Friday, October 20, 2017
Arizona State University has just launched the School of Civic and Economic Thought and Leadership under the direction of the wise and learned Paul Carresse, former professor of political science at the Air Force Academy and author, most recently, of Democracy in Moderation: Montesquieu, Tocqueville, and Sustainable Liberalism. The school aims to steep its students in the study of America's founding principles. Check out these courses and this upcoming speaker series.
The school's moto: "Inspiring Leadership and and Statesmanship for the Common Good." The timing of this new initiative is impeccable. May it attract many students and bear much fruit.
From "The Quest for Community" 66 (1953):
The fantastic romanticism that now surrounds courtship and marriage in our culture is drawn in part no doubt from larger contexts of romanticism in modern history and is efficiently supported by the discovery of modern retail business that the mass-advertised fact of romance is good for sales. But the lushness of such advertising obviously depends on a previously fertilized soil, and this soil may be seen in large part as the consequence of changes in the relation of the family to the other aspects of the social order. The diminution in the functional significance of the family has been attended by efforts to compensate in the affectional realm of intensified romance. Probably no other age in history has so completely identified (confused, some might say) marriage and romance as has our own. The claim that cultivation of affection is the one remaining serious function of the family is ironically supported by the stupefying amount of effort put into the calculated cultivation of romance, both direct and vicarious. Whether this has made contemporary marriage a more affectionate and devoted relationship is a controversy we need not enter here.
Thursday, October 19, 2017
Here's a good report by my Notre Dame colleague, Margot Cleveland, on the welcome rejection by Gov. Brown of AB-569, or "The Reproductive Health Non-Discrimination Act." The Act would have "made it illegal for a California employer to discipline or fire employees for 'their reproductive health decisions, including, but not limited to, the timing thereof, or the use of any drug, device, or medical service'" -- and, troublingly, it would have recognized only a very narrow (i.e., more narrow than the scope of the ministerial exception) religious exemption.
Tuesday, October 17, 2017
My friend and longtime collaborator, Prof. Nelson Tebbe, has written a much-noticed book, Religious Freedom in an Egalitarian Age. (Congrats!) I read today two respectful, admiring, but critical reviews -- one by Paul Horwitz and the other by Nathan Chapman - both are recommended. (To be clear: There are other reviews out there too -- read them as well!) Here's a bit from Paul:
. . . Despite its focus on reasoned elaboration, a certain magical thinking drives this book, with its relentless mixture of is and ought. “We should insist both that current conflicts between religious freedom and equality law are intricate and that they are not intractable,” Tebbe writes. “Justified solutions can and must be found.” Readers may rightly worry about words like “should” and “must.” That we face urgent problems is no guarantee that we can find a way to “diminish or dissolve the apparent tension between peace and justice” in this area. But Tebbe wants lasting solutions; and though he insists that his book “is not a recipe for the end of disagreement,” he advocates a method, and a set of outcomes, that will “shape civil rights law and religious freedom guarantees into the future.” Like the warring camps at our law and religion roundtable, he wants to set the terms of engagement and treat certain “settlements” as final. The losers should not only “understand why their arguments have been rejected,” but accept defeat with good cheer.
That seems unlikely . . .
And, from Nathan:
. . . Receiving and giving reasons for moral judgment calls for openness, hard work, smarts, and, above all, good faith. It entails living within a moral community, or overlapping moral communities, that give life to moral habits and render moral reasoning coherent. Tebbe rightly resists reducing moral reasoning to nothing more than an act of individual will. Unfortunately, as discussed more fully below, the way he applies social coherence to mediate the conflict between religious liberty and equality seems to verify, rather than to challenge, the skeptics’ view that religious liberty jurisprudence is inevitably personal value preferences all the way down.
The book is best understood as an application of one version of Rawlsianism to an array of legal questions arising from a clash between Progressivism and the view that Progressive norms should not always override religious liberty. The reader will encounter a helpful tour through a variety of challenging legal cases and a number of novel proposals for solving vexing doctrinal puzzles. . . .
Prof. Jeremy Waldron has posted a paper, "The Dignity of Old Age," at SSRN. Get it here. Here's the abstract:
It is important to complement our general account of human dignity with accounts of the specific dignity of particular phases of human life. In this paper I address the dignity of old age--the aspects of elderly life that command our respect. An account of this kind is particularly important for a balanced view of the assisted suicide debate. For even if we favor a right to die, we need also to be able to make sense of the dignity of a life lived to the end without a chosen procedure to bring it to an end. The account given in this paper addresses the approach of death and, for the purposes of dignitarians analysis, ranges around it other aspects of old age, such as wisdom, authority, debilitation, suffering, and issues about self-presentation and personal autonomy.
