Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

A Member of the Law Professor Blogs Network

Saturday, May 23, 2015

Blessed Oscar Romero

Today is a day many people have been waiting for a very long time: the beatification of Oscar Romero, one of my great heroes.

Romero's path to sainthood, however, has not been without controversy.  There are some who during his life viewed him (and some who continue to view him) as a Marxist or, in one commentator's words "a poster boy for the left-wing cause."

I think there is no better answer to the charge of Marxism than the words Romero spoke during his homily on the feast of the Ascension in 1977, three years before his assassination.  The message of the bishops in the Documents of the Second Vatican Council, he preached

condemns this false understanding of tradition that wants to present the Church as simply spiritual - a Church of sacraments and prayers but with no social commitment or commitment to history.  We would betray our mission as pastors, if we were to reduce evangelization to mere practices of individual piety and the participation in non-incarnated sacraments.  The Pope says: Evangelization would not be complete if it did not take account of the unceasing interplay of the Gospel and of man's concrete life, both personal and social (Evangelii Nuntiandi, 29).  My bothers and sisters, let us not place our faith in some corner and reduce it to some private place and then live in public as though we had no faith.  The Council said that this divorce between faith and our private life is one of the great errors of our time (cf. Gaudium et Spes, 43).  So great is this error that in the name of this error, the Church is called subversive because she wants to lead Christians to a faith commitment in their concrete life.  My dear Catholics, let us study this right doctrine and wisdom of the Church.  Then we will understand that priests and Christians who live their Christian commitment in the world are far from being communists or Marxists or subversives.

Blessed Oscar Romero, pray for us!

[cross-posted from Creo en Dios!

May 23, 2015 in Stabile, Susan | Permalink

Friday, May 22, 2015

A challenging premise, human dignity, and "reasoned moral response"

"The premise is that there is a spark of humanity in everyone that is ultimately more defining than whatever delusions, depression, and negative emotions culminated in the act of murder." 

But there is also this: "Clarke saved his life at the expense of his dignity. Kaczynski was furious, and remains so."

And this:

In death-penalty cases, the jury is asked to make a "reasoned moral response" to evidence about the offense and the offender. In federal law, the process involves "weighing" aggravating and mitigating factors. Each juror is permitted to give any mitigating factor whatever weight that juror thinks it deserves. Jurors don't need to come to agreement about what is mitigating and what the mitigators are "worth." A single juror can prevent the unanimous verdict that is necessary to authorize the death penalty.

Now the odd thing: This "reasoned moral response" is given by jurors who already said they were willing to vote for death. Anyone against the death penalty is excluded.

Clarke's task is to create "reasoned moral response." It's not just a recitation of trauma but something more comparable to the work of a novelist. In Paradise Lost, the Devil is the most interesting character, famously. It's thought that Dostoyevsky's best work rose from a polemic waged against the hollow characters of Gogol, whose shells he stole and reinhabited from within, allowing the reader to get close enough so that when murder happens, we sympathize, not with the crime, but with the anguish of the character who committed it.

May 22, 2015 in Walsh, Kevin | Permalink

Thursday, May 21, 2015

Movsesian on the Pew Survey and the "nones"

Over at First Things, Mark Movsesian has posted some as-per-usual insightful thoughts on the recent Pew survey that, among other things, found that the number of Americans who identify as Christian, or with specific Christian denominations and traditions, is declining.   He writes:

[I]t’s hard to see how the rise of the Nones is good for religious freedom. As people check out of organized religion, they are less likely to view it as important and worthy of protection. People with even marginal affiliations may still understand and endorse the importance of religious commitment. The fact that they affiliate at all shows that religion makes up at least some part of their identity. Once people cut their ties completely, however, they are much less likely to be sympathetic to religious communities. If the future of religious freedom depends on the ability of believers to persuade our fellow citizens that faith commitments deserve respect and protection, that task may well become more difficult in the years ahead.

May 21, 2015 in Garnett, Rick | Permalink

One reading of some signs of the times: Time to kill the death penalty

A commentary by George Will in the Washington Post and a piece by Ben Crair at The New Republic (not sure what to call it, as it's not billed as an editorial or opinion piece but reads like one)provide reasons to think that the death penalty is ripe for repeal or drastic limitation. (HT: How Appealing)

I hope that legislators in Virginia (where I live) can follow the lead of legislators in Nebraska and vote to eliminate the state death penalty.

At a minimum, those legislators who support the death penalty should have the courage of their convictions and replace lethal injection with the firing squad as a method of execution. In comparison with lethal injection using experimental protocols, the firing squad is quicker, more reliable, and less vulnerable to constitutional challenge.

May 21, 2015 in Walsh, Kevin | Permalink

May 17, 1924: The Battle of South Bend (Notre Dame v. the Klan)

A few days ago was the anniversary of the day in 1924 that Notre Dame students disrupted a Klan rally.  The incident was part of a longer-running clash between the Klan and the Irish.  Read more here

May 21, 2015 in Garnett, Rick | Permalink

Wednesday, May 20, 2015

Some reading to accompany pages 1-5 of Judge Posner's latest (and hopefully not long for our law) opinion on the contraceptives mandate

Judge Posner is back with another opinion rejecting Notre Dame's attempt to secure exemption from the contraceptives mandate, as required by the Religious Freedom Restoration Act. I couldn't make it past page five before desiring to post some readings to accompany his recitation of the case. 

Three points:

1. For a fuller explanation of the materials discussed in the paragraph on pages 2-3 that concludes with a recommendation to read the D.C. Circuit's Priests for Life opinion for "a compact and convincing summary of the benefits to society in general and women in particular of inexpensive access to contraception," take a look at Helen Alvaré, No Compelling Interest: The "Birth Control" Mandate and Religious Freedom, 58 Vill. L. Rev. 379 (2013). Note also the failure of Judge Posner's formulation here at the outset to map onto the level of specificity required by Gonzales v. O Centro Espirita Beneficente Uniao De Vegetal

2. For the claim on page 4 that the Administration formulated its religious employer exemption "mindful of the dictate of the Religious Freedom Restoration Act," look at the portion of the Federal Register cited by Judge Posner for support, which makes no mention of RFRA. As explained and documented in an amicus curiae brief I co-authored on behalf of Senator Hatch and other lawmakers who enacted RFRA, "the government ignored RFRA in formulating the narrow religious exemption at the outset and only attended to its requirements because of litigation and the reaction to public scrutiny." 

