Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Friday, April 28, 2017

My (video) conversation with John Allen, Jr. on "Drinks with John" about religious freedom

This was fun.  John Allen is even nicer in "person" than he is sharp in print.  Check it out!

April 28, 2017 in Garnett, Rick | Permalink

Witte on History and "God's Joust"

A nice thought, from Prof. John Witte (Emory):

“History is more than simply an accidental chronology of first one thing happening, then another. For me, history is also a source of revelation, a collection of wisdom. The archive is a treasure trove. Old books are windows on truth. The challenge of the Christian historian is to search within the wisdom of the ages for some indication of the eternal wisdom of God. It is to try to seek God’s revelation and judgment over time without presuming the power of divine judgment. It is to try to discern God’s justice within God’s joust.”

April 28, 2017 in Garnett, Rick | Permalink

A Global Political Morality: Human Rights, Democracy, and Constitutionalism

Yesterday I posted to SSRN the introduction to my new book.  Several issues I address in the book are issues that engage many MOJ readers:  the religious v. secular grounds of human rights (chapter 2); the human right to religious/moral freedom (chapter 4); the proper role of the judiciary in resolving constitutional controversies that are also moral controversies, such as the constitutional controversies over capital punishment, same-sex marriage, and abortion (chapters 5-6); and human rights of the socioeconomic sort—such as the human right to adequate healthcare—which are the sort of human rights with which Catholic social teaching has long been concerned (chapter 7).  Here is a link to the introduction.  The abstract:

This SSRN posting consists mainly of the introduction to my new book: A GLOBAL POLITICAL MORALITY: HUMAN RIGHTS, DEMOCRACY, AND CONSTITUTIONALISM (Cambridge University Press 2017). The “global political morality” to which the title refers is what I call “the morality of human rights”. In the book, as I explain more fully in the introduction, I pursue several related inquiries that lie at the interface of human rights theory, political theory, and constitutional theory.

The first two inquiries concern the morality of human rights: 1. What are “human rights”? 2. What reason (or reasons) do we have--if indeed we have any — to take human rights seriously?

The next two inquiries concern the relationship of the morality of human rights to democratic governance: 3. How does the morality of human rights support democratic governance? 4. How does the morality of human rights limit democratic governance? I address the latter question with particular reference to the human right to religious and moral freedom.

The final three inquiries concern the relationship of the morality of human rights to certain constitutionalism-related questions: 5. In the context of the Constitution of the United States, what theory of judicial review takes seriously both the human right to democratic governance and the other human rights that are limits on democratic governance? 6. What are the implications of that theory of judicial review — a theory that comprises a (limited) affirmation of an originalist understanding of constitutional interpretation — for the constitutional controversies over, respectively, capital punishment, race-based affirmative action, same-sex marriage, physician-assisted suicide, and abortion? 7. Should human rights of the socioeconomic sort, such as the human right to adequate healthcare, be constitutionalized — and if so, should they also be judicialized?

April 28, 2017 in Perry, Michael | Permalink

Thursday, April 27, 2017

Susan B Anthony at Harvard Law

Last week I had the great honor of receiving the Susan B. Anthony Award for Commitment to Life from the Harvard Law Students for Life. (I'm pictured below with the incoming president of the organization, Steven Obiajulu.) The organization was founded by a merry band of students in 2016, advised by the ever courageous Mary Ann Glendon and fellow MOJer Adrian Vermuele. The students presented the inaugural SBA award last year to Robert George.  


Over lunch, I gave a lecture to the law school community, co-sponsored by the HLS Federalist Society. My topic, "Revisiting Planned Parenthood v Casey: Does 'Relying' on Abortion for Equality Actually Serve Women's Equality?" was a summary of a law review article I've written for a symposium on the 14th Amendment and abortion, convened by Steve Gilles at Quinnipiac University School of Law. The symposium, inspired by Steve's recent pro-life legal scholarship, took place at Quinnipiac this past Saturday and included contributions from Michael Stokes Paulsen and Charles Camosy (as well as Steve and myself). The articles will be published in the Quinnipiac Law Review's late summer issue. (NB: The dean of the law school, Jennifer Brown, participated in symposium in its entirety, offering incisive questions and important critique. Her support of Steve's work -- and her engaged and thoughtful participation in the Symposium -- are an admirable example of an institutional commitment to intellectual diversity. Bravo!) 

For those who haven't read Gilles' pro-life work, Why The Right to Elective Abortion Fails Casey's Own Interest-Balancing Methodology -- and Why It Matters, 91 Notre Dame L. Rev. 691 (2015) is a good place to start. His forthcoming article is a much-needed critical analysis of Whole Women's Health v Hellerstadt, and specifically, Justice Breyer's failure to be faithful to Casey. With characteristic surgical precision, Gilles explores the Casey compromise, and why Hellerstadt could be a bigger blow than some might realize. 

My forthcoming article argues that Casey has been inadequately understood by those most critical of it. Specifically, I argue that concerns about women's equality are the interpretative lens through which to read the substantive due process discussion (re women's "unique liberty"), the attempted (and I think failed) comparison of the contraception cases with Roe and its progeny, and finally the stare decisis holding (wherein the oft-quoted 'reliance' language makes its debut). (Much too could be said about the spousal notice discussion but I give it only a footnote, perhaps to return to it more fully some other day.) Here's a bit from my HLS talk:

Many have ably critiqued the Court’s use of stare decisis in Casey both as a general constitutional matter and by taking each of the considerations the Court reviews one by one...most notably the late Justice Scalia in his Casey dissent and eminent constitutional law professor Michael Stokes Paulsen. But when, in the Joint Opinion, the Court declared that “a terrible price would be paid for overruling [Roe],” both Scalia and Paulsen understand the Court to be concerned primarily with the legitimacy and integrity of the Court itself. Though it’s probably not so prudent to argue against these two constitutional giants, I think the text of the Joint Opinion indicates that the Court was actually primarily concerned with something else: the impact reversal would have upon women’s enhanced status in society. This is not to say that the voiced concern for the court’s legitimacy and institutional integrity expressed in Part III of the Casey decision was not important to the justices in the plurality, for surely the space afforded and the sheer energy manifest in that part reveal that it was.