This event should be interesting to MOJ readers, given the extent of Murray's influence on many of us:
On August 16, 1967, John Courtney Murray—Jesuit priest, theologian, and public intellectual—passed away less than a month before he would have turned 63. For the final three decades of his life, he taught at Woodstock College and edited the Jesuit journal Theological Studies. Celebrated on Time magazine’s cover (December 12, 1960) for contributions to American domestic and foreign policy debates and for sympathetic, if critical, understanding of religion in American public life, he later helped compose Vatican II’s “Declaration on Religious Liberty” (Dignitatis Humanae).
From Georgetown’s introductory Theology course, “The Problem of God”—named after Murray’s 1962 Yale Lectures—to the mission of the Berkley Center for Religion, Peace, and World Affairs, Murray’s influence can be seen throughout the university’s programming. This year, Georgetown celebrates John Courtney Murray’s legacy in the fiftieth anniversary year of his passing with a day-long event examining Ignatian practice and Catholic and Jesuit identity.
This event is co-sponsored by the Berkley Center for Religion, Peace, and World Affairs and the Office of the President.
Tuesday, October 10, 2017
That's the title of a new paper by Rob Kar, Professor of Law and Philosophy at the University of Illinois. The paper is Rob's contribution to a volume edited by Robin Fretwell Wilson: The Contested Place of Religion in Family Life (Cambridge University Press 2018). Rob is eager for critical feedback on the paper: firstname.lastname@example.org. The paper is available here.
Recent developments toward the legalization of same-sex marriage in the West are often viewed as a triumph for secularism in a religious-secular culture war. That assumption foments ongoing division and hostility between some committed religious observers and some LGBT persons and their supporters.
The assumption is also wrong. The recent legalization of same-sex marriage in the West has underappreciated religious and spiritual causes and potential. It is the partial result of the historical emergence of a love-based social institution of marriage in the West. These developments, which began in the 17th to 18th centuries, further allowed for the emergence of what this article calls "transformational marriage". Given the development of transformational marriage, there are now weighty reasons -- both religious and secular -- to support these marriages among anyone who chooses to enter into them. Debates over same-sex marriage should be removed from the contemporary religious-secular culture wars.
To show this, this chapter offers a blend of religious, scriptural, moral, secular and psychological arguments, which provide a basis for previously opposing camps to reach an "overlapping consensus" on the value of transformative marriage for all people. An overlapping consensus is the polar opposite of a religious-secular culture war: it is a consensus that can be affirmed, for different reasons, by the opposing religious, philosophical and moral doctrines likely to thrive over generations in a more or less just constitutional democracy. Hence, there are good reasons for people of good faith on all sides of this conflict to support the development of this overlapping consensus and remove the issue of same-sex marriage from the culture wars.
A new paper I've just posted to SSRN may be of interest to MOJ readers. The paper--my contribution to a volume edited by William Eskridge and Robin Fretwell Wilson, Religious Freedom, LGBT Rights, and the Prospects for Common Ground (Cambridge University Press 2018)--is titled:
Conscience v. Access and the Morality of Human Rights,
With Particular Reference to Same-Sex Marriage
The paper is available here. The abstract:
Little remains to be said about “conscience v. access” that has not already been said — and often well said. Or so it seems to me. (Not that a consensus has been achieved. Far from it.) But “little” is not “nothing”. My aim in this chapter: to bring the morality of human rights to bear, and to do so with particular reference to conscience-based opposition to same-sex marriage. In particular, my aim is to bring to bear two rights that are fundamental parts of the morality of human rights: the human right to religious and moral freedom and the human right to moral equality. On "the morality of human rights", see Perry, Michael J., A Global Political Morality: Human Rights, Democracy, and Constitutionalism (April 25, 2017) available at: http://ssrn.com/abstract=2956843.
The intuition of many persons — an intuition I share — is that the conscience-based claim for an exemption from an antidiscrimination law pressed by the florist (baker, photographer, etc.) who is morally opposed to same-sex marriage presents us with a more complex and difficult issue than the conscience-based claim for an exemption pressed by the florist who is morally opposed to interracial marriage. My argument in this chapter serves to provide a rational vindication of that intuition; it serves to explain why as a matter of principle — specifically, as a matter of the human right to moral equality — the two conscience-based claims merit different responses, even if it is not unreasonable for lawmakers, in legislating, or for judges, in adjudicating, to reach the conclusion that, all things considered, the former claim too should be rejected.
OK, there may not be a lot of MOJ readers in the greater Wausau area ... But if you are, I'll be giving the annual Veninga Lecture on Religion and Society at the University of Wisconsin campus there, sponsored by the Wisconsin Institute for Public Policy and Service. Time is this Thursday at 7 pm. More details at those links. Title: "Religious Freedom for All in a Polarized Age."