3. For the claim that Notre Dame came within the scope of "the exemption" as a result of new regulations in 2013, take a look at the portion of the Federal Register cited by Judge Posner for support. Rather than expand the exemption to include religious employers like Notre Dame, these regulations provide an "accommodation" for these non-exempt religious employers. In response to commenters who argued that "the proposed definition of religious employer was too narrow and should be broadened to include all employers, both nonprofit and for-profit, that have a religious objection to providing contraceptive coverage in their group health plan," the promulgating Departments said that they were "finalizing without change the definition of religious employer in the proposed regulations." This definition was limited to houses of worship and integrated auxiliaries; it did not include Notre Dame.

May 20, 2015 in Walsh, Kevin | Permalink

Tuesday, May 19, 2015

A Christian Conversation On Human Trafficking and Civil Rights

This is the subtitle of an important conference going on today through Wednesday in Cincinnati. The Freedom Summit is an effort by Christian churches to come together and discuss important components of today's human trafficking problem. It describes the Summit as follows:

"We have seen and heard from people around the country that we're facing a distinct challenge from communities fighting for justice in our nation. On one hand, there are many organizations and churches that are active on the issue of human trafficking both in America and around the globe. On the other hand, there are many Christian groups - particularly in the minority community - who focus significant efforts on the vestiges of slavery and ongoing racism in our nation. Too often these groups don't come together. This is a summit focused on reconciliation, specifically reconciliation around the critical issues of modern day slavery and race in America."


Sponsored largely by the National Underground Railroad Freedom Center, this conference is yet another important example of the role organized religion can play in the movement against human trafficking. Furthermore, it brings into the spotlight the often ignored reality that race plays in human trafficking.

To end this form of exploitation, organizations and individuals must engage in difficult conversations and confront the reality that we all contribute to human trafficking and that we have more people enslaved throughout the world today than at any time in human history. No doubt this conference will contribute to the the national conversation looking to end this exploitation that enslaves millions everyday.

May 19, 2015 in Leary, Mary G. | Permalink

A Bit of Pessimism on the New Pessimism

This column by Damon Linker is a useful summary of some of the current debates concerning the "Benedict Option"--the burgeoning pessimistic weltanschauung inspired by Alisdair MacIntyre's closing words in After Virtue, and characterized by:

[T]raditionalist Christians choosing to step back from the now-futile political projects and ambitions of the past four decades to cultivate and preserve a robustly Christian subculture within an increasingly hostile common culture. That inward turn toward community-building is the element of monasticism in the project. But its participants won't be monks. They will be families, parishes, and churches working to protect themselves from the acids of modernity, skepticism, and freedom (understood as personal autonomy), as well as from the expansive regulatory power of the secular state.

I won't consider the virtues and vices of such a course here. I want instead to suppose that "traditionalist Christians" (and other disaffected constituencies) pursue this approach. And I will assume that by pursuing it, they hope and believe it might be successful. 

The principal question I have is: what cause have they so to hope and believe? Does the success of the Benedict Option not ultimately depend on its political and legal feasibility? Does it not flower or wither at the pleasure of the very culture from which "traditionalist Christians" desire insulation? The preferred instrument of social control in that culture is law. Linker says that the new Benedictines "will presumably still vote and contribute to various public causes, especially those that promise to protect their interests." Yet having withdrawn from politics and law, for whom will they vote? What sort of enfeebled candidates and causes will remain to protect their interests? What legal and political power will want their socially toxic contributions? As I've wondered aloud here before:

There is an assumption, one that one hears with some frequency these days, in some of the talk about focusing elsewhere than law, that if we do so the state and those many that stand opposite will be appeased. They will leave us alone. We will be able to go on defending positions we find important, living the way that we think best, and the state will take its ball and go home. I think that assumption is false. First, I had thought the whole point was to stop discussing law and politics and start talking about something else. And second, skepticism about this assumption is one reason that I admire the difficult work of Rick, Tom Berg, Douglas Laycock, and others. But it is also the reason that I am uncomfortable with the strategy of sympathetic reciprocity that I sometimes see in Tom's always deeply thoughtful commentary. Perhaps mine is an overly pessimistic disposition--and I've now been dutifully admonished about the shortcomings of "sourpusses." But the case here is simpler: if [Jody] Bottum really believes that singing in the trees and rivers will make abortions less common, I'm afraid I see things differently. The state and those on the other side of the issue will see to that. They will be the only game in town.

The Benedict Option claims to be a withdrawal from politics and law. But it is through politics and law that the conditions that constitute the Benedict Option will be permitted to exist, and probably not as an all-or-nothing affair, but through a series of carefully negotiated compromises. Is not the Benedict Option's contemplated political and legal withdrawal a fantasy--a sort of escapism--that is likely to be the very cause of its failure? 

These are questions for the new pessimism asked, admittedly, from a lawyer's point of view. And perhaps there are some answers to them. But if there are, they will be answers rooted in and dependent upon law and politics.

May 19, 2015 in DeGirolami, Marc | Permalink

Archive: Letters in Defense of State RFRAs

The debate over state religious freedom restoration acts (state RFRAs) has obviously become white-hot, and it likely will heat up again in states in the future. For purposes of convenience and of the record, here is a collection of letters defending various state RFRAs, written to legislators considering such bills, by religious-liberty scholars--several of whom (including me) support same-sex marriage--who want to set the record straight on what such bills are actually likely to do. Among other things, the letters state that:

[From IN letter:] The most common charge opponents make against RFRA legislation is that it is a "license to discriminate." It is no such thing.... [Application of anti-discrimination laws] creates a serious conflict for religious individuals who personally provide creative services to assist with such weddings. But whatever one thinks of the arguments for and against exempting such individuals, it is far from clear that the proposed Indiana RFRA would lead courts to recognize such an exemption....

 

[From GA letter:] Most RFRA cases do not involve anti-discrimination laws or suits between private parties.... Rather, they involve disputes between government and a religious individual or organization, and they arise when one of our vast array of government regulations turns out to burden one of the diverse religious practices of the American people.... State RFRAs have been important to the practice of religion in this country, and especially to the practice of minority faiths.