It is to say, however, that by its own terms, Casey indicates that women’s constitutionally protected "liberty" to access abortion to “participate equally” in the “economic and social developments” of the nation is the key concept undergirding the controversial reaffirmation. Now perhaps the Court’s concern about its own institutional integrity may have gone hand in hand with worries about how the Court would have been perceived had it upended the constitutional right to abortion--what had become, over the intervening nineteen years, the sine qua non of the modern day women’s movement. My point here is not to disturb others’ critiques of the stare decisis or institutional integrity arguments; my point is only that critics of Casey have not taken the underlying concerns about women’s equality seriously enough.


I spend some time exploring and then critiquing the reliance arguments concerning the interplay between abortion and contraception (arguing, most fundamentally, that the moral hazard effects of abortion as a back up to failed contraception has made this interplay far more complex than the Casey plurality assumes). I then look at the reliance arguments concerning women's equal participation in social and economic life. Here's some from the presentation, where I borrow from Justice Holmes' dissent in Lochner to shape my point: 

[W]hen Holmes wrote in his Lochner dissent that "a constitution is not intended to embody a particular economic theory,” I would suggest that these words are equally applicable to Roe, and more explicitly to Casey, if one replaces “economic theory” with “feminist theory.” For by constitutionalizing the right to abortion in Roe, and reaffirming it through equality reasoning in Casey, that is precisely what the Court was doing: it illicitly appropriated a particular feminist theory, newly popularized in the 1970s, into the Court’s interpretation of the 14th amendment --with social consequences that remain salient for women today....


Just as the Lochner court chose to constitutionalize one particular theory of how to respond to the asymmetries in the employer/employee relationship after the cultural upheaval of the Industrial Revolution, Casey doubled down on a particularly inhumane way of securing women’s increased social status in society after the Sexual Revolution. In so doing, Casey thwarted more humane responses to the asymmetries that naturally exist—and socially persist—due to women’s disproportionate role in human reproduction.  

I'll post when the issue comes out. 






April 27, 2017 in Bachiochi, Erika | Permalink

Wednesday, April 26, 2017

Judge Wilkinson, All Falling Faiths, and Anyone Who Loves America

Another book you may wish to consider for your summer reading list is All Falling Faiths: Reflections on the Promise and Failure of the 1960s, by J. Harvie Wilkinson III.

An exchange that stood out to me in David Lat's ATL interview with Judge Wilkinson about the book was the one that elicited Judge Wilkinson's statement that "the audience is anyone who loves America":

DL: I think the book will interest a wide range of readers for a wide range of reasons — but did you have a particular reader or group of readers in mind when you were writing it?

JHW: The audience is anyone who loves America. All of us can still help to repair the damage that long-ago decade did to the spirit of tolerance in education, to the stability of family bonds and units, to the rule of law, to our sense of America as our home, to our capacity for national unity even in times of crisis, and to the sustenance we derive from the practice of religious faith. It’s also important to recognize, however, that the 1960s did great good and helped to broaden America’s embrace of all its citizens, not just some. I hope that by the end of the book, each reader will come at least to appreciate the other side of the enduring ‘60s argument.

I believe the generation of the Sixties has been given one last chance to get it right. We can help upcoming generations learn from our experience. And we can devote our later years to bringing together the nation we did so much in our youth to drive apart. We owe our beloved country at least this much, before we leave Shakespeare’s stage and life itself for good.

Marc DeGirolami and I wrote an article a few years ago that explored the relationship between constitutional adjudication and constitutional theory through a study of some judicial and extrajudicial writings by Judge Wilkinson and Judge Posner. We contended that their anti-theory stance, together with their advocacy for judicial restraint and judicial pragmatism, respectively--which functioned in some important ways similar to the theories that they criticized--were best understood as accounts of judicial dispositions in constitutional adjudication. Judge Wilkinson's new book, together with his and Judge Posner's judicial and extra-judicial writings since Marc and I wrote, provide some evidence for the comparative attractiveness of the dispositions advocated by Wilkinson over those advocated by Posner. 

April 26, 2017 in Walsh, Kevin | Permalink

Monday, April 24, 2017

Putting First Things First in Higher Education

Last month St. Gregory's University held a wonderful conference, "Leisure and Labor: The Liberal Arts and the Professions," inspired by our mission as a university and Joseph Pieper's great work, Leisure the Basis of Culture. There were many highlights, including my daughter's paper on the practical arts (cooking, sewing, etc) as preparation for the liberal arts, Fr. Schall's wonderful paper, Robert Royal's penetrating insight, Teresa Collett's practical wisdom, and many others. I hope at some point to be able to blog more on the substance of these papers, but I fear that the book of conference papers will probably appear before I have the chance. 