Monday, October 9, 2017
Here's another new paper of mine, On the Uses of anti-Christian Identity Politics. Abstract follows:
This short essay, written for a conference on “Faith, Sexuality, and the Meaning of Freedom” held at Yale Law School in January 2017, briefly explores the emerging phenomenon of anti-Christian identity politics. The essay focuses on one particular legal source of it: a recondite provision of the so-called Treaty of Tripoli of 1796, which states that “the government of the United States is not, in any sense, founded on the Christian religion.” The uses to which the phrase has been put, it turns out, are more important than its confused and obscure historical meaning. In evaluating anti-Christian identity politics in only some of these uses, the essay considers the recent claim by Professor Mark Lilla that contemporary Americans — and American liberals in particular — ought to abandon “the politics of identity” in favor of a politics of shared citizenship.
Lilla is right that identity politics as practiced today have further corroded the commonalities that remain among Americans. Identity politics also render compromise on various culture-war issues more difficult: any policy or legal victory for the opposition, however small, assumes additional symbolic power and must therefore be resisted all the more fiercely. Yet the pathologies of identity politics are only symptoms of a more potent sickness in American political and cultural life. Americans, as citizens, share less and less. They disagree in deepening ways about the nature of the political and moral good, about justice, and about what sort of people they are and aspire to be. In short, identity politics are not the cause of, but a response to, political and cultural fragmentation. And anti-Christian identity politics, like Christian identity politics, represent one strain of that response — one ostensible point of rendezvous for a nation whose people are increasingly disaffected with and alienated from one another.
Here's a new paper of mine, The Two Separations. And here's the abstract:
There is nothing self-evidently attractive about separation — whether of church and state or anything else — as a model for individual or collective life. Pursuing separation is not like pursuing knowledge or friendship — ends that are intrinsically good. Separation must be justified by some contingent reason. Though the Constitution speaks of the free exercise of “religion” and “religion’s” non-establishment, much of the confusion about separation as an American civic ideal results from a failure to focus on the specifically historical and contingent justifications for it. These justifications concern not “religion” in general or in the abstract but Christianity in specific — Christianity being, as a historical and cultural matter, the central religious tradition of the United States.
These historical justifications have taken two cardinal forms. The first concerns the politico-theological benefits that are believed to devolve onto Christian churches, or onto Christian believers, from division from the state, and the general social and political advantages derived therefrom. The second involves the secular benefits to the liberal democratic state of unbreachable barriers against the civic and cultural influence of Christianity. The first justification is more ancient, but the second is more powerful today. The first is oriented positively, and the second negatively, toward the cultural and political value of Christianity in the United States. The first sees Christianity as precious. The second sees it as irrelevant or even obnoxious.
This chapter distinguishes and explores the two separations — separation as a specifically Christian piece of political theology, in large part for the benefit of a Christian civil society; and separation as a specifically secular position for the benefit of a liberal society that wishes to divest from and repudiate Christianity. It then describes the allure of equality and nondiscrimination as church-state ideals, their ascendancy in late twentieth century constitutional law, and the sense in which they are believed to have supplanted separation.
But neither equality nor nondiscrimination delivers what it promises: a valueless perspective on the social and political worth of Christianity. In fact, their perspective is decidedly negative. The chapter explains this claim by comparing the use of these principles in the contexts of race and sex discrimination, where the overriding assumption is that race and sex are fundamentally irrelevant considerations, and obnoxious and illegitimate bases on which to make laws and to order society. Transposed to the context of religion — and, as this chapter argues, the transposition in reality concerns Christianity specifically — a similar assumption holds: that Christianity is fundamentally an irrelevant, or even an obnoxious, and illegitimate, influence in the making of laws or the structuring of the cultural and political realms. Indeed, in a society in which Christianity has had such overwhelming predominance, insisting on equality is tantamount to squelching it. This view is not neutral as to the value of Christianity in contemporary American politics and society. It is nothing less than an expression of the second separation.
Friday, October 6, 2017
Several months after the President's religious-freedom executive order (which, many observed, didn't appear to actually do very much), we see today some important and meaningful action from the Administration on the religious-freedom front. The wheels are now turning to expand the religious exemption from the HHS contraception-coverage mandate and the Attorney General has issued memoranda and guidance on how the Department of Justice will deal with religious-freedom matters that are quite striking in their full-throated endorsement of a robust understanding of our "first freedom." The Attorney General stated clearly, in keeping with longstanding American tradition, that religious freedom is a fundamental human right and not merely a policy preference.
Harvard Law Students for Life hosted a standing room only panel yesterday at noon, featuring Mary Ann Glendon, Robbie George, and Jacqueline Rivers. Their common topic: "Why We Are Pro-Life: Dignity, Equality, Human Rights."
Mary Ann Glendon was up first, leaning on her well-known gifts as a raconteur to describe the various ways in which growing up in a small New England town influenced her views. (Her town was "a town much like those described a century earlier by Tocqueville...a town of 5000, the ideal size of a polis, according to Aristotle.")