Georgia (Feb. 2015)

Indiana (Feb. 2015)

Arizona (Feb. 2014, to Gov. Jan Brewer; countering widespread misstatements about the likely effect of amendments to the state RFRA, even though some of the signers did not take a position on whether the amendments should be adopted)

Mississippi (Feb. 2014)

North Dakota (May 2012)

May 19, 2015 in Berg, Thomas | Permalink

Monday, May 18, 2015

Prenatal Trisomy Diagnosis Awareness Act

With Minnesota's Governor threatening to veto the bipartisan education funding bill later today, sending the legislature into a special session this summer, I'm happy to report that something positive came out of this past session.  On Monday, Governor Dayton signed the Prenatal Trisomy Diagnosis Awareness Act.  It passed unanimously in the House and 58-1 in the Senate.  That doesn't happen much anymore!

Effective August 1st, health care practitioners in Minnesota who perform genetic tests on pregnant women for Patua syndrome (trisomy 13), Edwards syndrome (trisomy 18), or Downs syndrome (trisomy 21), will have to provide specific information if the results are positive. The information has to include "up-to-date and evidence-based information about the trisomy conditions that has been reviewed by medical experts and national trisomy organizations", including expected "physical, developmental, educational, and psychosocial outcomes", life expectancy, and contact information for nonprofit organizations that provide information and support services for trisomy conditions.

You'd think such information should be routinely given, but 20  years ago when I received a diagnosis of Trisomy 21 for my son, it certainly was not part of anything I got from our genetic counselor or doctor; anectodal evidence suggests things aren't much different now.

According to my friends (and a former student) at the Minnesota Catholic Conference, some of the key factors in getting passed were the diverse coalition of supporters, bipartisan authorship, pepole with disabilities serving as the principal public advocates, and message discipline (this is an information bill--and who is against more information?  Well, based on the sole vote against this, apparently Senator Katie Sieben.)

Though similar bills have been passed in six other states [Massachusetts (2012), Kentucky (2013), Pennsylvania (2014), Maryland (2014), Louisiana (2014) Delaware (2014), and Ohio (2014)]  Minnesota's is the first to include Trisomy 13 and 18.  Anyone who wants information on this bill or the background of its passage, feel free to contact Jason Adkins, Executive Director of the Minnesota Catholic Conference.

 

 

May 18, 2015 in Schiltz, Elizabeth | Permalink

Race and Justice

Yesterday I moderated a program at Our Lady of Lourdes on Race and Justice, the inaugural program in Lourdes' new Salt and Light Series.  We had a panel of three speakers, each of whom spoke for about ten minutes, after which we had time for dialogue and question and answer.  The three speakers were Archbishop Emeritus Harry Flynn, Nekima Levy-Pounds (my colleague at UST Law School and the newly elected President of the Minneapolis NAACP), and Tom Johnson former county attorney and former president of the Council of Crime and Justice.  It was a moving and sobering event.

One of the things that was mentioned was the pastoral letter on racisim Archbishop Flynn released in 2003, In God's Image.  Archbishop Flynn talked about the circumstances of his issuing it and the reaction (positive and negative) he received, and Professor Levy-Pounds noted that she assignes the pastoral letter (along with Martin Luther King's Letter from a Birmingham Jail) to her students each semester.

When I went back to look at the pastoral letter again when I got home yesterday afternoon, I realized how that the words the former Archbishop used to introduce his letter are as timely and important today - perhaps more so - than they were when he wrote them in 20o3.

Here is the Preface to In God's Image:

Brothers and Sisters in Christ,

In the Hebrew Scriptures the prophet Micah gives us a simple but very challenging formula for holiness. He writes,

“… This is what Yahweh asks of you: Only this, to act justly, to love tenderly, and to walk humbly with your God.” (Micah 6:8)

This is the spirit that I hope all of you will bring to the discussion of racism and racial justice in our church and in our society. We cannot be a church that is true to the demands of the Gospel if we do not act justly, if we do not act to root out racism in the structures of our society and our church. And we cannot achieve personal holiness if we do not love tenderly, if we do not love and respect all human beings, regardless of their race, language, or ethnic heritage.

Only if we do these things can we expect to walk humbly with our God. For our God is a God of love and justice, a God who made all of us in His image. Racism is a denial of that fact. It is an offense against God. I realize that the subject of race can be a very difficult one for all of us. Yet I am convinced that we must address it with honesty and courage. For it remains a significant and sinful reality in our midst.

I am issuing this pastoral letter as an invitation to discussion and dialogue. I hope all of you will accept this invitation by taking part in discussions in your parish and community. By engaging in such a dialogue, we can all enhance our understanding of the role that race plays in our lives and we can join together in working to combat racism in all its forms.

Thank you for your commitment to the values of human dignity and racial justice.

God bless you,

Most Reverend Harry J. Flynn
Archbishop

You can read the pastoral letter in its entirety here, and I encourage you to do so.

[Cross-posted from Creo en Dios!]

May 18, 2015 in Stabile, Susan | Permalink

Sunday, May 17, 2015

"We often hide . . . ."

A blog dedicated to Catholic legal theory is surely an apt forum in which to explore the causes and consequences of lawlessness in the Catholic Church.  Today's lesson comes to us from the Diocese of St. Petersburg, where His Excellency Robert Lynch has served as Ordinary since 1996.  First, a little background.  

Yesterday, Bishop Lynch took to his blog (here), "For His Friends," to celebrate his ordination yesterday of five new priests for the Diocese, the largest class of ordinands there since 1991.  I join Bishop Lynch in giving thanks for these new priests of Jesus Christ, all of whom began their studies for the priesthood during the pontificate of Pope Benedict XVI.  Here, in part, is what Bishop Lynch had to say to his new priests yesterday:

We don’t teach what we believe as well as we should. We rely perhaps too heavily on old methods of communication and put too much reliance on traditional vestige, hierarchy of orders and judgment. We often hide in the clothes of the past as well as some of the ideas of the past, disregarding the fact that to today’s younger generation not only are these things devoid of meaning and anachronistic but also some can suggest tendencies that may not otherwise be present.

