Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Tuesday, February 28, 2017

The Washington florist case: is Jim Crow the best analogy?

I've written an essay for America magazine on the Washington Supreme Court's recent ruling rejecting a florist's claims that the Constitution shields her from being compelled by the state to provide flowers for a same-sex wedding ceremony.  I continue to think that the legislature needs to do the heavy lifting if we're going to navigate the tensions between religious liberty and anti-discrimination norms, but the Washington Supreme Court's reasoning leaves plenty to be desired.  For example, the Court approvingly quoted the customer's brief that “[t]his case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches."  Here's a responsive excerpt from my essay:

Well, the 1960s civil rights cases were not just about access to sandwiches. They were about access to sandwiches and housing and jobs and schools and parks and water fountains and voting booths and transportation and so much else. Jim Crow was a tightly woven web of laws and social norms aimed at the systemic oppression and subjugation of blacks; the harms were not going to be remedied by either legislators or judges wielding scalpels. The 1960s civil rights laws were sledgehammers, as they needed to be.

Fast-forward to 2013 and the debate over the nature of marriage. Once the news broke that Mr. Ingersoll and Mr. Sneed had been turned away by Ms. Stutzman, several florists offered to provide flowers for their wedding free of charge. If our legal system lacks the capacity to acknowledge a meaningful difference between Ms. Stutzman’s denial of flowers and the treatment of blacks under Jim Crow, the liberty of conscience is headed for a very rough ride.

February 28, 2017 in Vischer, Rob | Permalink

An Atheist and a Monk Discuss Church-State Separation and the Justification of Punishment

In preparation for an upcoming conference on Russian traditionalism, I thought it was a good moment to pick up Dotoyevsky's "The Brothers Karamazov." In a fairly early part of the book, I came across the following incredible exchange between Ivan Karamazov and the Orthodox monk "Elder," Father Zossima, concerning the separation of church and state and its effect on the justification of criminal punishment. It's as interesting and useful a reflection (particularly by the monk) on these issues as one can find anywhere:

"If everything became the Church, the Church would exclude all the criminal and the disobedient, and would not cut off their hands," Ivan went on. "I ask you, what would become of the excluded? He would be cut off then, not only from men, as now, but from Christ. By his crime he would have transgressed not only against men but against the Church of Christ. This is so even now, of course, strictly speaking, but it is not clearly enunciated, and very, very often the criminal of today compromises with his conscience: 'I steal,' he says, 'but I don't go against Church. I'm not an enemy of Christ.' That's what the criminal of today is continually saying to himself, but when the Church takes the place of the State it will be difficult for him, in opposition to the Church all over the world, to say: 'All men are mistaken, all in error, all mankind are the false Church. I, a thief and murderer, am the only true Christian Church.' It will be very difficult to say this to himself; it requires a rare combination of unusual circumstances. Now, on the other side, take the Church's own view of crime: is it not bound to renounce the present almost pagan attitude, and to change from a mechanical cutting off of its tainted member for the preservation of society, as at present, into completely and honestly adopting the idea of the regeneration of the man, and of his reformation and salvation?"

....

"Yes, but you know in reality it is so now," said the elder suddenly, and all turned to him at once. "If it were not for the Church of Christ there would be nothing to restrain the criminal from evil-doing, no real chastisement for it afterwards; none, that is, but the mechanical punishment spoken of just now, which in the majority of cases only embitters the heart; and not the real punishment, the only effectual one, the only deterrent and softening one, which lies in the recognition of sin by conscience....

"[A]ll these sentences to exile with hard labor, and formerly with flogging also, reform no one, and what's more deter hardly a single criminal, and the number of crimes does not diminish but is continually on the increase....Consequently the security of society is not preserved, for, although the obnoxious member is mechanically cut off and sent far away out of sight, another criminal always comes to take his place at once, and often two of them. If anything does preserve society, even in our time, and does regenerate and transform the criminal, it is only the law of Christ speaking in his conscience. It is only by recognizing his wrongdoing as a son of a Christian society--that is, of the Church--that he recognizes his sin against society--that is, against the Church. So that it is only against the Church, and not against the State, that the criminal of today can recognize that he has sinned. If society, as a Church, had jurisdiction then it would know whom to bring back from exclusion and to reunite to itself. Now the Church having no real jurisdiction, but only the power of moral condemnation, withdraws of her own accord from punishing the criminal actively. She does not excommunicate him but simply persists in fatherly exhortation of him. What is more, the Church even tries to preserve all Christian communion with the criminal. She admits him to church services, to the holy sacrament, gives him alms, and treats him more as a captive than as a convict. And what would become of the criminal, O Lord, if even the Christian society--that is, the Church--were to reject him even as the civil law rejects him and cuts him off? What would become of him if the Church punished him with her excommunication as the direct consequence of the secular law?

"There could be no more terrible despair, at least for a Russian criminal, for Russian criminals still have faith. Though, who knows, perhaps then a fearful thing would happen, perhaps the despairing heart of the criminal would lose its faith and then what would become of him? But the Church, like a tender, loving mother, holds aloof from active punishment herself, as the sinner is too severely punished already by the civil law, and there must be at least someone to have pity on him. The Church holds aloof, above all, because its judgment is the only one that contains the truth, and therefore cannot practically and morally be united to any other judgment even as a temporary compromise. She can enter into no compact about that. The foreign criminal, they say, rarely repents, for the very doctrines of today confirm him in the idea that his crime is not a crime, but only a reaction against an unjustly oppressive force. Society cuts him off completely by a force that triumphs over him mechanically and (so at least they say of themselves in Europe) accompanies this exclusion with hatred, forgetfulness, and the most profound indifference as to the ultimate fate of the erring brother. In this way, it all takes place without the compassionate intervention of the Church, for in many cases there are no churches there at all, for though ecclesiastics and splendid church buildings remain, the churches themselves have long ago striven to pass from Church into State and to disappear in it completely. So it seems at least in the Lutheran countries. As for Rome, it was proclaimed a State instead of a Church a thousand years ago. And so the criminal is no longer conscious of being a member of the Church, and sinks into despair. If he returns to society, often it is with such hatred that society itself instinctively cuts him off. You can judge for yourself how it must end....