First, small town life allowed a young person to experience and appreciate the ebbs and flows of human life -- births, deaths, disability, dependency--and allowed one to recognize how the decisions that individuals and families make in such circumstances have a cumulative impact over time. Choices matter and have long-ranging effects. Second, as Tocqueville observed, nearly everyone in a vibrant small town is engaged in some sort of civic activity. For her mother, that meant conservation, for her father, the Democratic Party (which stood for the working man, lending a hand to one another). When she arrived at college, those habits of civic engagement turned to the civil rights movement. Once abortion rights came around as a "cause" -- the 1970s -- Mary Ann assumed that the Democratic Party would be the obvious home for the pro-life movement, as yet the next phase of "expanding the beloved community," as MLK had inspired so many a decade before. It came as a frightful surprise then to find the Democratic Party abandon this basic principle. She concluded: "I began to worry that we were drifting toward a philosophy that I'd thought had been put to rest at the end of WWII: that some lives are more worthy than others, that some lives are not worthy at all."
Jacqueline Rivers spoke next, beginning with a firm statement that her pro-life views are rooted in her Christian faith: human life is sacred, science indicates that human life begins at conception, and all lives--regardless of race, gender, social condition, stage of development--are created in the image of God. As an African American woman, she said that she had a special concern for abortion's impact upon the African American community (black women make up 14% of the female population but have 40% of the abortions). She spoke at good length about the intersection of poverty, abortion, out-of-wedlock childbearing, and the retreat from marriage. Her work seeks to challenge the ecumenical black church - the most religious ethnic group in the country - to create a movement that is pro-poor, pro-life, pro-family. The Seymour Institute -- and her courageous work on the streets of Boston for decades now -- does just that. She testified last week against the assisted suicide bill that is (yet again) before the MA State House. I wiill post her powerful testimony in the days to come. Here is a re-up of my reporting on another excellent panel contribution - on religious liberty.
Robbie concluded the panel with a "biographical, biological, and philosophical" account of his views (all that in 15 minutes). The last two are familiar to MOJers, but the biographical aspect was new to me. Robbie said the single greatest influence on his views was his mother ("who is still alive and still a force of nature") who taught unequivocally that every person was the bearer of profound dignity. These were not mere words: she lived this creed profoundly and sacrificially, actively reaching out and caring for women in difficult situations, especially those who lived with abusive husbands or boyfriends. Through his mother's inspiration, he became active in the nascent pro-life movement when he was 13 (in the years before Roe came down), and through the movement met university students who were reasoning through the issue philosophically. Thus, one of our time's most gifted philosophers was born.
All three sought to encourage members of the audience to decouple the pro-life cause from its current association with the Republican Party. This is merely a historical happenstance, and a dramatic change from prior times (when so many of the most well-known Democrats were pro-life, namely Jesse Jackson, Bill Clinton, Al Gore, Ted Kennedy, and some of the most libertarian Republicans were pro-choice).
Thursday, October 5, 2017
In a recent post (here), Rick Garnett links to an essay he just published in the Notre Dame Magazine entitled “Life Affirming?” (here) in which he reflects on the status of the various life issues in the current legal, political, and cultural climate. I highly recommend that MOJ readers turn to Rick’s essay and read it in its entirety. Taking as his point of departure V.P. Mike Pence’s provocative claim made in January at the March for Life that “Life is winning again in America,” Rick asks the following question: “What would it mean, really, and what would it look like, for life to be — now, again or ever — ‘winning,’ in U.S. law, policy, culture and hearts?”
What would "winning" look like? In addition to what Rick says, let me offer the following (with which, I am certain, Rick is in full agreement).
With respect to abortion, we will know that we are winning not just when the law is changed to make abortion illegal (a point Rick makes clear), but when abortion is regarded as unthinkable. We will have "won" when the mention of abortion inspires the same kind of instinctual moral revulsion that slavery does, or the "Final Solution" does. We will have won when our moral reflex is such that we respond automatically "No! How could you even think such a thing!" -- where such a reflex manifests not the absence of moral thought, but an accumulated moral wisdom ingrained in the culture.
The same could be said of "winning" on all of the life issues -- when the thought of killing the elderly and disabled or abandoning the weak inspires a profound sense of shame in anyone who would entertain the thought even for a moment. We will be winning when the thought that first comes to mind isn't "How useful is this person?" or “What can I gain from them?” but "How can they best be cared for?" We will have won when those with Down Syndrome are not viewed as a statistic of morbidity and a problem to be eliminated, but as a persons to be cherished.
October 5, 2017 | Permalink
Wednesday, October 4, 2017
Scalia Speaks: Reflections on Law, Faith, and Life Well Lived was released from Crown Forum today. The late justice's son, Christopher Scalia, co-edits the volume, alongside former Scalia clerk and EPPC president (and my boss), Ed Whelan.