The conference was planned around my inauguration as President (HT to John Garvey for giving me the idea of a conference at the time of an inauguration). An edited version of my inaugural address was published today in Crisis. Here is a taste: 

The dialogue between Martha and Jesus in Chapter 10 of Luke’s Gospel captures the essence of this relationship between labor and leisure. Mary sits at Jesus’s feet, attentively listening to him, while Martha serves the guests. “Martha, burdened with much serving, came to [Jesus] and said, ‘Lord, do you not care that my sister has left me by myself to do the serving? Tell her to help me.’” Jesus replied, “Martha, Martha, you are anxious and worried about many things. There is need of only one thing. Mary has chosen the better part and it will not be taken from her.”

Reflecting on this passage in his Angelus message on July 18, 2010, Pope Benedict XVI said that this Gospel passage “recalls the fact that the human person must indeed work and be involved in domestic and professional occupations, but first and foremost needs God, who is the inner light of Love and Truth. … And who, if not Jesus Christ, gives us Love and Truth?”

April 24, 2017 in Scaperlanda, Mike | Permalink

Friday, April 21, 2017

Pierre Manent on Republicanism

From his very interesting article in the latest issue of First Things, "The Tragedy of the Republic," in which Manent explores some of the themes of Shakespeare's Roman plays in describing the nature of a republic:

The first political dimension is especially disagreeable and bitter for us, but for this reason it is particularly useful: The principle of the republic is aristocratic; the spirit of those who govern a republic is aristocratic pride, the pride of the few who are capable and virtuous. Coriolanus takes this pride to the point of insolence and furor, but it remains the general principle of the regime. The life of the republic rests on the emulation of those who judge themselves to be the most capable of governing the city and who expect from the city honors proportionate to their service. This aristocratic character belongs to the essence of a self-governing political body, one that wishes to be governed by the best. The modern device of representation is designed to manufacture artificially, with the consent of the many, a few who are capable, if not virtuous.

April 21, 2017 in DeGirolami, Marc | Permalink

Tuesday, April 18, 2017

Judge John T. Noonan, Jr., R.I.P.

John T. Noonan, Jr., judge of the Ninth Circuit since his appointment in 1985, has died.  He was 90.  A good and faithful servant of our Lord first, he was a jurist of great distinction and a legal historian with a breadth approached by none.  If you haven't read his book, Persons and the Masks of the Law, now is the time --  it shows how love works in law.  Please join me in praying for the happy repose of the soul of John T. Noonan, Jr., a man who unashamedly communicated love wherever he traveled.    

April 18, 2017 in Brennan, Patrick | Permalink

Friday, April 14, 2017

Esbeck on discretionary religious accommodations and "third-party harms"

Prof. Carl Esbeck has posted a succinct, and very helpful, response to the currently popular theory that discretionary religious exemptions violate the Establishment Clause whenever they result in "third-party harms."  Here is the abstract: 

The Establishment Clause is not violated when government enacts regulatory or tax legislation but provides, concerning these new burdens, an accommodation for those holding conflicting religious beliefs or practices. Such religious exemptions are enacted at the discretion of the legislature and have as their purpose to ameliorate hardships borne by religious minorities and other dissenters who find themselves out of step with the prevailing social or legal culture. In an unbroken line of cases now spanning a century, the Supreme Court has seven times rejected the argument that a religious exemption contravenes the Establishment Clause. In some instances, no doubt, lawmakers should exercise their discretion and deny an exemption for religious observance. What is not the law is that the presence of adverse effects on those who do not benefit from an exemption causes an otherwise lawful accommodation to violate the Establishment Clause.

Cases involving a religious preference are being confused with exemptions. An exemption occurs when a dissenter’s religious practice is simply left alone even as others are made to labor under a new burden of the legislature’s creation, be it a tax or regulatory duty. Government does not establish religion by leaving it alone. An exemption, rather, ensures that a new regulatory burden on others is not also thrust in the path of individuals who are already inclined to follow the dictates of their faith. Because the government’s exemption is not the causal agent behind the religious observance, any harm to third parties is the result of private conduct. Harm redressable under the Establishment Clause must be injury that was caused by the government, not private actors.

A preference, on the other hand, arises when the government takes note of a disagreement in the private sector that involves religion. If a law is adopted that takes the side of the religious disputant, the government is intentionally preferring religion. The favoritism occurs in a situation not of the state’s creation, but in circumstances arising out of private social or market forces. Should the form of the government’s intervention go on to “unyieldingly” side with religion such that any costs to others are not weighed in the balance, then the Court will strike down the preference. The operative Establishment Clause rule is that persons in the private sector should not be forced to readjust their lives just so that a neighbor can better conform to his or her religion.

Along with the foregoing preferences, progressives want religious exemptions to be balanced against any incidental harms that befall third parties. They want this not as a matter of legislative discretion, but as a constitutional imperative. This not only misconceives the nature of the Establishment Clause, but the argument assumes that “third-party harm” as a juridical category can be both defined and bounded. It cannot. Additionally, the logic behind this category is in danger of expanding and could end up overwhelming most every religious exemption.

The founding generation did not regard a religious exemption as an establishment. Moreover, there are presently thousands of religious exemptions in local, state, and federal law. To abolish them all because they are thought to be unconstitutional under a novel theory would work primarily to the injury of religious minorities. That would bring a sea change in the venerable American practice of extending a welcoming hand to diverse religions.

April 14, 2017 in Garnett, Rick | Permalink


Regular MOJ readers (and those burdened by social-media connections with me) will know that, for quite a while, I'd been looking forward to the release of Martin Scorcese's production of "Silence", by Shusaku Endo.  I saw it -- in a theater, even! -- last week and was moved, impressed, provoked, and unsettled.