"What was said here just now is true too, that is, that if the jurisdiction of the Church were introduced in practice in its full force, that is, if the whole of the society were changed into the Church, not only the judgment of the Church would have influence on the reformation of the criminal such as it never has now, but possibly also the crimes themselves would be incredibly diminished. And there can be no doubt that the Church would look upon the criminal and the crime of the future in many cases quite differently and would succeed in restoring the excluded, in restraining those who plan evil, and in regenerating the fallen. It is true," said Father Zossima, with a smile, "the Christian society now is not ready and is only resting on some seven righteous men, but as they are never lacking, it will continue still unshaken in expectation of its complete transformation from a society almost heathen in character into a single universal and all-powerful Church. So be it, so be it!"

February 28, 2017 in DeGirolami, Marc | Permalink

Monday, February 27, 2017

Danish Blasphemy Prosecution for Koran Burning

Here's a fascinating story in the New York Times about a prosecution in Denmark for blasphemy, against a man who burned a Koran and posted his burning to Facebook. It seems that blasphemy laws remain on the Danish books, notwithstanding that the country is, by all accounts, very secular. Though the decision to charge was made at the local level, it has been ratified by Denmark's attorney general.  

No one has been convicted under the Danish blasphemy laws since 1946, when the law was used to prosecute a man who dressed up as a priest and mock "baptized" a doll.

A few thoughts:

1. Apparently the defendant had been charged initially with a "hate speech" crime, but the charge was subsequently changed to blasphemy. Perhaps hate speech is a lesser included offense? The linear continuity of hate speech with blasphemy is itself worthy of a separate article. Indeed, as I have argued at length, but as Tocqueville said more pithily, freedom never governs without faith. The only real question for a society that enjoys some speech protections is for what ends speech will be restricted, not whether it will restrict it at all. Of course, it will. And it seems altogether natural that the proscription on hate speech would in the end find its fullest and most complete expression in the zealotry (I use the term neutrally) of an anti-blasphemy law. (Parenthetically, the man also stated that he hated children. That seems rather sweeping, and perhaps worthy of its own hate speech prosecution. Perhaps if he had said, "I hate some children," one might be more sympathetic.)

2. Denmark of course has a recent history of conflict with Islam, as in the infamous Mohammed cartoon incident about 10 years ago that resulted in no charges, and, as the story says, "deadly riots, attacks on Danish embassies in the Middle East and a trade boycott against Denmark." Perhaps, for these and other reasons, Denmark has come to a different conclusion today. Still, it's clear from the story that the burning of a Bible is legal, since in 1997 a Danish artist burned a copy of the Bible on television and nobody batted an eye. Perhaps what Denmark really needs is to refine its blasphemy laws--to give more detailed guidance about which religious texts may be defiled with impunity and which must be let alone. One thing that Denmark should not do: abandon blasphemy laws. It will only send such laws underground, and similar policies will be enforced through other means without the honesty of calling them what they are (vide, e.g., hate speech).

3.  The defendant's lawyer seems to be making the utterly bizarre claim that the man acted in "self-defense" in burning the Koran, because the Koran contains language about how Mohammed's followers "must kill the infidel." I don't know the Danish law of self-defense, but this strikes me as a highly unusual principle of proportionality. But I suppose we need to know about the physical assaults committed by the Koran on this poor man in order properly to judge the self-defense claim.

4. Don't miss the wonderful comments of Professor Per Mouritsen, who with one side of his mouth tells us that "blasphemy law is a thing of the past" and with the other tells the Times that in Denmark, "the very idea that religion is taken seriously is the antithesis of being a good citizen." Perhaps Denmark should adopt laws authorizing the state-enforced (but nondiscriminatory, of course) burning of all holy books. It could be done on a state holiday. Call it "Conflagration Sunday." 

February 27, 2017 in DeGirolami, Marc | Permalink

Saturday, February 25, 2017

Should Catholic parishes join the sanctuary movement?

With the Trump administration’s expansion of deportation efforts, there is increasing talk of churches stepping up to serve as “sanctuaries” for undocumented immigrants. With many Catholics suspecting that “the current policies of the administration toward immigrants and refugees is at odds with the clear command of the scriptures to welcome the vulnerable stranger,” Charles Camosy points out that it may become necessary for Catholic parishes to risk fines and prosecution by protecting those subject to deportation. As NPR reports (in a story featuring expert insight from our own Rick Garnett), this clash is already becoming a reality.

This re-emergence of the sanctuary movement raises an important but difficult question: When is it appropriate for the Catholic Church to defy the law? I believe that there may be circumstances over the next four years in which defiance is justified, even obligatory.  But given the Church's support for the rule of law, those circumstances must be articulated with specificity, humility, and restraint.

The “sanctuary” label is thrown around loosely in our current debates. I’m not talking about material support for undocumented immigrants – that is, to me, a clear obligation for Christians that does not turn on one’s immigration status. That’s why past efforts to criminalize the provision of such support were roundly and rightly condemned by bishops. 