It is a remarkably funny collection of speeches, culled by the editors for a lay audience. Ever intelligent and witty, Justice Scalia's levity enchants almost every page (granted, I haven't yet read the chapter on the Holocaust). The speech "Games and Sports" begins: "I have been asked many, many times to what do I attribute my well-known athletic prowess." His response unfolds as an amusing narrative of the neighborhood pastimes of his youth, from marbles to roller skating to Ringalevio (about the last, he writes: "I don't know how to spell it; I actually don't think it has ever been written down.") In his deeply moving introduction to the book, Christopher quips that his father wasn't all that sure how to pronounce his own name either...
Justice Ginsburg writes the foreword to the book, sharing her gratitude for their mutual friendship over the decades they served on the bench together. Yesterday, CBS News released an interview of Justice Ginsburg together with the late justice's widow, Maureen Scalia. The two recounted how important the justices' friendship was, as puzzling as it may have seemed to the wider world. They lamented the loss of the time when "across the aisle" friendships were more common. In a tribute to Ginsburg included in the book, Justice Scalia refers to the working relationship they developed as a "mutual improvement society," admiring Ginsburg's propensity to want to improve rather than correct. ('Not, 'this is wrong, Nino,' but 'the point would be even stronger if.'")
Both justices are celebrated as icons by opposing camps in the legal world today. The sharp vision of each seemed to have been honed by the other. Would that younger generations of Americans would learn the lessons of this remarkable friendship.
All Catholic lawyers will want to read Scalia Speaks for its substance alone. Chapters include "Catholic Higher Education; Church and State; Faith and Judging; Nature Law; and Judges as Mullahs." But all of us would benefit from spending more time with this great man, whose good will - and great humor - ingratiated him to one of his greatest adversaries on the Court, and to untold audiences over the course of his lifetime.
Tuesday, October 3, 2017
I was pleased to be asked to write a piece for Notre Dame Magazine on my sense of the "life issues" in our current moment. It wanders around a bit, and covers a lot of ground, but here it is. A bit:
The proposal, the claim, and the truth that grounds the comprehensive and integrated pro-life position is that every person matters and no one matters more than anyone else. This was the message of Pope Francis’ Installation Mass homily, and it is at the heart of the Catholic Church’s social and moral teaching. A human being is a human person, and to be a human person is to have great, inestimable worth. This is true when we are very small and vulnerable, when we are old and sick, when our life seems all potential and when it seems at its very end, when we are strong, beautiful and creative, and when we are weak, ugly and venal. Our ultimate, transcendent worth does not depend on what we accomplish, on what we are capable of doing, on what we can produce or contribute, on how much we are wanted, or on how much we cost. No one is worth less and no one is worthless.
Politico’s Timothy Alberta has called economist and think-tanker Arthur Brooks “the most interesting man in Washington.” At a recent forum at Harvard’s Kennedy School, Brooks was reflecting on the unedifying state of public culture and conversation in America, and he proposed that the problem with our politics is not disagreement, division, polarization or even anger. In a free society, strong disagreements about at least some things that matter are, this side of Heaven, inevitable. For Brooks, what is striking is not simply the “Big Sort” into red and blue enclaves or our increasingly tribal divisions that infect everything down to debates about the regulation of large sugary sodas. Our real problem, he suggested, is “contempt,” which he defined as the “conviction of the worthlessness of another human being.” Who can deny that “contempt” is pervasive and ubiquitous? Indeed, in many contexts it seems to be the currency of our discourse. Anger can be resolved, but contempt, Brooks warned, leads to permanent estrangement.
Brooks is on to something. During the campaign — recall the Access Hollywood tape or his imitation of Serge Kovaleski — and since his election, President Trump has not hesitated to mock, insult and degrade — to express “contempt.” On “the other side,” one of the turning points in the election was Clinton’s expression of dismissive disdain for those in the “basket of deplorables” to which she consigned so many of those who resisted the appeal of her candidacy. No one could spend much time at the rallies or following the Twitter feeds of either of the two candidates and their surrogates, fans and followers and not be struck by the vicious, deep contempt with which the two camps regarded each other. It was contempt, not “heritage” or “history,” that inspired and informed the marchers’ chants in Charlottesville.
Now, Brooks was not speaking directly to abortion or to the “life issues.” Still, his assessment is helpful. The pro-life position is not merely a package of negative prohibitions but is a thoroughgoing response to the call and challenge to solidarity and mercy. To stand in solidarity — in community — with other persons is to embrace these other persons’ dignity, value, worth and destiny, and to truly — despite differences in ability, strength, beauty, talent, advantages and prospects — regard and treat them as equally bearing the image of God. What could be more contrary to solidarity than, as Brooks says, the estrangement that contempt produces? “Life” isn’t really “winning” — it cannot, really — if the political community and conversation are saturated with contempt.