There are a lot of reviews and interpretations out there already (some of which seem to be more about the author's theological or political hobby-horses than about the book, the film, the author, or Scorcese), and I won't try to referee the arguments here.  The film is, like the book, ambiguous -- deliberately so, I've always assumed.  I do not pretend to know what Scorcese "intended" to communicate, but -- as I saw it -- the production paints statist anti-Christian persecution as the evil that it was, and is; depicts sympathetically the pain (physical and spiritual) that such persecution causes; and admiringly portrays the courage of martyrs, even as it evokes sympathy for those who stumble (as we all do).  The sound, the imagery, the color, the scenes and settings - all great. Highly recommended.

A blessed Easter to all! 

April 14, 2017 in Garnett, Rick | Permalink

Thursday, April 13, 2017

Society's Guilt and the Church's Witness

For your Holy Week reading, I recommend Wilfred McClay's essay, "The Strange Persistence of Guilt," published in The Hedgehog Review.  McClay asks, "How can one account for the rise of the extraordinary prestige of victims, as a category, in the contemporary world?"  As a society "that retains its Judeo-Christian moral reflexes but has abandoned the corresponding metaphysics," we retain the burden of sin-shaped guilt but lack "the transactional power of expiation without which no moral system can be bearable."  This helps explain why "claiming victim status is the sole sure means left of absolving oneself and securing one's sense of fundamental moral innocence." 

Others, including David Brooks, have commented on this essay.  I'm most interested in McClay's conclusion:

[T]he persistent problem of guilt may open up an entirely different basis for reconsidering the enduring claims of religion. Perhaps human progress cannot be sustained without religion, or something like it, and specifically without something very like the moral economy of sin and absolution that has hitherto been secured by the religious traditions of the West. . . . without the support of religious beliefs and institutions, one may have no choice but to accept the dismal prospect envisioned by Freud, in which the advance of human civilization brings not happiness but a mounting tide of unassuaged guilt, ever in search of novel and ineffective, and ultimately bizarre, ways to discharge itself.

The capacity of "religious beliefs and institutions" to function as a bulwark against this social phenomenon assumes, of course, that they are not themselves compromised by said phenomenon.  In some circles within American Christianity, there has been a tendency to view life in a pluralist society through a victimhood lens.  In other circles, the metaphysical foundations of Christian grace appear to have weakened considerably.  So as we journey into the Paschal Triduum, it bears noting that we are recalling theological truths that are the best type of counter-cultural claims -- i.e., claims that resonate with an authentic and desperately needed vision of the human person. 

April 13, 2017 in Vischer, Rob | Permalink

Rachel Lu essay on the Douthat/West Conversation

My colleague Rachel Lu wrote this very perceptive essay for The Federalist on the Murphy Institute's  Douthat/West conversation.   She captures the extraordinary generosity and depth of the conversation very well.  I was asked by a reporter why we were so confident that this conversation would be as rich as it turned out to be, and I told her that it was because of a couple of attributes we knew these two speakers shared:  fierce intelligence, a strong faith commitment, and senses of humor.  Rachel confirms this in her essay:

It would be difficult to script a more genial conversation between representatives of the political left and right. Charging headlong into the hard questions, West and Douthat discussed capitalism, white supremacy, traditional sexual morals and more. Neither man at any point lost his poise or sense of humor. In the end, the audience was left wondering: Is there a way to recreate this dynamic elsewhere in America? Why were these two able to venture where so many others have feared to tread?

There is an obvious answer: West and Douthat can understand each other because they are both Jesus freaks. That is to say, their perspectives are shaped in significant ways by a serious Christian commitment.

We're still working on the video link!  It's turning out to be a bit complicated.  Stay tuned!

April 13, 2017 in Schiltz, Elizabeth | Permalink

"Shine Down a Light on Me and Show a Path"

Amidst the ugliness and triviality that seems to define so much of contemporary culture, it is reassuring to know that it is still capable of producing works that sound with the timbre of truth and stir the heart to pine for what is beyond that which the mind fathoms but fails to grasp.  

I heard the song "Shine" by the band Mondo Cozmo the other day for the first time and had what can only be described as an "Easter moment."  The lyrics are here.  I don't know whether others will have the same reaction as I did, but I do wish all MOJ readers and writers a prayerful Holy Week and a joyful Pascha.

April 13, 2017 | Permalink

Sunday, April 9, 2017

Remarkable evening with Ross Douthat and Cornel West at St. Thomas

On Friday, the Murphy Institute hosted a truly memorable conversation between Cornel West and Ross Douthat on "Christianity and Politics in the U.S. Today."  We had about 1,200 people coming from all over the university, as well as the greater Minneapolis and St. Paul communities -- a testament to the appetite in this country for civil dialogue between people of different viewpoints.  And both them lived up to their well-deserved reputations for incisive, principled, generous, and inspiring commentary.  I was privileged to moderate the conversation, and it was one of the most enjoyable 2 hours I've ever spent on a stage!  We will post a link to the video as soon as we can arrange it.  In the meantime, here are a couple of the highlights to look for:  the fascinating debate about whether the term "white supremacy" is applicable to any situation other than the relationship between blacks and whites in the United States; Ross Douthat asking Cornel West:  "What about sex?", and the ensuing discussion; and the very last audience question, from a 16 year old Latina woman, and both responses.

Here's a picture taken right after the program, showing (from left to right), Dr. Julie Sullivan (President of UST), Cornel West, Ross Douthat, Seanne Harris (the program manager of the Murphy Institute, without whom -- and I mean this very literally -- the program would not have been possible), and me.


April 9, 2017 in Schiltz, Elizabeth | Permalink

Friday, April 7, 2017

More evidence -- in this case, tragic evidence -- about the importance of school choice

St. Anthony's high school in Newark is, after years of struggling, going to close.  This shouldn't have to happen. 

