. Many students, in particular, have been raised on a soft and not well thought-through moral libertarianism that forces and reinforces all kinds of morality onto and into students--but does so sub silentio with the pretense of not being a morality at all. That ostensible moral libertarianism in law--itself a legal moralism--infuses much of the law, including, very much, the doctrines of the First Amendment (but many others too), and much of the instruction in law school. It's time we stopped talking about moral neutrality--in law and in law school--and started talking about the way the law, and the way that law schools, do, and should (two different sets of discussion), privilege certain moral positions and downgrade others.
But that will require a good deal more than forcing clinic and other offerings--most of which do, in fact, reflect very specific ideological commitments and which are, as John McGinnis has put it, "enterprises of political action"--down the throats of students pro bono publico. It will require, first, turning a highly critical eye on the existing frameworks, and, second, forging a shared sense of pro bono publico from the fragments one can see adumbrated in the disagreement between Rob and his interlocutor.
Monday, June 5, 2017
DePaul law prof Julie Lawton has posted a new article, “Teaching Social Justice in Law Schools: Whose Morality is It?” Professor Lawton argues that “requiring law student participation in pro bono and legal clinics serving the indigent, as a condition of their graduation, is an improper imposition of my personal social justice morality upon my students.” She explains:
When there are a limited number of legal clinics at each law school and the majority of those legal clinics are serving low to moderate-income clients, mandating legal clinics is akin to mandating participation in social justice issues, similar to mandatory pro bono service. This mandate of social justice service suggests an unwarranted imposition on a student’s moral independence.
An imposition on “a student’s moral independence?” I always assumed that one core purpose of a profession is to identify and maintain prudent impositions on its members’ “moral independence.” If independence from such fundamental (I thought) moral claims as serving the poor is a virtue to be cultivated among our students, should we also avoid requiring them to participate in any exercise that may risk inculcating within them a respect for the rule of law or commitment to personal integrity? And should we be urging the ABA to pull back from its insistence on imposing particular views on the wisdom of confidentiality, competence, diligence, and candor?
Should law faculty proceed carefully when teaching contested moral and political issues to make sure that students are exposed to the best arguments on all sides? Absolutely. That's a worthy pedagogical objective to ensure that we're training critical thinkers who are effective advocates. It's not about equipping our students for lives of "moral independence," whatever that means. Navigating our biases effectively as teachers does not mean that a law school needs to avoid staking out a position on the basic moral norms that contribute to the animating vision for a particular school or the profession as a whole. We should be explicit and deliberate in discerning and conveying those basic moral norms. This is (I hope) obvious for those of us who work at Catholic law schools, but the conversation about moral norms shouldn't be absent from non-religious law schools either. Such conversations are a big part of what it means to be a profession.
A helpful reminder from Prof. Thomas Kidd about the context of the Pierce v. Society of Sisters case and, let's be candid, about the roots of too much of today's opposition to school choice. My only quibble might be with the headline, given that the Klan had no problem with "religious" public schools (i.e., the "public" schools of the day were not, in today's terms, "secular").
Thursday, June 1, 2017
This week, the Wall Street Journal published an op-ed by Bret Weinstein, a biology professor at Evergreen State College. Weinstein tells the now familiar tale of irascible student protests (responding to his pleas for reasoned debate about race on campus). This portion of his piece is especially noteworthy as a general critique of the structure of the modern university and what it has wrought for today's students (emphasis mine):
[T]he protests resulted from a tension that has existed throughout the entire American academy for decades: The button-down empirical and deductive fields, including all the hard sciences, have lived side by side with “critical theory,” postmodernism and its perception-based relatives. Since the creation in 1960s and ’70s of novel, justice-oriented fields, these incompatible worldviews have repelled one another. The faculty from these opposing perspectives, like blue and red voters, rarely mix in any context where reality might have to be discussed. For decades, the uneasy separation held, with the factions enduring an unhappy marriage for the good of the (college) kids.
One could get discouraged as this news becomes the new normal at college and universities around the nation. So, in these final days of Easter, I wanted to pass along reasons for hope: new—and old—voices, offering not critique of the current climate so much as alternatives ripe for revitalization. (I well acknowledge that I spend much of my day alone in my home study, entirely free of university shenanigans or the pressures that come with tenure-seeking, etc. And, happily, the latter part of my days is spent with my children who are blessed to be receiving a first-rate classical education at St. Benedict's outside of Boston - where we were recently encouraged by George Weigel's remarks on these topics at our annual auction.)