Pope Francis has forcefully condemned abortion as a symptom of and contributor to what he calls our “throwaway culture.” It is an arresting and illuminating image, and it resonates with Brooks’ diagnosis and definition of contempt. What is it, after all, that we throw away? We throw away what we think is worthless, that which we can no longer bother fixing, saving, nurturing, protecting, repairing, treasuring or loving. It is, the pope has said, “precisely the weakest and most fragile human beings — the unborn, the poorest, the sick and elderly, the seriously handicapped, et al. — who are in danger of being thrown away.” But not only are there no “worthless” people, there are, as C.S. Lewis remarked in his sermon The Weight of Glory, “no ordinary people.” Those “we joke with, work with, marry, snub, and exploit” — those we mock on Twitter, those at whom we direct contempt, those we “throw away” — are “immortals” and “everlasting splendours.”
From me. Here. A bit:
Americans have, for better or worse, grown used to overconfident pronouncements from the members of the Supreme Court about matters – the true nature of golf, for example, or the long-term cultural implications of social media – that might seem outside their training and expertise. That said, Chief Justice Roberts was on pretty solid ground when he observed, in his opinion for the Court in the recent Trinity Lutheran case, that “[y]oungsters . . . often fall on the playground or tumble from the equipment. And when they do, the gravel can be unforgiving.” And, the foundation is no less firm for the Court’s conclusion that the First Amendment does not permit governments to discriminate against religious believers and organizations when distributing public benefits.
The Trinity Lutheran litigation was about replacing the pea-gravel on a church-run preschool’s playground with shredded scrap tires. The question presented to the justices was whether the Constitution allows the state of Missouri to refuse an otherwise-available reimbursement grant for this project simply because the applicant is a church. By a vote of 7-2, they concluded – correctly, I believe – that it does not. It is, as the Chief Justice wrote, a “basic principle” that the First Amendment “protect[s] religious observers against unequal treatment[.]” However, while the Court answered this question clearly, the ruling invited, and ignored, others. As a result, the case’s implications and impact are, for now, uncertain. . . .
Thursday, September 28, 2017
In this (uncharacteristically) pretty low piece about Prof. Amy Barrett's personal religious activities, Laurie Goodstein of the NYT relies on the partisan distortions of Prof. Barrett's academic work that are still being pushed by an activist group called "Alliance for Justice." MOJ readers will recall that, at Barrett's hearing, some of the senators were fixated on a article she co-authored 20 years ago, as a student, regarding the obligations of Catholic judges in capital cases. Here's what Goodstein writes:
Ms. Barrett was questioned in particular about a 1998 scholarly article in which she and her co-author argued that sometimes Catholic trial judges should recuse themselves from the sentencing phase of death penalty cases. At the hearing, Ms. Barrett backed away from that position, saying she could not think of any class of cases in which she would recuse herself because of her faith.
It's not "back[ing] off", at all, to say (a) sometimes Catholic trial judges should recuse themselves frmo the sentencing phase of death penalty cases and (b) that the role of an appellate judge is not likely to present any situations that might similarly require recusal. Indeed, the article itself discussed the distinction between the two roles. Unfortunately, the Times piece simply serves as a vehicle for pushing the activist group's distortion.
Wednesday, September 27, 2017
Check out (MOJ-friend) Judge Stephen Dillard's excellent concurring opinion in this recent decision from the Georgia Court of Appeals. The case "involv[es] the removal of three children from their parents’ custody by the Coweta County Department of Family and Children Services (“DFCS”)[.]" This is one of those happy occasions where the Constitution of the United States (correctly understood) and the social teaching of the Church are, I think, on all fours. Here's a bit from Judge Dillard's opinion:
. . . Juvenile courts must be mindful that in every case, regardless of any perceived authority given to them by Georgia’s Juvenile Code to interfere with a natural parent’s custodial relationship with his or her child, such authority is only authorized if it comports with the long-standing, fundamental principle that “[p]arents have a constitutional right under the United States and Georgia Constitutionsto the care and custody of their children.”
I take this opportunity, then, to remind our juvenile courts and the State that, in making any decision or taking any action that interferes with a parent-child relationship, our Juvenile Code and established case law is subordinate to and must be construed in light of the fundamental rights recognized by the federal and Georgia constitutions. As this Court has rightly recognized, “[t]he constitutional right of familial relations is not provided by government; it preexists government.” Indeed, this “cherished and sacrosanct is not a gift from the sovereign; it is our natural birthright. Fixed. Innate. Unalienable.”
I agree. As I wrote, 17 years ago (!), in this essay, "[t]he law no more 'creates' the family than the Rule Against Perpetuities 'creates' dirt."