I’m referring instead to the provision of shelter to undocumented immigrants for the express purpose of preventing their deportation. Churches have no legal authority to prevent deportation of someone who has sought sanctuary on church property (and never have, in the U.S. at least); any prevention power comes from the understandable reluctance of government agents to carry out enforcement actions on church property or from making it more difficult to find individuals subject to deportation by utilizing church-centered networks of concealment.

As fans of Victor Hugo know, European churches functioned as sanctuaries in a more formal, jurisdictional sense. In my understanding, though, entry into the church was not a permanent shield from the law, but simply a temporary respite during which time the church might intervene on the individual’s behalf or the individual was expected to choose whether to turn himself over to the temporal authorities or leave the country.  It was not a blanket escape from the law’s reach.

More recently, American churches formed a network of sanctuaries in the 1980s for refugees seeking to escape Central America. This was not a categorical response to the Gospel’s call to welcome the stranger; this was a response to a particular problem: it was nearly impossible for these refugees to gain asylum status because the Reagan administration could not admit that their home countries were committing human rights abuses.  Our law prohibited foreign aid to countries committing such abuses, and we were funding the Salvadoran and Guatemalan governments.  Instead of jeopardizing the aid, the Reagan administration classified the Central Americans as economic migrants.  The churches that defied the law in the 1980s were targeting a particular injustice, not vindicating a more general commitment to welcome the stranger.

Faithful Catholics can reasonably disagree about the prudent contours of our immigration laws. The Church does not teach that all immigration laws – and the enforcement of such laws – are contrary to the moral order and should accordingly be defied as unjust.  The Church does teach that the rule of law is important to human flourishing, and that the legitimacy of the political community’s duly elected leaders should be respected.  As such, those instances when the Gospel supports – or even requires – defiance of the law should be spelled out with care.  Perhaps the grounds for defiance are formed when the federal government would seek to deport a parent with dependent children, or to return an immigrant to a country where her life will be in danger, or to deport a person who arrived her as a child and knows no other home.  Whatever the particulars, my only point is that the particulars matter.  A categorical stance of defiance toward the enforcement of immigration laws strikes me as inconsistent with Church teaching.

February 25, 2017 in Vischer, Rob | Permalink

Friday, February 24, 2017

Call for Papers: Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility

Prof. Samuel Levine (Touro) passed on this information, which might be of interest to MOJ readers:

Submissions and nominations of articles are now being accepted for the eighth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  To honor Fred's memory, the committee will select from among articles in the field of Professional Responsibility, with submissions limited to those that have a publication date of calendar year 2017.  The prize will be awarded at the 2018 AALS Annual Meeting in San Diego.  Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: slevine@tourolaw.edu<mailto:slevine@tourolaw.edu%3cmailto:slevine@tourolaw.edu>.  The deadline for submissions and nominations is September 1, 2017.

February 24, 2017 in Garnett, Rick | Permalink

Inazu on the University

For those who have not (yet) read John Inazu's important recent book, Confident Pluralism, you can get a helpful preview of his prescriptions through a short essay he has just posted, Law, Religion, and the Purpose of the University.  Key sentence: "If we can make university a place for MacIntyre’s constrained disagreement and Murray’s warring creeds, we can help to initiate students into the kind of conflict through which they learn to live together rather than fracture through indifference, apathy, or violence."

February 24, 2017 in Vischer, Rob | Permalink

Thursday, February 23, 2017

When is "all-out war" an appropriate political strategy?

I continue to be troubled by many of President Trump’s stated priorities, chosen narratives, and policy decisions.  I confess that I am also troubled by the opposition’s deepening embrace of across-the-board resistance to the Trump administration per se, rather than resistance targeting particular actions and statements.  This tactic did not originate with Democrats in 2017, of course, though it appears that we may witness a significant ratcheting up of the obstructionist tendencies reflected previously in the GOP’s default stance toward President Obama.  

How should Catholics think about, and respond to, a political culture that appears set to cast every disagreement on policies and priorities as part of a no-holds-barred contest of good versus evil? I know that Catholic philosophers and theologians have contributed key insights to our understanding of the moral permissibility/obligation of armed resistance and conscientious objection, for example, but our current climate poses a different question: Under what circumstances should citizens and elected officials withhold all cooperation and support from those elected officials with whom they disagree?  This is not just about resisting the enforcement of enacted laws (though it likely will include that); it’s also about refusing to offer even selective encouragement, build relationships, or compromise across the great Trump divide – and punishing those elected officials who do.  Is across-the-board resistance morally justifiable short of a regime that lacks any political legitimacy (e.g., took power by force) or reflects a sustained and deliberate course of action that conflicts totally with the moral law (e.g., the Nazis)?

I believe that Catholic social teaching on the importance of participatory political structures and practices is premised on an orientation toward optimism, cooperation, good faith, and a willingness to discern the potential for positive outcomes, even from elected officials who lack virtue. I do not believe that a stance of across-the-board resistance to our duly elected officials is morally justifiable unless and until we are at the point at which political revolution is morally justifiable.  That might be simultaneously harshly judgmental and hopelessly naïve on my part.  I’m certainly open to being persuaded that I’m wrong.  This strikes me as a subject that warrants more insight from the Catholic intellectual tradition, and soon.

February 23, 2017 in Vischer, Rob | Permalink

Wednesday, February 22, 2017

Is the Catholic Church Anti-Woman?