Talk about weird!  What "tendencies that may not otherwise be present" is the Bishop talking about at an ordination?  Moving on (because there is nothing to see here), to whom does the Bishop refer as "hid[ing] in clothes of the past?"  Is the simple choice to wear the traditional vestments of the Roman Rite to "hide?" And don't forget that "some . . . ideas of the past" are also apparently a refuge for those wishing to "hide!"  

Was the Archbishop of Miami, His Excellency Thomas Wenski, "hid[ing]" when he celebrated a Pontifical Solemn High Mass according to the Usus Antiquior (here)?  Those who have had the privilege of spending time with Arbishop Wenski, who "rides a Harley" (here), can attest that he is no "hid[er]."  His public stances on disputed matters of policy have been courageous, and he frequently celebrates Mass in Haitian Creole.  

If anyone had any doubt about Bishop Lynch's agenda at the ordination and otherwise, his letter in this link gives it all away.  His Excellency has a long history of despising the Traditional Latin Mass (see here), and his letter of April 20, included in full in the link above, virtually breathes contempt for the faithful devoted to the Traditional Mass.

But I said this post was to be about lawlessness, and indeed it is.  Bishop Lynch's endless tactics and strategies for making the traditional Latin Mass all but unavailable in his Diocese are in clear violation of the juridical norms set out by Pope Benedict in Summorum Pontificum (here).  Pope Benedict made clear that he knew that many Bishops were impeding the celebration of the Traditional Mass under the indult permission allowed since 1984 in Quattuor abhinc annos by Saint Pope John Paul II, and for that very reason Summorum removed Bishops from the loop, so to speak.  The permission of the local Bishop is not required for the celebration of the Traditional Latin Mass in public (or in private).  Bishop Lynch's specious logic for suppressing the celebration of the Traditional Latin Mass where it is now celebrated and for consolidating its celebration in the Vietnamese Mission parish has the support of no Roman legal norms currently in force.  We are witnessing unvarnished antinomianism.  I do hope that the good people of the Diocese of St. Petersburg will receive due relief and remedy from the Pontifical Commission Ecclesia Dei, but I am not hopeful.

Why am I not hopeful?  Consider these words that Bishop Lynch also spoke to the ordinands he cautioned not to "hide:"

Style your ministry after Pope Francis. Ever the teacher, he is a master of the use of the gesture which captures the hearts of the world. Why, because he acts like most of us think Christ would act. He speaks with authority only when he has to but with wisdom and understanding and openness. He doesn’t hide behind rich vestments and vestiges of power and privilege but leads by example using words only when absolutely necessary. When Raul Castro can suggest that this Pope is truly an ambassador for God, we least of all,  should never take him for granted.

Did every Pope until Francis "hide?"  And is it true that Pope Francis "use[s] words only when absolutely necessary?"  But who am I to judge?  

May 17, 2015 in Brennan, Patrick | Permalink

Saturday, May 16, 2015

Alan Hurst on marriage, compromise, and changing minds

With Alan's permission, I am posting a version of a thoughtful comment he shared with the Law and Religion listserv:

“You shouldn’t worry about gay marriage and religious freedom,” I’ve occasionally been told. “In thirty years, pretty much nobody’s going to be religiously opposed to gay marriage, so gay marriage won’t interfere with anybody’s religion.” 

The people who’ve told me this generally meant well, but I think their willingness to think this sort of thing—and to imagine that believers concerned about religious freedom would find it comforting—is a testament to the ignorance about religion that pervades certain parts of our society. 

To begin with, few believers could possibly be comforted by someone saying, “You shouldn't worry about the long run because your religions will just change their minds on this issue anyway.” That statement suggests at least one of the following two ideas: 

    1. that religious beliefs are entirely a product of time and culture, with no basis in any transcendent truth and no capacity to resist broader cultural movements. 
    2. that religious beliefs opposing gay marriage are purely an irrational bias and, like religious opposition to interracial marriage, will gradually vanish as gay marriage becomes commonplace and believers' aversion to gay relationships is worn down by familiarity.

 These ideas are too big for me to try to refute here, and certainly there are people who believe them. But if you’re among those people, I hope you’ll consider for a moment how they sound to believers who disagree with you. In essence, when you say, “Your religion will change on this issue,” you’re saying either, “The beliefs you've built your life on have no basis in reality” or “Your bigotry has led you to misunderstand your own religion.” True or false, these two thoughts are quite the opposite of comforting to a concerned believer; indeed, they’re likely to convince some believers that you really don’t understand religion and that you really are out to get them.

But there’s a more practical reason not to tell believers that their religions will soon abandon traditional Christian sexual ethics: if you do, there’s a good chance you’ll be wrong.

Partially I say this because the analogy between religious racism and religious heteronormativity is at most superficially accurate. Traditional Christian teachings about sex just have a much different place in the church than American Christians’ teachings about race ever did—theologically, practically, socially, historically, etc. These things are simply not the same. Ross Douthat wrote briefly (but I think accurately) about this here.

And partially I say this because religion has always been international in nature, and like everything else it's getting to be more so. The heart of Christianity is moving from Europe and North America to Latin America, Africa, and Asia. Within a few decades, China may be home to more Christians than any other country. American Catholicism has never been especially important to the Catholic church, and even we Mormons now have more members outside the U.S. than inside.

Although the gay rights movement is likewise an international phenomenon, it’s not likely to play out everywhere the same way it has here. There are some places where gay marriage will not be legal for the foreseeable future; there are others where legalization will not lead to the sort of pressure on traditionalists that has begun to be exerted here. So long as such places exist, their Christians are going to give some ballast to American Christian opposition to gay marriage. Indeed, to some extent it’s already happening—witness, for example, the ties springing up between conservative American Episcopalians and African Anglicans.

My prediction? I think religious opposition to gay marriage is going to be like religious opposition to premarital sex. The polls will move more rapidly than anyone used to think possible, and in a decade or two only 20% of Americans will think gay marriage is immoral. And then the graph will bottom out, and 20% of Americans will still be thinking that for a long time.

So, the upshot of all this: don’t proclaim too loudly that the present controversies are temporary because we’re all going to agree about all of this very soon. It’s rude: it tells believers you don’t take their beliefs seriously. It’s counterproductive: it will only heighten the fears of people who see gay marriage as a threat to their way of life. And there’s a good chance that it will prove to be wrong, and that we’re stuck for the foreseeable future with the hard work of drawing distinctions and making compromises. The sooner we all commit to it, the better.