Tuesday, September 26, 2017
Commonweal has published my review of an important new book, Debating Religious Liberty and Discrimination, by Ryan Anderson, Sherif Girgis, and John Corvino. Here's an excerpt from my review:
The book’s fourth and, in my view, most important lesson: restoring relationships across the political divide does not necessarily require shared beliefs, but it will require shared work. The book’s tone in this regard was set by the introduction, jointly authored by Corvino, Anderson, and Girgis. They identify foundational principles and recite a history of religious liberty in our country. In an era of rampant “fake news” accusations, setting out agreed facts before proceeding to engage arguments is (unfortunately) a bold gesture. When it comes to religious liberty and nondiscrimination, if we cannot agree on where we should go, can we at least agree on how we arrived where we are? The authors can and do. Consensus about the facts should not be mistaken for concession on the normative claims, though; neither side pulls any punches in the arguments that follow. Anderson and Girgis identify specific areas of consensus with Corvino after 237 pages of back-and-forth criticism. Robust, honest, and respectful argument can be an impetus to authentic, if not total, agreement.
. . . I suggest that the immediate question is whether American society is properly civil. This question is intelligible and answerable, because the basic standard of civility is not in doubt: "Civilization is formed by men locked together in argument. From this dialogue the community becomes a political community." This statement, made by Thomas Gilby, O.P., inBetween Community and Society, (New York: Longmans, Green & Co., 1953.) exactly expresses the mind of St. Thomas Aquinas, who was himself giving refined expression to the tradition of classic antiquity, which in its prior turn had given first elaboration to the concept of the "civil multitude," the multitude that is not a mass or a herd or a huddle, because it is characterized by civility.
The specifying note of political association is its rational deliberative quality, its dependence for its permanent cohesiveness on argument among men. In this it differs from all other forms of association found on earth. . . .
It is otherwise with the political community. I am not, of course, maintaining that civil society is a purely rational form of association. We no longer believe, with Locke or Hobbes, that man escapes from a mythical "state of nature" by an act of will, by a social contract. Civil society is a need of human nature before it becomes the object of human choice. Moreover, every particular society is a creature of the soil; it springs from the physical soil of earth and from the more formative soil of history. Its existence is sustained by loyalties that are not logical; its ideals are expressed in legends that go beyond the facts and are for that reason vehicles of truth; its cohesiveness depends in no small part on the materialisms of property and interest. Though all this is true, nevertheless the distinctive bond of the civil multitude is reason, or more exactly, that exercise of reason which is argument.
Friday, September 22, 2017
More info here!
The Notre Dame Institute for Advanced Study (NDIAS) brings together leading thinkers from around the world to live and work at the University of Notre Dame as Fellows in a residential intellectual community. The Institute supports outstanding, innovative research in all academic disciplines that is directed toward, or extends inquiry to include, ultimate questions and questions of value, especially as they engage the Catholic intellectual tradition. Consistent with, but not limited to, this tradition the NDIAS encourages its Fellows, regardless of their particular expertise and research,
to think about their work with a view toward the unity of knowledge in a manner that pushes beyond mere interdisciplinarity; and
to explore the relationship between the descriptive (the world as it is) and the normative (the world as it should be).
Wednesday, September 20, 2017
During the last few weeks, a number of (very) prominent scholars and academic figures -- Fr. John Jenkins, Chris Eisgruber, William Galston, Lawrence Tribe, Noah Feldman, etc. -- have forcefully demonstrated that several senators crossed the line, during the recent hearings in the Senate's Judiciary Committee, when questioning (my colleague) Prof. Amy Barrett, who has been nominated for a seat on the U.S. Court of Appeals for the Seventh Circuit. A few legal scholars have stepped up to defend the senators -- including Geoffrey Stone, Eric Segall, and Erwin Chemerinsky -- but (as others have shown in great detail) these defenses have rested entirely on incomplete or inaccurate accounts of what the senators actually said.
More surprising, and disappointing, than these scholars' defenses have been the reactions of some Catholic commentators, including Michael Sean Winters, of Distinctly Catholic, and the editors at Commonweal. [UPDATE: What I say below applies also to Cathy Kaveny's Washington Post op-ed, defending Feinstein's questioning.] In my view, these reactions reflect a failure to engage directly with what actually happened at the hearing. Read the linked-to pieces for yourself. Then, consider these thoughts of mine, for what they are worth:
- (1) It was not inappropriate, and it is not inappropriate, for senators to question judicial nominees (Catholic or not -- if they ask only Catholics, that's a problem!) about (i) their understanding of the judicial role and (ii) their views about the relationship between a judge's religious commitments (if any) and his or her understanding of that role. It is also appropriate to ask a nominee about his or her scholarly work, including work regarding the relationship between a judge's faith and his or her judicial obligations. This kind of questioning does not violate the "No Religious Tests" Clause of the Constitution.