In The Idea of the University, Cardinal Newman beautifully articulates the very purpose of such an institution, implicitly devastating the silo-ing of disciplines about which Weinstein insightfully casts much of the blame for today's woes:
It is a great point then to enlarge the range of studies which a University professes, even for the sake of the students; and, though they cannot pursue every subject which is open to them, they will be the gainers by living among those and under those who represent the whole circle. This I conceive to be the advantage of a seat of universal learning, considered as a place of education. An assemblage of learned men, zealous for their own sciences, and rivals of each other, are brought, by familiar intercourse and for the sake of intellectual peace, to adjust together the claims and relations of their respective subjects of investigation. They learn to respect, to consult, to aid each other. Thus is created a pure and clear atmosphere of thought, which the student also breathes, though in his own case he only pursues a few sciences out of the multitude. He profits by an intellectual tradition, which is independent of particular teachers, which guides him in his choice of subjects, and duly interprets for him those which he chooses. He apprehends the great outlines of knowledge, the principles on which it rests, the scale of its parts, its lights and its shades, its great points and its little, as he otherwise cannot apprehend them. Hence it is that his education is called "Liberal." A habit of mind is formed which lasts through life, of which the attributes are, freedom, equitableness, calmness, moderation, and wisdom; or what in a former Discourse I have ventured to call a philosophical habit. This then I would assign as the special fruit of the education furnished at a University, as contrasted with other places of teaching or modes of teaching. This is the main purpose of a University in its treatment of its students.
In recent years, Bishop Barron has explored with characteristic intelligence and aplomb just how the intelligibility that grounds all reality makes the search for knowledge and truth even possible, across all disciplines. I'd especially recommend this 2011 lecture at the University of St. Michaels, but all of his lectures are top-shelf.
The Lumen Christi Institute has recently made available online a lecture at the University of Chicago by Professor Jared Ortiz. It is an admirably clear exploration of classical liberal education, especially as he compares the traditional approach with the more recent Great Books revival. Ortiz recounts his own transformation at Chicago under the tutelage of Leon and Amy Kass (who “trained his loves”), as well as Paul Griffiths. Ortiz, like Bishop Barron, points to Christ the Logos as the principal of all intelligibility, and thus suggests, in conclusion, that the liturgy ought to properly be at the 'heart' of the 'core' curriculum.
Finally, I'm about half way through Senator Ben Sasse's book, The Vanishing American Adult. It's excellent - but what is especially encouraging to me is that this learned statesman, en route (one hopes) to a presidential bid in coming years, would pen a book devoted entirely to the rearing and education of young children. A topic once considered essential by the most influential thinkers in history (Plato, Aristotle, and Rousseau come immediately to mind) was strangely downgraded more recently. Sasse, a Yale-trained historian, well understands that the intellectual and moral formation of the young is the most crucial work of a civilization that hopes to persist (and thrive!). Here’s a taste of the book in an interview with Bill Kristol. But read the book – and be heartened that a man concerned about these important matters sits in the upper chamber of Congress. I am.
Tuesday, May 30, 2017
If you are in the DC area tomorrow evening, you might be interested in attending a Conversation with Cardinal Peter Turkson, the head of the new Vatican Dicastery for Integral Human Development, on "Vatican Perspectives on Care for Creation, Economic Injustice, the Refugee Crisis, and Peace." Details and registration are here. John Carr, Director of Georgetown University's Initiative on Catholic Social Thought and Public Life, has organized this public event in connection with a convening of US Academic Centers on Catholic Social Thought. Should be a very interesting couple of days in DC!
The typical law student has a tendency to think he or she has performed worse on exams perceived as harder and better on exams perceived as easier. But often the opposite is the case. Thinking that one may have done poorly because the examination seemed so hard is sometimes a sign that one has performed well.
One of my law school professors (I think it was Dan Meltzer, but I'm not sure) gave an explanation of this phenomenon that made sense to me. Exams seem hard when the exam-taker has perceived the hard issues raised by the exam. Exams that seem easy may only seem that way because the exam-taker has missed the hard issues entirely.