That's the question the Aquinas Institute at University of Colorado at Boulder is asking UChicago Law Professor Mary Anne Case and me - tomorrow night.  Apparently, it's a sold out event. 

February 22, 2017 in Bachiochi, Erika | Permalink

Tuesday, February 21, 2017

The Beatitudes: The Trump Rewrite

Minnesota's very own Garrison Keillor (of Prairie Home Companion fame) offers a revision of the Beatitudes in Trumpian style.  Herewith a sample:

The Lord is my shepherd. Okay? Totally. Big league. He is a tremendous shepherd. The best. No comparison. I know more than most people about herding sheep. And that’s why I won the election in a landslide, and it’s why my company is doing very, very well. Because He said, “I’m with you, Donald. You will never want.”

Find the rest at the Washington Post site here.

February 21, 2017 in Sisk, Greg | Permalink

Newman on "the World" . . . and ambition, pride, and work-life balance

It's hard to go wrong, reading Newman sermons, but this one ("The World our enemy") really jumped out at me.  Those of us who are blessed with interesting jobs -- in the academy, law, etc. -- might be able to identify well with some of the temptations he discusses.  A bit:

By the world, then, is meant this course of things which we see carried on by means of human agency, with all its duties and pursuits. It is not necessarily a sinful system; rather it is framed, as I have said, by God Himself, and therefore cannot be otherwise than good. And yet even thus considering it, we are bid not to love the world: even in this sense the world is an enemy of our souls; and for this reason, because the love of it is dangerous to beings circumstanced as we are,—things in themselves good being not good to us sinners. And this state of things which we see, fair and excellent in itself, is very likely (for the very reason {30} that it is seen, and because the spiritual and future world is not seen) to seduce our wayward hearts from our true and eternal good. As the traveller on serious business may be tempted to linger, while he gazes on the beauty of the prospect which opens on his way, so this well-ordered and divinely-governed world, with all its blessings of sense and knowledge, may lead us to neglect those interests which will endure when itself has passed away. In truth, it promises more than it can fulfil. The goods of life and the applause of men have their excellence, and, as far as they go, are really good; but they are short-lived. And hence it is that many pursuits in themselves honest and right, are nevertheless to be engaged in with caution, lest they seduce us; and those perhaps with especial caution, which tend to the well-being of men in this life. The sciences, for instance, of good government, of acquiring wealth, of preventing and relieving want, and the like, are for this reason especially dangerous; for fixing, as they do, our exertions on this world as an end, they go far to persuade us that they have no other end; they accustom us to think too much of success in life and temporal prosperity; nay, they may even teach us to be jealous of religion and its institutions, as if these stood in our way, preventing us from doing so much for the worldly interests of mankind as we might wish.

February 21, 2017 in Garnett, Rick | Permalink

Sunday, February 19, 2017

St. Thomas Amicus Supporting Cert. re. RFRA in the Military

Here's a news release concerning the latest brief filed by the Religious Liberty Appellate Clinic that I supervise at St. Thomas. It's an amicus curiae brief in Sterling v. United States, a cert petition involving the application of RFRA in the military. The petitioner, Marine LCpl Monifa Sterling, "was court-martialed for, among other things, objecting to a superior’s order to remove from her work station three small signs displaying a Bible verse." (It's Isaiah 54:17: "No weapon formed against me shall prosper.") Whether or not LCpl Sterling should ultimately win her case, the Court of Appeals for the Armed Forces wrongly cut off her claims at the threshold, making some bad errors in holding that the order to remove the verses had not "substantially burdened" her religious exercise. As the news item explains:

The courts held that Sterling had not been burdened because she had not shown that the order violated any religious tenet that she display signs, because she had not given clear notice that the signs were religious, and because she had not asked for a religious accommodation through the military’s administrative processes.

The certiorari petition and the St. Thomas clinic’s amicus brief argue that all these grounds for denying RFRA’s application are inconsistent with the statute and precedents. Moreover, they argue, the Supreme Court must review the decision because these grounds would broadly restrict the rights of military personnel—Sikh, Jewish, Christian, and others—to follow their religious practices in the military when it would not undercut combat-readiness or good order.

“The [military courts’] narrow conception of burden,” the clinic’s amicus brief states, “wrongly rejects claims at the threshold and neuters RFRA’s requirement—equally applicable in the military—that substantial restrictions on religious activity must be justified by compelling governmental interests.”

... The organizations joining the brief include several religious denominations; the National Association of Evangelicals; the Christian Legal Society (co-counsel); and the Chaplain Alliance for Religious Liberty, which represents religious organizations certifying 2,600 military chaplains, about 50 percent of those currently serving in the armed forces.

My student Andrew Hanson, class of 2018, did a great job doing much of the drafting on this brief.

Although the odds are always long on a cert petition, keep an eye out for this case. The petition was filed by Paul Clement; there are several other amicus briefs in support; and the justices ordered the government to filed a response after it initially waived responding.

February 19, 2017 in Berg, Thomas, Current Affairs | Permalink

Saturday, February 18, 2017

Solidarity in the era of Trump

What does it mean to practice solidarity at a time marked by intense political divisions and alienation? Emily Esfahani Smith has a thoughtful essay in New York magazine about what it means to belong: 

[A] sense of belonging based on group membership is a false substitute for the real thing. Psychologists say belonging is defined by being in a relationship or part of a community where you are valued for who you are intrinsically. Just like we need food and water to thrive physically, we need to feel valued, needed, and cared for — like we matter to others — to thrive psychologically. Belonging that requires group affiliation is by nature contingent — your value is defined through associating with the group, not through who you are.