April 7, 2017 in Garnett, Rick | Permalink

Helfand on anti-Catholicism . . . and Trinity Lutheran

Here's an excellent piece by Prof. Michael Helfand (Pepperdine) on anti-Catholicism and the upcoming Trinity Lutheran case.  (I wrote about the case here.)

April 7, 2017 in Garnett, Rick | Permalink

Thursday, April 6, 2017

Reflections on my time in Rome as a speaker at the conference commemorating Popularum Progressio

I just returned from a three day trip to Rome, where I had the great honor of speaking on the topic of the family at the international conference commemorating the 50th anniversary of Pope Blessed Paul IV's Popularum Progressio. The conference was convened by the new Dicastery for Promoting Integral Human Development (merging prior Vatican offices of Justice & Peace, Cor Unum and others).

I enjoyed my time there immensely -- and, as a speaker, was among the few to receive a personal greeting from the Holy Father. I've included a picture below of that blessed encounter (in which I asked him to bless my family and, recalling his request for work articulating a "new theology of women," gave him a copy each of Women, Sex & the Church: A Case for Catholic Teaching and Promise and Challenge: Catholic Women Reflect on Feminism, Complementarity, and the Church.) The Holy Father addressed the conference, speaking to the need to "integrate" all of the persons of the earth, noting that "the duty of solidarity [] obliges us to seek fair ways of sharing."

Both Cardinal Turksen, prefect for the new dicastery, and Cardinal Müller, prefect for the Congregation for the Doctrine of the Faith, gave truly beautiful introductory remarks. Both began with the anthropological foundations--and transcendent realities--that undergird the Church's work in the world. 

Cardinal Turksen was especially eloquent on the unique God-given nature of the Church's mission in the world. He spoke first of the person's communal nature, the centrality of solidarity with the poor, and the Church's "persevering commitment to the common good." And then, emphasizing the duties the rich have to the poor, he paraphrased Pope Paul VI's use of a quote of Saint Ambrose in Popularum Progressio. St. Ambrose: "You are not making a gift of what is yours to the poor man, but you are giving him back what is his. You have been appropriating things that are meant to be for the common use of everyone. The earth belongs to everyone, not to the rich." 

But he then went on to say that each person must be an "artisan" of his or own destiny, since "every man is born to seek self-fulfillment, for every human life is called to some task by God" (PP, 15). He said, importantly, that the development of the self is derived from the transcendent call of God, and so is "incapable of supplying its own meaning." And thus, he went on to emphasize, now quoting Pope Benedict, that agents of development must be people of prayer. He happily noted that some in the world development community had widened its focus to include more than indices of economic and social transformation in its analysis of development, but that "the Church still contributes something special: prayer."

More Turksen themes: The transcendent character of the human person is the reason the Church  has authority to speak--and must speak--in the world.  Without our acknowledgement of God and of the human person's eternal destiny, development is denied or truncated. The human person may accumulate wealth but does not truly develop. Development is not something done to a person, but is an invitation to answer his vocation, to take responsibility for his own fulfillment. Thus, the principle force in development is the rule of charity: making Christ's love and invitation real to others. 

Cardinal Müller, for his part, spoke of the need to reflect on Gaudium et Spes, the "magna carta" of development, written just before Popularum Progressio, in order to fully understand the nature of the person and his efforts in the world. All the institutions of the Church must always work to reveal God's love to each person: the origin, essence, and mission of the Church must be understood in light of the incarnation, so that the human person might reach his fullness according to the moral and spiritual nature of man. 

The Cardinal differentiated the Catholic approach of development from the many political ideologies especially powerful during the 20th century, but still present in different names or forms today. From the CruxNow article reporting on the conference:

Non-Christian visions of development include the “communist” idea of “creating heaven on earth,” the “utilitarian” idea of seeking “the greatest level of happiness for the most people,” the “Darwinian” or “imperialistic” notion of the survival and thriving of the strongest, and the “capitalistic” vision “with the exploitation of the world and labor.” “If we use these means, we are violating man’s dignity,” Müller said.

Echoing themes from Cardinal Turksen's remarks, Cardinal Müller reminded the participants that we cannot produce God's kingdom on our own strength. We need grace: we must ask the help of the Holy Spirit, the "spirit of charity that sanctifies us." "Even good works are worth nothing if not rooted in the love of God through the Holy Spirit."

He concluded by talking about new forms of "colonialism" conveyed under the term "modernism" or the "well-being society." He said these can be a denial of other cultures that are "authentic expressions of the human...Different people can announce the work of God in another language...the single culture is the culture of God." And finally, we must not forget that each person must be redeemed by overcoming sin within himself. Only this interior struggle against moral evil will allow for the creation of "dignified conditions." 

I could go on, recounting other terrific, eye-opening speeches, offered by cardinals and bishops from around the world, as well as a good number of impressive lay people. But let me turn to my own.

Notably, the section on the family comes right at the heart of Popularum Progressio. Here's much of it: “The natural family, stable and monogamous, as fashioned by God and sanctified by Christianity, —"in which different generations live together, helping each other to acquire greater wisdom and to harmonize personal rights with other social needs, is the [very] basis of society." (PP36) Thus, the title of my talk (as given to me) was: "The Family: Between Personal Rights and Social Needs."

My remarks were self-consciously American, offering a glimpse into our free and prosperous nation, now at risk of "coming apart."