I'm reminded of this phenomenon in reading the Fourth Circuit's en banc immigration decision. The decision seems legally wrong for reasons set forth in Judge Niemeyer's dissenting opinion, the government's briefs, and online writings by Josh Blackman, Ilya Shapiro, Marc DeGirolami, and others. Go find and read those if you are interested in the technical legal analysis. But don't forget that good legal analysis often is technical.
Most troubling to me, though, is the seeming confidence of the majority opinion that comes through in the language it uses as it deploys modern Establishment Clause doctrine. The reason that is troubling is traceable to one of the best law review articles I've read.
In *A Political History of the Establishment Clause,* 100 Mich. L. Rev. 279 (2001), John Jeffries and Jim Ryan offer precisely what their title suggests. Go ahead and read it. It will probably make you miserable if you really care about the law part of constitutional law. But it will also make you wiser.
If you're an anti-anti-Catholic, you might also--and appropriately--be more worried about judicial decisions finding Establishment Clause violations.
Thursday, May 25, 2017
One of the greatest privileges of serving on the Board of the National Catholic Partnership on Disability is learning from my talented and committed fellow board members. Two of them (Michael J. Boyle, Director, Andrew M. Greeley Center for Catholic Education, School of Education, Loyola University Chicago, and Pamela R. Bernards, Director for Professional Development, National Catholic Educational Association) have just published a fantastic white paper entitled One Spirit, One Body: An Agenda for Serving Students with Disabilities in Catholic Schools, available here.
Some interesting findings:
Despite the fact that private schools are not required to legally comply with the least restrictive environment mandates of the Individual with Disabilities Education Improvement Act (IDEIA), there is evidence to show that Catholic schools are responding to the Church’s challenge to serve students with disabilities.
The principle findings of the USCCB (2002) study, Catholic School Children with Disabilities, found that nationally, 7 percent of children enrolled in Catholic schools are children with disabilities, compared to 11.4 percent enrolled in public schools. When comparing disability types, Catholic schools enroll a greater percentage of children diagnosed with hearing impairment or deafness, developmental delay, speech/language, uncorrected vision impairment or blindness, traumatic brain injury, and other health impairments than public schools (USCCB, 2002: p. 11). Huppe (2010) notes that other disability categories such as mental retardation, autism, and emotional disorders have a “significantly lower representation in Catholic schools than in public schools.”
Boyle and Bernards offer great suggestions for dealing with some of the challenges of including students with disabilities in Catholic schools. They acknowledge the tension felt by many Catholic schools between wanting to serve students with disabilities and the financial burdens of doing so, but remind us that:
. . .the United States Catholic Bishops have stated:
Costs must never be the controlling consideration limiting the welcome offered to those among us with disabilities, since provision of access to religious functions is a pastoral duty (USCCB, 1998, p.2).
“The focus on the inequities in funding between public and private schools often provides an opportunity to justify the inability to provide services for children with special needs” (Moreau, Weaver, R. Davis, S. Landers M. 2006). However, the failure to serve students with disabilities in Catholic schools may actually be “due to an underlying belief on the part of many Catholic educators that children with special needs would be better served elsewhere” (Moreau et al., 2006). In many instances, it has been an assumption that the responsibility for the education of students with disabilities lies in the public school domain, whereas Catholic education encompasses so much more than just academic preparation. Catholic education offers spiritual formation, a faith community and a sense of belonging to the larger church which cannot be replicated within the public school setting. Certainly, the Bishops have noted the value in the interaction between those individuals with disabilities and those without. In such an interchange, “it is often the person with a disability who gives the gift of most value” (USCCB, 1998). Educating individuals with disabilities within the Catholic school setting helps those without disabilities to see the real world reflected in their school, creates a sense of normalization that disability is a part of life and helps to minimize the stigma of disability.
Wednesday, May 24, 2017
Call for Papers: "Building Institutions for the Common Good: The Purpose and Practice of Business in an Inclusive Economy"
My colleagues at the Ryan Institute have put out a call for papers for a conference next summer that is sure to be of interest to many MOJ readers.