May 16, 2015 in Garnett, Rick | Permalink

Friday, May 15, 2015

Conference on Kent Greenawalt

I was very pleased to take part in a conference yesterday at Columbia Law School honoring my old master, Kent Greenawalt, and 50 years of his teaching and writing. Together with Paul Horwitz and Andy Koppelman, I was on a panel involving church and state. Subsequent panels followed on free speech and legal interpretation (chiefly statutory interpretation, which has been Kent's primary focus historically). I took the liberty of saying something about criminal law as well, yet another area in which Kent has made major contributions, including as one of Hebert Wechsler's colleagues in revising the Commentaries to the general part of the Model Penal Code. Paul has a nice post on the event.

Here's a quote of Kent's I found in a piece written about a decade ago: “Criminal law scholars are much more divided about desirable approaches than they were in the 1950s, and even among centrist scholars, no one person now has the distinctive stature that Herbert Wechsler enjoyed.” Some of my comments considered and adapted that general thought in the context of law and religion scholarship today, where it is also apt for various reasons.

Just three additional notes from the panels. First, on the speech panel, there was some interesting discussion about the plausibility of the Austinian idea of performative utterances (a concept used and applied by Kent in this book)--whether the distinction between performative and non-performative speech holds up, or whether all utterances are in some way performative and so we need instead to focus on the quality of the performative speech at issue (threats of violence are different for regulatory purposes than a comment at an academic conference, though there may not be a big difference for performance purposes). Second, on the legal interpretation panel, Fred Schauer criticized the notion that "public meaning" cannot be ascertained without recourse to someone's intentions (I believe Larry Alexander among others holds something like the opposite view), though of course one need not subscribe to original public meaning in order to believe that public meaning is coherent. Third, I had never quite realized (though I guess I should have) just how much sympathy Jeremy Waldron has for textualism. Jeremy talked about a seminar in statutory interpretation that he and Kent ran in the late 1990s and it was clear how much they differed in their respective approaches (and how much they enjoyed the debate). Jeremy's talk included 12 ways in which legislation is qualitatively different from other group expression. One of the 12 was that legislation is "dangerous," which I thought was an interesting thing to say.

May 15, 2015 in DeGirolami, Marc | Permalink

Thursday, May 14, 2015

By way of introduction...

It is a real honor to have been invited to 'blog' here at Mirror of Justice.  I have long admired the keen observations about all things Catholic and legal on this blog, and am so grateful it exists. I do not know how well I'll take to blogging, but if there is a blog for me, this is the one. Thank you Rick and Lisa for taking a chance on me. 

It is particularly edifying to have been invited to join a 'law professor' blog without, well, being a law professor. It gives some credence to the view that my scholarly work is actually important to someone out there; it's not just something I do to keep myself intellectually engaged when I am not otherwise active with six young children or with the classical Catholic school I just helped to found outside of Boston:  www.stbenedictelementary.com.  

My work involves the development of a thoroughgoing Catholic feminist theory as well as a Catholic feminist legal theory, especially as questions about gender intersect with questions of sexual and social ethics.  (I'm also quite interested and adept in discussing theories of both education/educational policy and religious liberty, but will also readily admit to expertise in neither.)

I entered the feminist conversation 20 yrs ago, as a secular feminist activist and Women’s Studies student during my early years at Middlebury College in Vermont.  Since my conversion (or ‘reversion’) to Catholicism in my final year at Middlebury in 1996 (a drama that involves the intellectual intervention of a leading Staussian atheist Jew), I’ve been keenly aware that, to be taken seriously in the modern world, the Church has to be in serious conversation with secular feminists. And though I tend to like a debate, and am strident in my arguments, I do mean conversation. Our political discourse—what with recent War on Women rhetoric on the left and a real demonization of feminism on the right—hasn’t served us well on this score. While adhominems fly, opportunity for real conversation among those of who see ourselves working for women’s progress remains barren. (NB: I applaud the work of Lisa Schiltz and Susan Stabile, especially in their most recent book in search of common ground with Georgetown law professor Robin West, about which I hope to write in a future post.)

So what I’ve tried to do in my work as legal scholar and women’s advocate is something not many faithful Catholic intellectuals would really ever care to do, but is something that is increasingly necessary if we are to truly engage secular feminism on its own terms: as a good Straussian, I seek to read the leading feminist philosophical and legal literature with a sympathetic eye; having been on board once upon a time, I find such sympathy easy to come by (and often still agree with and enjoy much of what I read). 

As I write in Mary Rice Hasson's new book, Promise and Challenge (mentioned by Lisa in an earlier post): 

In order to advance successfully a new feminist worldview in public life or in scholarship, we have to take the time to listen to our feminist-minded interlocutors, read them, and get to know them. If we are convinced, with St. Thomas, that human beings seek the good and the truth, we can turn to feminist theory and argument, and make an effort to identify the good intentions, insights, and authentic advances. In order to love them, we must take them seriously and sympathize with their position the best we can. We must have the confidence to ask humbly what we can learn from our interlocutors. What is it that makes their viewpoint, their writings, so compelling to others? Listening to them can teach us much—about their presuppositions first and foremost, and about potential areas of agreement. In general, though of course there are myriad exceptions, feminist-minded scholars and lay persons tend to care deeply about the sorts of things Catholic women care about:  women and children, relationships, and the vulnerable. We just have starkly different ways of addressing these shared concerns.