[A]s we think together about integral human development, I hope to offer some lessons from the United States that might serve as a kind of bell-weather for developing nations, so as not to, in the words of Popularum Progressio, “allow economics to be separated from human realities” (PP, 14). As Pope Paul VI warned: “The developing nations must choose wisely from among the things that are offered to them [by the wealthier nations]. They must test and reject false values that would tarnish a truly human way of life, while accepting noble and useful values in order to develop them in their own distinctive way....” (PP, 41)

I focused especially on "the diametric trajectories of the marrying rich and unmarrying poor," given the data on outcomes for the children of each, and that this trend was especially foreboding for both income inequality and the flourishing of the most vulnerable.  I went on to diagnose the decline of marriage among the poor as being, at least in part, due to the especially harsh effects of the sexual revolution upon poor women:

[W]hat has become increasingly difficult to ignore, even for secular thinkers, is the way in which the sexual revolution of the 1960s and 70s dramatically altered the circumstances in which poor women bear and raise their children. The decoupling of sex from marriage and marriage from childbearing, ushered in by the sexual revolution, unraveled a working-class culture of once stable marital bonds that children need and both mothers and fathers relied upon for their success at home and at work, and in all of life.

I then turned to some new data showing that the most well-educated women in the US are getting and staying married at the highest rates of all demographic groups today. 

Whether working outside of the home or exclusively within it, these elite women well understand the unique contributions their husbands make to their children’s well-being and to their own happiness. They well understand that collaboration and “reciprocity” (AL, 54) in their marriages is the surest ticket to their children’s well-being—and to their own.

And then here's the central part of the talk: 

In Amoris Laetitia, Pope Francis rightly notes that “[h]istory is burdened by the excesses of patriarchal cultures that considered women inferior,” and that were sometimes “marked by authoritarianism and even violence.” But recent history, as experienced by poor single mothers in my country and across the Western world and beyond, does not look kindly upon the radical feminist corrective to the harsh inequities that sometimes accompanied traditional marriage. As Pope Francis suggests, these inequities “should not lead to a disparagement of marriage itself, but rather to the rediscovery of its authentic meaning and its renewal.” (AL, 53), since, Amoris Laetitia again, “violence contradicts the very nature of the conjugal union” (AL, 54).


Ensuring women’s rights within the family and in society requires strong prohibitions against domestic violence and other forms of violence against women and children; legal protections for women in the workplace; just honors and support for the culturally-essential care work that women disproportionately undertake in all societies, including the most egalitarian; and equal access to food, health care, education and, importantly, political participation.


But, in the effort to help families more authentically “harmonize personal rights with social needs,” developing nations with strong family traditions ought not give into the “ideological colonization” that threatens the family from powerful feminist organizations within wealthier nations, especially my own.


Equal rights for women does not require that women suppress their fertility, reject their unborn children, or abandon their hopes for a joy-filled, life-long marriage. The feminist response to the sexual asymmetry between men and women—the fact that women get pregnant and men do not—too often demands that women seek a sort of faux-equality with men, by “imitating models of ‘male domination,’” (EV, 99) as Evangelium Vitae put it, in prioritizing abortion and contraception over women’s educational and broader health care needs. Rather, the far better, and indeed more equitable, just and authentically pro-woman response to sexual asymmetry, is to reconfirm in all cultures the essential and distinctive obligations that fathers have in the family, and to reimagine the dynamic collaboration of men and women in the lives of their children and beyond.


“We often hear” Pope Francis writes, “that ours is ‘a society without fathers…. In our day, [Francis continues] the problem no longer seems to be the overbearing presence of the father so much as his absence, his not being there” (AL, 177). The Holy Father suggests that “some fathers feel they are useless or unnecessary…[and even that] manhood itself seems to be called into question” (AL, 176).


And so, even as we celebrate the progress for women in many countries—and seek to promote it more authentically in still others— we must bring into sharper relief the essential contributions men make as husbands and fathers within the family. Eminent anthropologist Margaret Mead famously said that “the central problem of every society is to define appropriate roles for the men,” as women’s identity has always been caught up in forging life and building relationships, in the home, in the wider community, and now, in a growing number of countries, in the corporate boardroom and the hospital emergency room. With changing roles for women, men are struggling with their identities more than ever; many men are floundering, feeling unneeded, even unwanted, opting out of life through drugs and pornography, or re-asserting their presence through violence and terror.


But men are needed in the family today, as they always have been, by their children—and by their children’s mothers. Studies out of the US show that a father in a loving relationship with the mother of his children is far more likely to have children who are healthier, both psychologically and emotionally. And, as it turns out, the single most important determinant of a mother’s happiness is the very same: the father’s commitment to and emotional investment in the woman’s well-being and in that of their children. In addition, both marriage and fatherhood can have a deeply transformative effect on men themselves: they work harder, advance in their jobs, are less likely to commit crimes, have less substance abuse, better health, and importantly, grow in religiosity. The positive impact upon men of marriage and fatherhood—and in turn, of religious faith—redounds not only to the benefit of their wives and their children, but also to their workplaces, their communities, their nations.


The rest of the talk is dedicated to the transformative power of indissoluble marriage upon both women and men - and, of course, children.

The primary obligation parents have to their children, after the most basic of necessities, is for their parents to truly love, respect, and honor one another....


And thus, we must always affirm that assistance to developing nations does not detract from, but instead promotes the mutual love and collaboration between husband and wife, helping each, as necessary, to recognize the inherent dignity of the other, and teaching them to grow in affection and in trust....


And so, it is we, in the Church, who must prioritize the health and strength of every marriage – for who else in the world right now knows how important each and every marriage is to the development of persons and of nations!? The Holy Father again: “As Christians, we can hardly stop advocating marriage…We would be depriving the world of values that we can and must offer” (AL, 35).