Group membership as a false proxy for belonging is nothing new, of course, but it may have taken on a more intense political dimension as we align ourselves according to the views expressed through our social media feeds and reactions to the President's latest [hateful bomb-throwing / plainspoken truth-telling].  Smith offers a beautifully simple example of the mindset to be reclaimed through the story of a restaurant encounter across the political divide.

Catholics have long taught this idea of unconditional belonging via the principle of solidarity -- the "firm and persevering determination to commit oneself . . . to the good of all and of each individual," as John Paul II put it.  This has proven easier to teach than embody, but there's no better time than now to remind ourselves that the most fertile ground in which solidarity can take root is in our immediate sphere of influence, one relationship at a time.  

Solidarity has implications for policy debates, to be sure, but if we're not committed to practicing solidarity in our everyday interactions, it can become a hopelessly abstract description of a worldview, which we then deploy as a bludgeon against those who reject that worldview.  If we value others intrinsically, our capacity for belonging to one another cannot be a function of our political agreement. 

February 18, 2017 in Vischer, Rob | Permalink

Wednesday, February 15, 2017

Camosy on our Post-Truth Culture

Over at Crux -- a relatively new forum for Catholic news, analysis, and commentary edited by the indispensable John Allen Jr. -- Charles Camosy makes some important points in his op-ed on truth in our political culture.  Building on Andrew Sullivan's recent essay on truth-telling in the Trump administration, Camosy locates Trump as just the most extreme example of a post-truth trajectory we've been on for some years (e.g., it depends on the meaning of "is," unborn life as a "clump of cells," "hands up, don't shoot" being "built on a lie").  We are arriving at a moment predicted by Alasdair MacIntyre in After Virtue.  As Camosy reminds us, "[o]nce morality and politics were severed from any common understanding of the good-once the West at least tried to be genuinely plural with regard to our foundational moral principles-we got on a cultural road that could lead nowhere other than where we currently find ourselves."  Camosy calls Catholics to rise up to challenge the post-truth strategy that has become so politically effective, citing the Focolare movement as an example of how we can "create intentionally diverse communities of dialogue - communities in which people with different understandings of the good can at least come together in a shared reality and disagree on the basis of a common set of facts."

February 15, 2017 in Vischer, Rob | Permalink

Sunday, February 12, 2017

Wendel & Luban on religious lawyering

Two of my favorite legal ethics scholars -- Brad Wendel and David Luban -- have joined forces to write an accessible history of philosophical legal ethics.  Breaking down the relatively short (40-year) span of serious theoretical work in the field into two waves, the first grounded in moral philosophy and the second grounded in political philosophy, Wendel and Luban provide a helpful introduction to how scholars have criticized and defended the lawyer's role against broader normative frameworks.  MoJ readers might be especially interested in the treatment of the religious-lawyering perspective, championed most famously by Tom Shaffer.  The authors conclude:

A Christian lawyer may wonder, for example, whether it is possible to be a lawyer without being involved in the fallenness of all human institutions, including the law. Since the answer to questions formulated in these terms would themselves be dependent upon other theological commitments, the influence of the religious-lawyering literature was somewhat limited. Its wider impact depended upon its translation into what Rawls would call public reasons, in which case it risked losing its distinctive prophetic voice.

They're undoubtedly correct to characterize the influence of the religious-lawyering literature as "limited" (at least for now), but I'm not entirely certain that those limits are strictly a function of a failure to undertake a Rawlsian translation.  That's a longer conversation.  In the meantime, you should check out the paper - it is worth your time.

February 12, 2017 in Vischer, Rob | Permalink

Saturday, February 11, 2017

Where are Catholic law schools on the road to character?

I finally got around to reading The Road to Character by David Brooks. Brooks often receives the same criticisms as law professors doing interdisciplinary scholarship – i.e., that our work reflects a glibness and lack of depth, skating from one field of knowledge to another without mastery.  I see Brooks (and many law professors) as providing a needed service in making a broad set of relevant insights more broadly accessible than they would ever be if left solely in the hands of the scholars who have spent their whole careers studying a single field.  What may be lost in depth is gained in currency.  The same is true of his latest work.

I enjoyed The Road to Character for many reasons, but for MoJ purposes, it made me think about the role that Catholic law schools can play in character development.  Brooks points out early in the book that today, “teachers tend to look for their students’ intellectual strengths, so they can cultivate them,” but a century ago, they “tended to look for their students’ moral weaknesses, so they could correct them.”

He recounts asking the head of a prestigious prep school how the school teaches students about character. She responded “by telling me how many hours of community service the students do. That is to say, when I asked her about something internal, she answered by talking about something external.”  Brooks observes that “[m]any people today have deep moral and altruistic yearnings but, lacking a moral vocabulary, they tend to convert moral questions into resource allocation questions.”

What would Catholic law schools say if Brooks asked us how we teach about character? I admit that our public service requirement would be a strong candidate for inclusion in my answer (at least before reading this book).  Law schools also – I hope – work to inculcate the norms and dispositions that are integral to membership in the legal profession.  And some schools (including St. Thomas) are doing more to facilitate self-awareness (through required exercises like Strengths Finder and courses that allot time for structured self-reflection), which is a necessary component of character development.

But should we do more to tap our theological resources? As Brooks explains, for example:

[S]in is a necessary part of our mental furniture [because] without it, the whole method of character building dissolves. From time immemorial, people have achieved glory by achieving great external things, but they have built character by struggling against their internal sins. People become solid, stable, and worthy of self-respect because they have defeated or at least struggled with their own demons. If you take away the concept of sin, then you take away the thing the good person struggles against.