I believe that the Church offers a richly pro-woman alternative to secular feminism, but that alternative is deeply inaccessible to the many many people who look out at the world through a secular feminist prism.   As I write in Promise and Challenge:  

Part of our current trouble making inroads into the culture with the Church’s extraordinarily liberating pro-woman message is our inability to translate it adequately for the modern world. (And Pope Francis does seem to think the trouble lay primarily with us, Christ’s disciples, and not with the lost sheep who no longer heed the Christian message.)...To the “JPII Catholic,” guided by the light of faith and strengthened by sacramental grace, the Church’s sexual teachings seem so right and life-saving, and so good for marriage, children, men and women—that there could be no other way. As a result, a vast gulf exists between the well-formed Catholic and the world’s sojourner, a sojourner who has been deeply formed, on the other hand, by the secular feminist worldview, whether or not she knows it or would even describe herself as a feminist. Key phrases used by John Paul II, such as “sexual complementarity,” “feminine, or nurturing, nature,” or “the nuptial meaning of the body” may mean gift and purpose to the well-formed Catholic but represent oppression and confinement to the feminist-minded. Just as in the days of the early Church, members of the same family speak as though foreigners, lacking not only a common moral framework, but also a common language. If we do not find a new translation, a mediating bridge that better articulates Church teaching in a world shaped by feminist views, we will remain forever a booming gong and clashing cymbal, a self-referential church, the Pope says, that thinks itself better than the world, but meanwhile shrivels in its pride, in its inability to love the other enough to go out and find her.

The rest of that chapter as well as the whole of Women, Sex & the Church: A Case for Catholic Teaching tries to make some progress in articulating Church teachings anew, not for utilitarian purposes as though to spin her unpopular teachings in a more attractive way, but alas, because they are true. The sexual revolution has not been the boon to women secular feminists seem to think. 

 

May 14, 2015 | Permalink

"[T]he government should look at China and aspire to do better."

Some basic, but unfortunately on-point advice from Mark Rienzi for the Obama Administration: Do better than China on religious liberty. 

The Administration (and others interested) should read Professor Rienzi's USA Today op-ed on a topic I briefly blogged about previously: "American nuns, Chinese booze and religious persecution." 

(Interesting sidenote: The op-ed is not about same-sex  marriage, but USA Today apparently saw fit to include "gay-marriage" in the web address: http://www.usatoday.com/story/opinion/2015/05/13/china-religion-america-government-gay-marriage-column/27130999/. It would have been really interesting if they had also sought to include "pizza," "memories," "Indiana," or some combination like "Hoosier-pizza-gay-marriage-China-religion-memories-america-take-out-government.")

May 14, 2015 in Walsh, Kevin | Permalink

"Final Exit" Convicted of Assisting in Suicide

Update to my recent post mentioning the prosecution of a the right-to-die group Final Exit Network Inc. here in Minnesota: they were convicted today assisting in the suicide of a woman who took her life in 2007 after years of suffering with chronic pain; it's the first time they've been found guilty of this charge.  They do, of course, intend to appeal for violation of the First Amendment.

May 14, 2015 in Schiltz, Elizabeth | Permalink

Brandon Paradise on "How Critical Race Theory Marginalizes the African American Christian Tradition"

Brandon Paradise (Rutgers Law) has a valuable new article on "How Critical Race Theory Marginalizes the African American Christian Tradition." It's a lengthy piece that documents how critical race theory's methodology has been overwhelmingly deconstructionist and secular, ignoring the central role of Christianity in the lives of most African Americans and in the civil rights movement.

As I read him, Professor Paradise thinks has had several troubling consequences (even though he understands how realities like white Christian support for slavery and quietism within the black church have helped spurred it). First, it has cut off critical race theory from a central aspect of the lives of a large percentage of African Americans--an ironic result given the critical-theory premise that “'the actual experience, history, culture, and intellectual tradition of people of color in America' should serve as the epistemological source for critical scholars." (Quoting Mari Matsuda.)

Second, it significantly eliminated from critical race theory the call for individual spiritual transformation that was an important part (although of course, Prof. Paradise recognizes, not the only part) of the message of M.L. King and other civil rights leaders. Third, and related, Paradise notes how the deconstructionist orientation limits the ability of the theory to appeal to universal principles of human dignity, human nature, and morality in the way that the Christianity-grounded civil rights movement did. Including that old concept of natural law, which just happens to be central to the "Letter from a Birmingham Jail." About the letter, Paradise writes:

[F]ar from offering an indeterminacy critique—the thrust of which illustrates that first principles cannot compel a specific vision of community—King resolutely argues that first principals of natural law compel him to reject a segregated vision of community in favor of a desegregated one.

Prof. Paradise then offers some sober hope about the possibilities for developing an African-American Christian approach to law:

Because of the possibility that developing an approach to law that reflects the African American Christian tradition will receive little support in the legal academy, scholars engaged in the project will have to be pioneering, prophetic voices who are willing to cut against the grain of the secular left as well as the predominantly colorblind, religious right. However, not all is grim. While the project may suffer marginalization within the halls of the legal academy, the Black community’s substantial identification with Christianity means that the effort to develop an African American
Christian approach to law has a natural and substantial constituency outside of the ivory tower.

Lengthy, but as Larry Solum would say, "highly recommended." In this more pluralistic age, civil-rights theory and practice surely can't be grounded solely in the Christianity that inspired the movement of the 1960s: I think Prof. Paradise would recognize that. But he makes a good case that Christianity has been far more marginal among the theorists than it ought to be.

May 14, 2015 in Berg, Thomas | Permalink

"Pope Benedict XVI's Legal Thought"

What a treat -- I received in the mail today my copy of Pope Benedict XVI's Legal Thought, edited by my friends Andrea Simoncini and Marta Cartabia, and published through John Witte's Cambridge Law and Christianity Series.   Learn more about (and buy) the book here.  The description:

Throughout Pope Emeritus Benedict XVI's pontificate he spoke to a range of political, civil, academic, and other cultural authorities. The speeches he delivered in these contexts reveal a striking sensitivity to the fundamental problems of law, justice, and democracy. He often presented a call for Christians to address issues of public ethics such as life, death, and family from what they have in common with other fellow citizens: reason. This book discusses the speeches in which the Pope Emeritus reflected most explicitly on this issue, along with the commentary from a number of distinguished legal scholars. It responds to Benedict's invitation to engage in public discussion on the limits of positivist reason in the domain of law from his address to the Bundestag. Although the topics of each address vary, they nevertheless are joined by a series of core ideas whereby Benedict sketches, unpacks, and develops an organic and coherent way to formulate a “public teaching” on the topic of justice and law.

May 14, 2015 in Garnett, Rick | Permalink

Welcome to Erika Bachiochi

I'm happy to announce, on behalf of the MOJ crew, that we're being joined by Erika Bachiochi, a prolific writer on bioethics, feminism, and Catholic thinking and teaching about these matters.  For a taste of her scholarly writing, check out "Embodied Equality:  Debunking Equal Protection Arguments for Abortion Rights."  Welcome, Erika!