I conclude (to the great satisfaction, I learned, of the many Africans in the room): 

As Popularum Progressio rightly notes, “many nations, poorer in economic goods, are quite rich in wisdom and can offer noteworthy advantages to others” (PP, 40). As we come together these days to promote the integral human development of all peoples, let us heed the wisdom of those nations that still enjoy rich family cultures and let us learn from them. It is, after all, the meek and the vulnerable, the cared for and the caregivers within the family, who will inherit the earth.



April 6, 2017 in Bachiochi, Erika | Permalink

Wednesday, April 5, 2017

Sen. Tim Kaine's misguided and disappointing attack on Judge Gorsuch

Here is a link to Sen. Kaine's op-ed in which he contends that Judge Gorsuch, if confirmed to the Supreme Court, "jeopardizes women's rights."  As we were told often, during the campaign, Sen. Kaine is a practicing, educated, well formed Catholic, and so it is surprising and disappointing that he would, in his piece, present the very idea of "complicity" as if it were something exotic or troubling.  Put aside disagreements about the Court's application of the RFRA in Hobby Lobby and put aside also questions one might have about the religious objections raised in that case or in the Little Sisters litigation.  Kaine writes:

"All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others."

"The wrongdoing of others"? Who are these "others," and what did they do wrong? They are the women who work for Hobby Lobby, and their "wrongdoing" was their desire to make their own choices about using contraception.

Moral questions of complicity in others' behavior had nothing to do with the legal question in this case. The only legal issue was whether the owner's beliefs about contraception conflicted with the ACA. So Judge Gorsuch's decision to inject his own editorial comment about women's "wrongdoing" was an insulting characterization of a personal choice protected by the law. His two uses of the phrase "all of us" also suggest that he was making a point far broader than what the parties to the case had presented to him.

But, of course "[m]oral questions of complicity in others' behavior had . . . to do with the legal question in this case."  The entire point of both sets of cases was that the RFRA claimants objected, for reasons they described as religiously-informed moral reasons, to being required by the coverage mandate to be complicit in what they regarded as wrong.  (Indeed, probably the leading -- even if, to me, unconvincing -- academic criticism of Hobby Lobby focuses precisely on the dangers the authors see in incorporating "complicity" into religious-freedom law.)  I understand, certainly, that Sen. Kaine (and, probably, most people) do not think that, in fact, the conduct in question is "wrongdoing" but that "ha[s] nothing to do with the legal question in [the] case[s]."  (This response by Kaine to a fact-checker reflects a similar mistake.)   

April 5, 2017 in Garnett, Rick | Permalink

Health Care and the Gospel

That's the title of a new piece by Timothy Stoltzfuss Jost in Commonweal.  The subtitle:  "Where Are the Lawmakers of Faith?"  Tim, who is Mennonite, is Robert L. Willett Family Professor of Law at Washington and Lee University School of Law.  I recommend Tim's piece (here) to all MOJ readers.  I was privileged to be Tim's colleague during 1981-82, which was my final year at Ohio State (before heading off to Northwestern for a fifteen-year stint) and Tim's first year there.

April 5, 2017 in Perry, Michael | Permalink

Sunday, April 2, 2017

Some Pope St. John Paul II posts, on the anniversary of his death

Here are just a few, from the archives.  RIP.

"The Jurisprudential Legacy of Pope John Paul II" (here).

"Pope John Paul II and the Law" (here).

Calendar of the Beatification (here).  

"Remembering Pope John Paul II" (here).

"MOJ reflections of the first feast of St. John Paul II" (here).

"John Paul II and the Crisis of Modern Times" (here).

April 2, 2017 in Garnett, Rick | Permalink

Restoring the Soul of the University

Intervarsity Press has published a promising new book, "Restoring the Soul of the University," in which the authors insist that "Christian universities can recover their soul―but to do so will require reimagining excellence in a time of exile, placing the liberating arts before the liberal arts, and focusing on the worship, love, and knowledge of God as central to the university." (HT: TaxProf)  Since I haven't read the book, I can't guarantee that the authors -- Perry Glanzer, Nathan Alleman, and Todd Ream -- offer big ideas that haven't been proposed by previous contributors to this genre.  Even if the same basic insights repeat themselves, though, I think the insights gain new depth and nuance depending on the context in which they're offered.  In this case, the context is promising for at least three reasons: 1) the authors are affiliated with Baylor, a university that has experienced turmoil stemming from its efforts to reclaim a robust Christian identity and (more recently) achieve prominence in college sports; 2) the book is coming out in the wake of an election in which white evangelicals propelled to victory a presidential candidate who was dismissive of the sort of intellectual pursuits embodied by the very idea of a university, Christian or not; and 3) over the past few years, American universities have become significantly less hospitable to claims rooted in traditional Christian morality, particularly around issues of sexuality.

Here's a quote from the authors that suggests they appreciate the scope of the challenge:

We think Christians should be romantic realists. Our love for God and faith and hope in God should lead us to be optimistic about the creative and redemptive work in which we are involved.

In our own research, we continually find inspiring examples taking hold around the world. For example, African Christians have created more institutions of higher education in the past two decades than the rest of the world combined. Not surprisingly, this growth happened when various African nation-states dropped their monopolies on higher education. Christian higher education tends to prosper when freedom for civil society flourishes as well.