The Tenth International Conference on
The Sixth Colloquium on Christian Humanism in Business and Society
"Building Institutions for the Common Good:
The Purpose and Practice of Business in an Inclusive Economy"
University of St. Thomas
St. Paul - Minneapolis, Minnesota
June 21-23, 2018
The common good is a prominent principle and one of the pillars of the Catholic social tradition. Its origins in Judaism and Hellenistic philosophy were taken up by the early Christian community and reinforced by Christ's commandment of charity, forgiveness, and service. As suggested by its ancient roots, the principle is not exclusive to Christian faith; other religions and philosophical traditions uphold it too. Still, sharing an appreciation for the concept does not remove the important work about the meaning of the common good and its operational and institutional significance in business.
Scholarly reflections on the common good vary in correspondence with the whole range of existing philosophical, economic, political, and social positions. This is certainly true among leading voices in the development of Catholic social thought -- Jacques Maritain, Neo-Thomism, civil economy, personalism, and Catholic liberalism, among others. What has not been as developed is a tradition of thought that engages the common good with the purpose and practice of business. This conference is set out to make a contribution in this area.
As business and its impact have moved into virtually every country and culture on the planet, so have questions about its role in regard to human well-being and to what society holds in common. This makes the common good a subject for reflection in the education of all future business professionals. There may be as well a particular opportunity and benefit for reflecting on the common good in the context of business education in Catholic universities. Uniquely prepared to address the idea of the common good from a theoretical perspective, Catholic business education is also uniquely positioned to reflect on it as a moral principle for leaders and as an aspirational principle for a business mission.
This conference on "Building Institutions for the Common Good: The Purpose and Practice of Business in an Inclusive Economy" welcomes participants from multiple disciplines and perspectives ready to engage in a constructive dialogue on the common good and how a growing number of people can participate in the market economy and finance in an equitable, stable, and sustainable way. We take the common good within the Catholic social tradition as our starting point in this discussion.
We are looking for papers in three tracks: broad, organizational and theoretical treatments of the common good; the common good in relation to individual disciplines (marketing, personnel management, strategy, etc.); and curriculum design, materials, and pedagogical approaches for addressing the common good in a business context.
Track One - Exploring the Common Good, Its Meaning and Its Capacity to Inspire and Sustain Ethical Institutions
It is relatively easy to criticize what does not work and even necessary to do so. The much more challenging task is to build a humane and flourishing society. Catholic social teaching has examined property, free and ethical markets, businesses, the rule of law, and the legal protection of workers as some of the institutions that are essential in creating institutions that work. However, the best institutions falter if they are undercut by a lack of individual conscience and social virtue. Thus, Catholic social teaching also repeats demands for virtuosity: structures and institutions alone are not capable of solving the problems that beset society
Track Two - Exploring the Common Good and Its Relevance for Specific Fields of Management
Principles that are discussed on an abstract level can remain bloodless and unsubstantial. Not infrequently the abstract principles, like the common good, become clear by application in concrete circumstances. We welcome papers that explore the meaning and relevance of the common good in specific fields of management and business, especially (but not exclusively) if they discuss the institutional dimension in fields such as the following:
Track Three - Providing Curricular Materials, Processes, and Ideas that Reflect the Significance and Practical Wisdom of Business and Leadership Reflection on the Common Good
In the area of curriculum development, we are specifically looking for syllabi, background notes, and teaching notes that engage the Catholic social tradition and the disciplines of business and liberal education. For examples, please see
I argue that appeals to conscience do not constitute reasons for granting healthcare professionals exemptions from providing services they consider immoral (e.g. abortion). My argument is based on a comparison between a type of objection that many people think should be granted, i.e. to abortion, and one that most people think should not be granted, i.e. to antibiotics. I argue that there is no principled reason in favour of conscientious objection qua conscientious that allows to treat these two cases differently. Therefore, I conclude that there is no principled reason for granting conscientious objection qua conscientious in healthcare. What matters for the purpose of justifying exemptions is not whether an objection is ‘conscientious’, but whether it is based on the principles and values informing the profession. I provide examples of acceptable forms of objection in healthcare.
This is, I think, the way things are going. Those who acquire the power to (re)define the "principles and values informing the profession" will, increasingly, do so in a way that renders un-"acceptable" Christian commitments and practices and excludes those with such commitments from the professions (including law).
If you haven't read Legutko, I suggest you do.