May 14, 2015 in Garnett, Rick | Permalink

What is Caesar's and What is God's? (Video)

Last week I wrote a number of posts  about presentations at the Harvard Petrie-Flom conference on Law, Religion and Medicine.  Soon, videos of all of the panels from that conference will be available. As of now, you can watch the talks given at the pre-conference program last Thursday evening, After Hobby Lobby, What is Caesar's and What is God's.  The link is here.

May 14, 2015 in Stabile, Susan | Permalink

What "Catholic Women" Think

Thanks to Lisa for her sharing of  Mary Rice Hasson's response to Frank Bruni's recent New York Times piece about Catholicism and women.  As I read Hasson's response, along with that of Helen Alvare (reported here, along with the Bruni piece), it might be worth a reminder that "Catholic Women" is not a monolithic group.  Whether it is Bruni or Hasson or Alvare  or anyone else- each speaks for some Catholic women.  (Helen does acknowledge in her response that "no one woman is sufficient to be the voice for all.")  

There is no question that there are a significant number of Catholic women who (in Hasson's words) "love the Church, embrace her teachings, and know that their gifts are deeply important to the Church."  But there are also a significant number  who do not and who  feel marginalized and disconnected and undervalued by their Church because of their gender.  And so, while I don't disagree with criticism of the Bruni piece, we do need to remember that there is a tremendous range of views of Catholic women about the Church, its teachings and how those teachings play out in their world.

May 14, 2015 in Stabile, Susan | Permalink

Wednesday, May 13, 2015

Catholic Feminists Speaking for Themselves

Mary Rice Hasson, a fellow at the Ethics and Public Policy Center, has an interview on National Review Online that offers a fiery response to Frank Bruni's recent NYT piece, “Catholicism Undervalues Women.” She suggests that "Bruni needs to take off his 70s-style feminist goggles, because they’re distorting his view of women and the Church."  
 
She continues:

For decades, the Church went silent when liberals ridiculed “outmoded” teachings on the male priesthood or the immorality of contraception, for example. As Cardinal Dolan said a few years back, the Church became “gun-shy” in the face of cultural disapproval and silenced itself, suffering a self-inflicted catechetical and moral “laryngitis.” Because the Church “forfeited the chance to be a coherent moral voice” on issues that matter to women, the Left has controlled the narrative. They define ‘women’s issues’ and ‘what’s good for women’ on their terms. So the average Catholic woman thinks about these issues much like a secular feminist, demanding “equal access” for women to all “jobs” in the Church, including the priesthood. And it doesn’t help when some women, schooled more in secular feminism than they are in Catholic theology, encounter priests who tip over into clericalism — an attitude strongly criticized by Pope Francis.
 
Hasson invites Bruni to "Come meet the smart, accomplished Catholic women in my world — they love the Church, embrace her teachings, and know that their gifts are deeply important to the Church." 
 
Hasson just edited a book called "Promise and Challenge:  Catholic Women Reflect on Feminism, Complementarity, and the Church,"  a collection of essays by some of the Catholic women in Hasson's world:  me, Hasson, Helen Alvare, Sr. Sara Butler, Sr. Mary Madeline Todd, Margaret McCarthy, Deborah Savage, Theresa Farnan, Cathy Pakaluk, Erika Bachiochi, Mary FioRito, and Mary Eberstadt.  My chapter is The Promise and the Threat of the 'Three' in Integral Complementarity, addressing some of the barriers to men and women collaborating more fruitfully in the life of the Church arising out of fear of the unknown Church that might emerge from such collaboration, and lingering distrust between men and women created by the sexual abuse crisis and women’s advocacy for abortion.
 

May 13, 2015 in Schiltz, Elizabeth | Permalink

Tuesday, May 12, 2015

"He knows very well what he is doing"

Archbishop Victor Manuel Fernandez, the theologian widely acknowledged to have been the lead ghostwriter of Pope Francis's much-praised apostolic exhortation Evangelii Gaudium, recently gave an interview that is remarkable for the crudity of its categories, the tendentiousness of its contentions, and, above all, what it portends for the silent lambs.  The Archbishop's way of talking about the Church is so far from what one would expect from a serious theologian and vir Ecclesiae, it's difficult, for me at least, not to despair at the significance of this man's being one of the advisors on whom the Holy Father is reputed to rely the most.  

The interview is here, and those who care about how we should love the Bride of Christ should be scandalized by the mentality it bespeaks and the future it all but promises.  Keep in mind that its all-but-named target at one point is the recent and utterly unprecedented suggestion (here) by Cardinal Muller, Prefect of the Congregation for the Doctrine of the Faith, that a new role for the CDF would be to provide a "theological framework" for this pontificate.  As readers will recall, Cardinal Muller was one of Pope Benedict's last senior appointments in the Roman Curia.

The point Archbishop Fernandez is keenest to drive home is that there will be "no turning back:"

The pope goes slow because he wants to be sure that the changes have a deep impact.  The slow pace is necessary to ensure the effectiveness of the changes.  He knows there are those hoping that the next pope will [] turn everything back around.  If you go slowly it's more difficult to turn things back. . . .

 

[Interviewer] :When Francis says he will have a short pontificate doesn't this help his adversaries?

The pope must have his reasons, because he knows very well what he's doing. [SIC]  He must have an objective that we don't understand yet.  You have to realize that he is aiming at reform that is irreversible.  If one day he should intuit [sic?] that he's running out of time and doesn't have enough time to do what the Spirit is asking him, you can be sure he will speed up.

So, to recap: The Pope will go slowly to make irreversible changes until he "intuits" that he needs to hurry up if he's to succeed in making irreversible changes.  

Now, as the larger context of the interview makes unmistakable, Pope Francis of course doesn't commit the mistake of thinking that all in the Church is changeable.  Acknowledged as unchangeable, in fact, are the existence of the Petrine office and of the College of Bishops.  And so:

The Roman Curia is not an essential structure.  The pope could even go and live away from Rome, have a disastery in Rome and another one in Bogota, and perhaps link-up by teleconference with liturgical experts that live live in Germany.  Gathered around the pope, in a theological sense, is the College of Bishops in order to serve the people."  