Of all the historical figures Brooks mined for insights on character development, the most powerful (not surprisingly) was Augustine. According to Brooks, Augustine observed that “people can understand themselves only by looking at forces that transcend themselves. Human life points beyond itself.”  For Augustine, at least, there was no substitute for the divine, and “if you think you can organize your own salvation you are magnifying the very sin that keeps you from it.”  I don't know if Augustine's insights are as translatable outside a Christian experience as the structure of Brooks' survey approach implies (take a bit of Dwight Eisenhower here, a bit of George Eliot here, and some Augustine for good measure).  Transformative religious experience is a tricky road-to-character program ingredient for law schools open to students from any or no faith tradition. 

But we cannot ignore Augustine's lessons for education.  Since “you become what you love,” Augustine believed that education should entail the reordering of our loves. Brooks explains that “[w]e don’t become better because we acquire new information. We become better because we acquire better loves.” As such, “[w]hen you go to a school, it should offer you new things to love.”  What are we teaching our students to love?

In the book’s conclusion, Brooks laments the rise of the meritocracy mindset, in which the self is seen as “a vessel of human capital,” rather than the seat of the soul; the self is thus about talent, not character.” The meritocracy has shaped our definition of character, as the term now “is used less to describe traits like selflessness, generosity, self-sacrifice, and other qualities that sometimes make worldly success less likely,” and more often “used to describe traits like self-control, grit, resilience, and tenacity, qualities that make worldly success more likely.”

With the pressure to attract the best and brightest, and to maximize those students’ chances of gainful post-graduation employment, it is not easy for law schools to be counter-cultural when it comes to character formation. But Catholic law schools may be positioned to broaden the conversation in ways that create space for our students to grapple with the classic understanding of character.  The road to character, as Brooks puts it, “begins with an accurate understanding of our nature, and the core of that understanding is that we are flawed creatures.”  Character, in the end, is “a set of dispositions, desires, and habits that are slowly engraved during the struggle against your own weakness.”  Our faith tradition provides a framework through which to conceive of such a struggle, and we (hopefully) have a community that can support the struggle.  We all need, in Brooks’ memorable phrasing, “redemptive assistance from outside,” for we “wage our struggles in conjunction with others waging theirs, and the boundaries between us are indistinct.”

Can we help our students see beyond the external striving that makes up so much of the law school experience and identify the internal struggle that is constitutive of character? If so, what form could that help take?

February 11, 2017 in Vischer, Rob | Permalink

Brennan and Brewbaker on Christian Legal Thought

Here's a new casebook, from Foundation, on Christian Legal Thought, thanks to Prof. Bill Brewbaker and our own Prof. Patrick Brennan.  Congrats!

Check out the table of contents - fascinating materials.  Here's hoping it's adopted widely, and that professors at many law schools -- not just religiously affiliated ones -- consider offering the course.

February 11, 2017 in Garnett, Rick | Permalink

Friday, February 10, 2017

Civil friendship in a digital age

John Allen Jr. is always worth reading, and he has a lovely reflection comparing "two different Americas" through the lens of New York City's "two Dolans" -- the Knicks owner (angry and confrontational) and the Cardinal (open and committed to friendship despite disagreements).  He identifies as a "defining quality of [Cardinal Timothy Dolan] a relentless determination to keep lines of communication open, never to demonize or alienate anyone, and to demonstrate that one can have strong convictions without forever going to war against people who don’t share them."  The roots of this quality are best captured, according to Allen, by a story the Cardinal tells about his dad:

My dad was a very upbeat guy, with a tremendous sense of humor, who would always see the best in people. The kind of people that others didn’t get along with, he liked. It was almost like he wanted to give them a chance … Dad’s philosophy of life was that if you can get somebody on a lawn chair, outside on a Sunday, while he was doing pork steaks in the barbeque pit, listening to Harry Caray and the Saint Louis Cardinals in the background with a bottle of Busch, you could win over anybody. There’s nobody that if you eyeball, and really start talking to … rare would be the person with whom you could not find common ground.

This beautifully conveys the attitude of civil friendship, which calls citizens to live the virtue of solidarity within the political community.  As illustrated by the Cardinal's recollection, we are to assume the good will of our neighbors; not make our relationships with our fellow citizens contingent on political agreement, worldview alignment, or personality compatibility; and recognize that connections across difference and disagreement are intrinsically valuable, not just instrumentally advantageous.  But how do we embody this spirit when so little of our social interaction takes place in any sort of face-to-face venue, much less on lawn chairs around the barbeque pit? 

One obvious (but by no means easy) answer is to reallocate and reprioritize our time toward the face-to-face.  We should do that, early and often, but that will only go so far in terms of shaping the society-wide perceptions of politics- and worldview-driven division and alienation.  The front porch and neighborhood coffee shop are not going to reemerge as the primary venues for engaging our fellow citizens across our differences anytime soon.  As such, it is absolutely vital that scholars, community advocates, clergy, politicians, and neighborhood grill masters spend time thinking and sharing ideas about how we talk to each other across difference, especially when those exchanges are facilitated by technology, not by adjoining back yards.  I mean more than internet etiquette, I think.  Can emerging technologies actually help use digital tendencies to promote face-to-face relationships?  (I'm thinking, for example, of apps like Next Door.)  Can technology make local politics more accessible -- and appealing -- to residents?  Can opinion leaders change the tone and expectations of political engagement, whether in-person or online, and can the public incentivize them doing so?  How can we train young people (and not-so-young people) to embrace vulnerability? 