Yet, since we recognize the sinful tendency in humanity to repress and reduce educational freedom, we also want to be realists. Throughout history, powerful political forces have sought to deform and destroy Christian higher education. Whether it involved the leaders of the French Revolution and Napoleonic wars who helped terminate one-third of Europe’s universities, the leaders of nation-states who appropriated and nationalized Jesuit universities in the 19th century, or the communists who took over whole university systems in the 20th century, politicians seeking domination have often destroyed diverse university systems (and with it, religious universities) to promote their ideological agenda. We thus pray for wisdom and strength for individuals and institutions that currently face those pressures, which could one day include those in North America.

April 2, 2017 in Vischer, Rob | Permalink

Wednesday, March 29, 2017

The Ethics of Cooperation and the Contraceptive Mandate

King's College philosophy prof Bernard Prusak has put together an interesting symposium on the ethics of cooperation and the Affordable Care Act's contraceptive mandate.  He has provided an overview of the contributions by three philosophers and a theologian:

[T]he three philosophers all reject the claim that giving HHS notice of opposition to the provision of contraceptives amounts to impermissible cooperation in wrongdoing. By contrast, Kate Ward [the theologian] concedes that “it is reasonable to regard even so seemingly insignificant an act as signing a document as formal cooperation in offering birth control to employees,” but the focus of her contribution is different: after observing that “determining whether an act is or is not cooperation is not sufficient for determining how one should proceed” and that “cooperation reminds us of the world’s moral complexity and the impossibility of avoiding any contact with evil,” she goes on to evaluate the Little Sisters’ case as an act of protest.

You can read the papers for yourself here.

March 29, 2017 in Vischer, Rob | Permalink

Prophecy Without Contempt: Religious Discourse in the Public Square

That's the title of the book by Cathleen Kaveny that was published one year ago this month (Harvard University Press).  Professor Kaveny is the Darald and Juliet Libby Professor at Boston College, where she holds a joint appointment (School of Law, Department of Theology).

On Friday, April 7, 1:30-5:00 PM, at the McMullen Museum of Art, 201 Commonwealth Avenue, Boston, there will be a program, focused on Professor Kaveny's book, entitled "Prophecy Without Contempt:  A Conversation About Religion, Identity, and Exclusion in Our New Political Era".  The three speakers are an extraordinarily impressive group:  Jonathan Lear, John U. Nef Distinguished Service Professor, Committee on Social Thought and Department of Philosophy, University of Chicago; Charles Taylor, Professor Emeritus, Department of Philosophy, McGill University; and Rowan Williams, 104th Archbishop of Cantebury and Master of Magdalene College, University of Cambridge.  Professor Kaveny will respond.  The program is presented by The Clough Center for the Study of Constitutional Democracy, Boston College. 

March 29, 2017 in Perry, Michael | Permalink

Orestes Brownson, "The Scholar's Mission"

With the helpful guidance of Richard Reinsch's Brownson anthology, I have lately begun trying to understand the constitutional thought of Orestes Brownson. I am interested in the nature of our Union, and Brownson promises to be very helpful in arriving at clearer thinking on that topic.

Through something of a roundabout way, I recently found myself reading Brownson's 1843 oration at Dartmouth College, "The Scholar's Mission."  This mission, he says, is nothing less than "INSTRUCTING AND INSPIRING MANKIND FOR THE ACCOMPLISHMENT OF THEIR DESTINY."

It seems to remain a matter of some dispute what the precise source of JFK's "ask not" exhortation may have been. Some hear echoes of an Oliver Wendell Holmes Jr. speech, and others of Warren G. Harding. Yet another possibility identified by others is this Brownson oration. It includes the exhortation: "Ask not what your age wants, but what it needs; not what it will reward, but what, without which, it cannot be saved; and that go and do, do it well; do it thoroughly; and find your reward in the consciousness of having done your duty, and above all in the reflection that you have been accounted worthy to suffer somewhat for mankind."

March 29, 2017 in Walsh, Kevin | Permalink

Monday, March 27, 2017

"To Win Again, Democrats Must Stop Being the Abortion Party."

So argues Thomas Groome in today's New York Times.  He writes:

By tradition and by our church’s teaching on social justice, many Catholics could readily return to voting reliably Democratic. But for this to happen, their moral concerns regarding abortion must get a hearing within the party, rather than being summarily dismissed. How might that happen?

To begin with, Democratic politicians should publicly acknowledge that abortion is an issue of profound moral and religious concern. As a candidate, Barack Obama did just that in a 2008 interview, saying, “Those who diminish the moral elements of the decision aren’t expressing the full reality of it.”

Democrats should not threaten to repeal the Hyde Amendment, which forbids federal funds to be used for abortion except in extreme circumstances. They could also champion an aggressive program to promote adoption by strengthening the Adoption Assistance Act of 1980 and streamlining adoption procedures. The regulations in many states seem designed to discourage it.

Democratic politicians should also continue to frame their efforts to improve health and social services as a way to decrease abortions. The abortion rate dropped 21 percent from 2009 to 2014. That downward trend would most likely end if Republicans eliminate contraception services provided through the Affordable Care Act.

As I see it, these called-for developments -- while they would be welcome -- would not really do much to change the minds of those who regard, perhaps with regret, the Democratic Party as "the Abortion Party."  The first proposal -- "acknowledge that abortion is a matter of profound . . . concern" -- is obviously sound, but it need not be accompanied by any changes in platform or policy.  The second -- don't repeal the Hyde Amendment -- is also welcome, but it really involves simply maintaining a 40-year status quo.  And the final one -- "continue to frame efforts" -- is about messaging, not policy.  It seems to me that what could make a difference (but is very unlikely to happen, given the political givens) would be if the Democrats decided that their positions on abortion should roughly track those of the population as a whole.

March 27, 2017 in Garnett, Rick | Permalink