This concatenation of wild possibilities gives a new image to ultramontanism.  But ultramontanist it is, despite the cultured veneers provided by a newly minted theology of papal popularity.  According to Archbishop Fernandez over and over in the interview, the decisive fact is that "the people are with him" "and not with his few adversaries."  "[M]ost of the People of God love Francis."  

And why shouldn't they?  Here comes perhaps the most breathtaking part of a tightly integrated interview that is indeed programmatic in the extreme.  It comes in the explanation of why there is "no turning back:"  "If and when Francis is no longer pope, his legacy will remain strong."  Why, other than nostalgia?  

[T]he pope is convinced that the things he's written or said cannot be condemned as error. Therefore, in the future anyone can repeat those things without fear of being sanctioned.  And then the majority of the People of God with their special sense will not easily accept turning back on certain things.  [emphasis in the preceding par. added]

[Interviewer:] Don't you see the risk of 'two Churches'?

No.  There's a schism when a group of important people share the same sensibilities that reflect those of a vast section of society.  Luther and Protestantism came about this way.  But now the overwhelming majority of the people are with Francis and they love him.  His opponents are weaker than what you think.  Not pleasing everyone does not mean provoking a schism.

[Interviewer:]  Isn't this idea of the pope having a direct rapport with the people something risky, while the Church's ecclesiastical class feels marginalized?

But the Church is the People of God guided by their pastors.  Cardinals could disappear, in the sense that they are not essential.  The pope and the bishops are essential.  Then again, it is impossible that everything a pope does and says will please everyone.  Did everyone like Benedict XVI?  Unity does not depend on unanimity.

[Interviewer:] Do you think a conclave would re-elect Francis today?

I don't know, possibly not.  But it happened . . . .

 

Yes, it happened.  But the creeping infallibility asserted with arresting breadth and clarity in the quoted language should cause the faithful  -- whether they consider themselves liberals, conservatives, or, better, just plain Catholic -- to sit up and pay attention and, I dare say, to object.  

For example, Pope Francis has never purported to speak ex cathedra, and so how can it be that in his own view, as reported by a most-trusted advisor, nothing he has "said" -- and he says a lot -- can possibly be in error, such that what he has "said" necessarily can be "repeated" ad libitum by the "People of God."

There are changeable elements in the Church visible, and those can indeed be changed.  There are unchangeable elements in the Church visible, and those cannot be changed.  What, then, is the point of the "they love Francis" populism in service of a creeping infallibilism?  Well, perhaps a confusing of the changeable and the unchangeable?  What does it mean to "hurry up," as the Archbishop said Francis would, to make "irreversible" changes in what is, ex hypothesi, changeable?  The truly unchangeable cannot be changed, even by a Pope in hurry.  The authentic theology of the sensus fidelium (cf. Archbishop Fernandez's "special sense," above) is not about the success of demagoguery and Machiavellian politics in the Domus Sanctae Marthae, not about the large numbers who "love [Francis]" and how comparatively few and "weaker" are Francis's "adversaries." Nonetheless, Archbishop Fernandez is more or less content to contend as follows: "This pope first filled St. Peter's Square with crowds and then began changing the Church."      

As the Archbishop insisted, Pope Francis "knows very well what he's doing."  

May 12, 2015 in Brennan, Patrick | Permalink

Monday, May 11, 2015

For the "changing religion" files . . .

Hillary Clinton was in the news recently when she said, in a speech, that "deeply seated religious beliefs" "will have to be changed" in order to secure broader abortion rights, etc.   Now, this story ("China orders Muslim shopkeepers to sell alcohol, cigarettes, to 'weaken' Islam") from China provides an example of a modern government seeking, for its own purposes, to weaken the hold of religious beliefs on its subjects.  Here's a bit:

Chinese authorities have ordered Muslim shopkeepers and restaurant owners in a village in its troubled Xinjiang region to sell alcohol and cigarettes, and promote them in “eye-catching displays,” in an attempt to undermine Islam’s hold on local residents, Radio Free Asia (RFA) reported. Establishments that failed to comply were threatened with closure and their owners with prosecution.

Facing widespread discontent over its repressive rule in the mainly Muslim province of Xinjiang, and mounting violence in the past two years, China has launched a series of “strike hard” campaigns to weaken the hold of Islam in the western region. Government employees and children have been barred from attending mosques or observing the Muslim fasting month of Ramadan. In many places, women have been barred from wearing face-covering veils, and men discouraged from growing long beards.

Both stories, it seems to me, are reminders that claims about government "neutrality" with respect to religion are more aspirational than historical.  Governments care about religious beliefs, and always have.  And, governments are not limited to heavy-handed tactics like China's -- licensing requirements, accreditation standards, spending conditions, and (as we have been reminded recently) tax exemptions are available, too.  I explored this idea, a decade or so ago, in this article, "Assimilation, Toleration, and the State's Interest in the Development of Religious Doctrine":

Thirty-five years ago, in the context of a church-property dispute, Justice William Brennan observed that government interpretation of religious doctrine and judicial intervention in religious disputes are undesirable, because when "civil courts undertake to resolve [doctrinal] controversies..., the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern." This statement, at first, seems wise and fittingly cautious, even unremarkable and obvious. On examination, though, it turns out to be intriguing, elusive, and misleading. Indeed, Justice Brennan's warning presents "hazards" of its own, and its premises - if uncritically embraced - can subtly distort our constitutional discourse. 

This Article provides a careful and close examination of the statement's premises and implications, and concludes that, far from being a "purely ecclesiastical concern," the content of religious doctrineand the trajectory of its development are matters to which even a secular, liberal, and democratic government will almost certainly attend. It is not the case that governments like ours are or can be "neutral" with respect to religion's claims and content. As this Article shows, the content, meaning, and implications of religious doctrine are and have long been the subjects of government power and policy. Secular, liberal, democratic governments like ours not only take cognizance of, but also and in many ways seek to assimilate - that is, to transform - religion and religious teaching. And, it is precisely because such governments do have an interest in the content, and, therefore, in the "development," of religious doctrine - an interest that they will, if permitted, quite understandably pursue - that authentic religious freedom is so fragile.

May 11, 2015 in Garnett, Rick | Permalink