Realistically, true friendship will not be the aim in most political engagement that takes place in a digital world.  But an orientation toward friendship should still shape that engagement.  That's what civil friendship contemplates; we need to figure out what it looks like today. 

February 10, 2017 in Vischer, Rob | Permalink

Alberto Mora: It's Not Just About How to Protect the Country; It's About How to Protect Our Values

President Trump now has twice stated that, if the United States experiences a terrorist attack on American soil, the blood will be on the hands of the judges who have stayed the effect of his travel ban against seven majority Muslim nations.

190px-Alberto_MoraThis crude attempt to intimidate those committed to the rule of rule into setting aside legal qualms about presidential action closely resembles the post-9/11 argument made by some who wanted legal cover to employ extraordinary interrogation methods – that is, torture – against detainees who might have information about Al Qaeda terrorist plots.  Advocates for the use of waterboarding and other “harsh” measures during the Bush Administration argued that lawyers who timidly resisted with legal objections would then be responsible the thousands of deaths that would be lost in the next terrorist attack. 

During that earlier episode, Alberto Mora, the general counsel for the United States Navy, responded with words that should resonate today:  “The debate here isn’t only how to protect the country. It’s how to protect our values.”

February 10, 2017 | Permalink

Thursday, February 9, 2017

Christian Legal Thought: Materials and Cases (Foundation Press, 2017)

It was a while in the making, but Brennan and Brewbaker's Christian Legal Thought: Materials and Cases will be published momentarily -- that is, any day now -- by Foundation Press, well in time for Fall adoption.  Here is Foundation's description of the book: 

This text examines law and legal institutions through the broad lens of Christian thought, both Catholic and Protestant. The book addresses methodological issues in Christian legal scholarship (What makes legal thought “Christian”?); the relevance of Christian theological doctrines—such as creation, the Christian conception of the human person, the kingdom of God, and the natural and divine laws—for reflection on law; the significance of historical context for Christian legal thought; Christian reflection on important jurisprudential issues and concepts, such as equality, justice, rights, and the rule of law; and Christian perspectives on various legal subjects, such as contracts, torts, and property. The point of the book is less to prescribe what a Christian legal theory should entail in the way of outcomes than to use the Christian faith as a lens through which to understand, and reflect critically upon, law and legal institutions.

Here is where the book's table of contents can be viewed and complimentary copies requested from the publisher.

It was a joy and an honor to collaborate with my dear friend and MOJ-friend Bill Brewbaker, William Alfred Rose Professor of Law at the University of Alabama School of Law, in writing this book.  The process itself was inspiring to the authors, and both Bill and I hope that the finished product reveals something of what the breadth of Christian thought offers to those who think or believe that law is something we should care about and that la should, in turn, convey our care to this needy world of ours.  Not a book about "law and religion," Christian Legal Thought: Materials and Cases is a book, for use in law school and other classrooms, about what Christianity, Catholic and Protestant, can tell us -- and has already told us -- about the ends and the limits of law.  The book does not shy away from differences between Catholic and Protestant thought, nor from historical and ongoing disagreements internal to the Catholic tradition or to the several Protestant denominations discussed; it does, however, look for common ground both among Christians and between Christians and contributors to our (legal) culture who are not Christians. 

I'll blog later more about the topics and themes of the book than the table of contents can reveal.  For now, though, I'd like to thank, on Bill's and my own behalf, all those MOJ bloggers, MOJ friends, and MOJ readers, as well as many, many others, for the guidance and encouragement they gave us in what turned out to be a more challenging project than we had imagined at its outset.  The book's index records just some of many familiar names, many of them familiar from MOJ itself, whose work in the Christian-legal-thought vineyard we have tried to harvest for the purposes animating our book.  We will be grateful to receive suggestions, as well as notices of omission or of corrigenda, for the next edition.  The current edition is obtainable not only from Foundation but also, of course, from here.

Finally, at least for now, I should add that Foundation will be publishing a thick Teacher's Manual to accompany the book. Although  running a little behind the book in the production schedule, the Manual will be out very soon.  We wrote the Manual with the goal, among others, of making it easier for those who otherwise might hesitate to offer a course in Christian legal thought.      

February 9, 2017 in Brennan, Patrick | Permalink

Will anti-Trump = pro-institutions?

In America magazine, Bill McGarvey has an optimistic essay suggesting that the Trump administration is inspiring a defense of institutions that the public had long taken for granted:

The good news? These unprecedented executive actions [by President Trump] have inspired equally unprecedented public outrage. Countless people—men, women, young, old, from every imaginable background—have taken to the streets to protest. People who have never been activists before are getting involved. In this time of institutional diminishment, it has taken the threat to stable institutions that we take for granted for millions to awaken and rise up in their defense.

I hope he's right, but I think it's too early to tell.  One concern I have is that the political movement that ultimately wins out over President Trump's populist nationalism will build on Trump's political strategy and simply replace his substantive policy ideas and worldview.  Trump succeeded, in part, by promoting a cynical view of institutions, which, in his rhetoric, are largely indistinguishable from "the establishment."  Will the Democratic Party's next standard-bearer beat out his or her rivals with a full-throated defense of institutions, or by using Trump's tactics ("the system is rigged") to accomplish different policy goals while doubling down on cynicism toward institutions?  The case for institutions may be too nuanced to get much oxygen  in a political climate where outrage will be the dominant element for the foreseeable future.

February 9, 2017 in Vischer, Rob | Permalink

Wednesday, February 8, 2017

Lewis on "The Common Good" as an "Ensemble of Conditions"

Prof. Bradley Lewis (CUA) shared with me what I thought was an excellent (and succinct) discussion of the concept of "the common good" in modern Catholic Social Thought. Download Lewis on the Common Good (1).  Highly recommended. 