- (2) It is inappropriate (or worse, it is embarrassing) for senators to rely on activist groups' willful misrepresentations of a nominee's (20 year old, co-authored) law-review article as the basis for repeated (as in, over and over and over . . . ) charges regarding the nominee's views. In Barrett's case, multiple senators -- again, clearly relying on interest groups' talking points -- accused the nominee of saying X when, in fact, she had said not-X. This questioning persisted even after Barrett corrected the misunderstanding/misrepresentation.
- (3) Some senators' questions were merely tedious and uninformed (e.g., those of Sen. Hirono) or grandstanding and nasty (e.g., those of Sen. Franken). The questions of Sen. Durbin and (in her second round) Sen. Feinstein, however, were different. Contrary to the suggestions of the authors mentioned above, these senators did not limit themselves to appropriate questions -- the kind that could be asked of any nominee, not only a Catholic one -- about the relationship between a judge's faith and her judicial work and obligations. Rather, Sen. Feinstein said this:
Why is it that so many of us on this side have this very uncomfortable feeling that — you know, dogma and law are two different things, and I think whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, Professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that is of concern when you come to big issues that large numbers of people have fought for for years in this country.
This is not an appropriate question. (Nor was Sen. Durbin's "are you an orthodox Catholic?") This is reminiscent of Know-Nothing and Blanshardian anti-Catholicism. It's what was done to Al Smith and John F. Kennedy. Although Barrett had repeatedly, clearly, and unequivocally provided the correct and reasonably expected answer -- e.g., it is not the role of an Article III federal judge to substitute his or her religious commitments for the positive law when deciding cases -- Sen. Feinstein said (my words, not hers) "I don't believe you, because of what I've heard about your faith commitments." Sen. Feinstein's critics are right; her defenders are wrong. The senators would not have asked -- and the senators' defenders would not have tolerated -- repetitive and badgering questioning of this kind of a practicing Muslim or Sikh (nor should they). The double-standard here -- to quote Sen. Feinstein -- "[speaks] loudly."
A few posts ago, I recommended Matthew Crawford's book, The World Outside Your Head. To convince MOJers to pick it up, I wanted to offer an excerpt. From the book's final chapter, in a section called "The Dialectic with Tradition," I pull here the lessons from Crawford's study of organ-makers. (This is transcribed from the audio, so excuse formatting or other mistakes.)
We moderns have inherited a view that pits the technical spirit versus tradition. Partisans of the first will say it embodies reason and that the latter amounts to little more than inherited prejudice. For their part, partisans of tradition often see in technology a spirit of vandalism that can only destroy meaningful human activity. But to be in conversation with a tradition is a kind of rationality, a mode of thinking that helps us get at the truth about things....
The dialectic between tradition and innovation allows the organ-maker to understand his own inventiveness as a going-further in a trajectory he has inherited. This is very different from the modern concept of creativity which seems to be a crypto-theological concept: creation ex nihilo. For us, the self plays the role of God and every eruption of creativity is understood to be like a miniature Big Bang coming out of nowhere. This way of understanding inventiveness cannot connect us to others or the past. It also falsifies the experience to which we give the name creativity by conceiving it to be something irrational, incommunicable, unteachable....
According to the Enlightenment concept of knowledge we explored [earlier in the book], the exemplary sort of knower is a solitary figure and his knowing happens always in the present tense. He is not encumbered by the past nor does he recognize the kind of authority that operates in communities. His arguments are demonstrative... they float free of any particular historical circumstances or set of lived experiences. Tradition is thus disqualified as a guide to practice. Tradition may convey some truths, it will be conceded. But to be ratified as such, the truths in question must be scrutinized by a mode of reasoning that is independent of what came before. To be rational is to think for oneself. For the most part, this Enlightenment understanding views tradition as a darkness that grips men's minds and a habit of inflexibility to be rooted out. But this view gets a lot wrong.
As we saw also in the case of scientific apprenticeship [earlier in the book], in the development of any real competence, we don't judge everything for ourselves, starting from scratch each morning. Rather we have to begin by taking a lot on faith, submitting to the authority of our teachers, who learn from their teachers. The individualist conceit that we do otherwise - and the corresponding discredit that falls on tradition - makes people feel isolated. As we learned from Tocqueville, this isolation brings with it a certain anxiety which we try to relieve by looking around to see what others - our contemporaries - are thinking and feeling. The rugged individualist becomes the statistical self....
In the book, Crawford dives deep again and again into various sorts of expertise (e.g., short order cook, hockey player, glass-maker, motorcyclist, engineer) to show, among other lessons, the reality of the human person as a situated, embodied self who develops competency and independent judgment within the tradition within which he or she works, "going-forward from" but always dependent upon it. In a word, we are only capable of independent judgment - of thinking for ourselves and innovating anew- when we've appropriated the traditions from which we come. Only then can we look back with reasoned critique. But in making our critique, we best be wary of tearing out root and branch that which has given us the capacity to do so.
[Sept 24 update: Thanks to a reader, original typo corrected.]