February 8, 2017 in Garnett, Rick | Permalink

Tuesday, February 7, 2017

Pope Francis on Religious Freedom in China

John Allen has a piece on what he calls Pope Francis's "puzzling" remarks on religious freedom in China.  Here's a bit:

In the English translation provided by El Pais, here’s what the pope is quoted as having said: “In China, churches are crowded. In China they can worship freely.”

In the original Spanish, the pope’s statement wasn’t quite that bald. What he said was, “En China las iglesias están llenas. Se puede practicar la religión en China,” which translates as, “In China the churches are full … one can practice religion in China.”

There is, of course, a big difference between saying religion can be practiced someplace, which can imply despite difficulties and dangers, and claiming that one can “worship freely” there.

Nevertheless, the fact that Pope Francis appeared to suggest that the climate for religious freedom in China is basically positive likely will irritate, even outrage, people who know the reality, and who have been working on behalf of the country’s religious minorities.

I hope there will be some clarification coming from the Holy See, or ideally from the Holy Father himself.  It is not merely puzzling, but simply false, to state that "[i]n China they can worship freely."  (Not only is the freedom of religion -- correctly understood to include religiously motivated action in the public square -- not protected, not even the mere "freedom of worship" is in fact respected.)  The Spanish statement -- "one can practice religion in China" -- is, I suppose, technically true, in the sense that one can always practice religion in totalitarian or tyrannical societies . . . if one is willing to be punished for it.  Allen concludes:

Of course, Francis may be engaged in that time-honored Vatican strategy of playing the long game, playing down provocative rhetoric in order to advance the relationship with Beijing, ideally affording Rome greater leverage to achieve positive change. Further, the pope may be concerned that Christians on the ground in China would be the ones to pay the price should he indulge in finger-pointing and denunciations.

Still, those Catholics in China these days behind bars, or who fear ending up there, may be forgiven for wishing that, once in a while, their pope would speak publicly and clearly about their sacrifice.

Whenever that day may be, it certainly wasn’t the El Pais interview.

It certainly wasn't.

February 7, 2017 in Garnett, Rick | Permalink

Happy Birthday to St. Thomas More

Thomas More

February 7, 2017 | Permalink

Thursday, February 2, 2017

Counting on lawyers

If you're a lawyer in need of an optimism boost about your chosen profession, I have an op-ed in today's Star-Tribune that might help:

[I]n the end, Americans like to poke fun at lawyers only until they need one. Few of us will ever sue the president of the United States. Much of our work takes place in a small office, a crowded courtroom, or across the table from a client who may be feeling scared, hopeless, and invisible. If we take the rule of law seriously, we must be cognizant not only of an overreaching executive branch, but of an overreaching landlord, employer, business partner, or prosecutor.

Lawyers, at their best, help remedy disparities before the law. Those disparities can stem from imbalances in political power, social standing, financial resources, or information. At a time in U.S. history when we cannot seem to agree on much, committing to a level playing field before the law may be a great place to start.

February 2, 2017 in Vischer, Rob | Permalink

Polarization and media consumption

Today I presented a lecture at St. Joseph's University titled "Catholic Universities and our Polarized Nation."  I focused on how we can model the concept of civil friendship on campus and beyond.  Among several attributes of a commitment to civil friendship, I highlighted the need for coherence in our political engagement:

Citizens may disagree on a given issue, but even those who do should be persuaded of the internal logic and consistency of the worldview and values that animate our positions. If critics perceived that Catholics were willing to move heaven and earth to stop same-sex marriage, but were not willing to lift a finger to roll back no-fault divorce laws, the perception would be that our objective is not to defend the institution of marriage, but rather to keep gays out of it. Opponents of Trump who deemed him unfit for office because of his treatment of women but rushed to defend President Clinton against the women who accused him of sexual misconduct are vulnerable to charges of incoherence and hypocrisy. A lack of coherence in our political engagement doesn’t just make our advocacy less effective – it promotes cynicism, suggesting that politics is just about power, not about reason or principle.

The prompted a line of questioning from students and faculty after the lecture, asking how our media consumption can promote cynicism and make coherence more difficult.  One student even asked me which sources I rely on for news if I'm trying to maintain a nuanced, evenhanded understanding of events.  In these and other exchanges, I have observed a strong desire among students to be engaged with the world but confused about how to sort through media perspectives/bias in ways that don't boil down to picking a side.  The delegitimizing effect of (real or perceived) bias is exacerbated by the social media platforms through which we are encountering the news -- every link served up with a snarky comment thread.  In past decades, we may have been too naïve in our consumption of news; now, we're raising a generation inclined to believe that everyone reporting the news has an angle, so our choices are either to stop paying attention or choose camps and stay there.  I think we need to devote sustained attention to this problem -- not just the problem of media bias, but the problem of reacting to media bias by dismissing "mainstream" sources of news as tainted to the point of worthlessness.  This problem did not begin with Donald Trump, but he is taking it to a new level with sweeping #fakenews pronouncements.  (Promoting widespread distrust in our institutions may prove to be the most destructive legacy of President Trump.  Can #fakelaw be far behind #fakenews?) 

Savvy media consumption is key to a coherent worldview and the cultivation of empathy for those with different perspectives and life experiences.  If we're going to tackle our society's polarization head-on, that will have to be at the center of the conversation.   

February 2, 2017 in Vischer, Rob | Permalink