Sunday, March 18, 2018
It’s still winter in here in Chicago (fresh snow yesterday), but things are about to heat up as this Tuesday, March 20th, marks the primary election for both parties. The Democratic candidates for governor feature a cast of deplorables when it comes to the issue of abortion and respect for unborn human life: State senator Dan Biss, billionaire and Hyatt Hotel heir J.B. Pritzker, and Chris Kennedy, son of the late Robert F. Kennedy and former president of the Merchandise Mart in Chicago (a former Kennedy family property).
Unsurprisingly, the position of each of these candidates on abortion reflects the extremism of the DNC – that abortion should be available through all nine months, for any reason, and paid for at public expense. Still, Kennedy’s stance is especially disappointing given that he (like other members of his family) outwardly identifies as Catholic.
The abortion issue received special attention here in Illinois this past year as the legislature passed and Governor Bruce Rauner signed into law HB40, a measure that provides for taxpayer funded abortions for state employees and Illinois Medicaid recipients. HB40 also repealed Illinois’ 1975 Abortion Law that would have restored the State’s prohibition against abortion in the event that Roe v. Wade were to be overturned.
Rauner’s decision to sign the law was a controversy in itself. He had campaigned for governor in 2014 as a fiscal conservative who had little interest in social issues. When HB40 (the full text of which appears here) was put forward Rauner promised the Republican caucus, various pro-life groups, and Cardinal Cupich himself that he would veto the bill. He lied to them all. In signing the bill, Rauner joined the dark ranks of many politicians – Republican and Democrat alike – who have betrayed voters – Democrat and Republican alike – who voted for them precisely because of their pro-life stance or their pledge not to advance the abortion license. Rauner’s contemptible behavior generated a substantial backlash and gave rise to a formidable primary opponent, pro-life State representative Jeanne Ives, West Point grad and Catholic mother of five.
But this hideous piece of legislation would never have reached Rauner’s desk in the first place were it not for the active support of many politicians who openly identity as Catholic, including, most prominently, Speaker of the Illinois House, Mike Madigan, and President of the Illinois Senate, John Cullerton. These individuals possess many of the signs of Catholic identity including the pedigree of Catholic education (e.g. Madigan went to St. Ignatius College Prep for high school, Notre Dame for college, and Loyola-Chicago for law school; Cullerton attended St. Francis High School in Wheaton, and Loyola-Chicago for both undergrad and law school) Both men regularly attend Mass, and the cultural/ethnic identity they share features prominently in their campaigns for office. But their public actions reflect a different identity: the culture of death.
HB40 was not an example of a policy matter upon which sincere Catholics could reasonably disagree in the exercise of their prudential judgment (e.g. whether the speed limit should be 55 mph or 65 mph, or a tax deduction should be 2.8 percent or 3.1 percent).
No. This was an instance in which Catholic politicians voted to support the murder of unborn children in the womb and to do so at taxpayer expense. This was a case in which those who claimed to be Catholic defied the teaching and pastoral counsel of the Church by knowingly and deliberately working to enshrine into law that which (as a matter of both faith and reason) the Church teaches is intrinsically evil, and to make the incidence of this evil more frequent through public subsidy.
How did Chris Kennedy approach the controversy over HB40?
On April 20, 2017, while the bill was under consideration in the legislature, Kennedy sent out an e-mail to his supporters and potential donors warning them that Roe v. Wade could be overturned, jeopardizing “a woman’s right to choose.” “Luckily,” he said, “our state is home to activist organizations like PersonalPAC, which have been working on the issue for years.” In the e-mail Kennedy not only criticized Rauner for vowing to veto HB40, he urged his supporters to contact their legislators “to ensure that the bill is passed with a veto-proof majority.”
Following Rauner’s reversal on the issue and his signing of HB40, Kennedy wrote to his supporters again, this time telling them that they should “celebrate” the news that “Governor Rauner signed HB40 into law – protecting Illinois women’s right to access safe, legal, abortion care.” He warned, however, that “Governor Rauner has waged countless attacks on Illinois women.” Kennedy expressed his own position in terms what were quite personal: “I’m raising my three daughters in the midst of this war on women. This is not what I want for my daughters.”
So here we have Chris Kennedy – one of the heirs to the Kennedy name, and perhaps to his family’s political legacy – set forth his vision for the future. The future that he wants for his daughters and for everyone else is safe and legal abortion. Here the standard bearer for the most prominent American family most closely associated with Catholicism in public life says that the Church’s most foundational teachings on public life mean absolutely nothing to him.
These are not the words of a faithful Catholic politician who is struggling – a man caught between the demands of his conscience and the demands of his political party. These are the words of a man whose spiritual and moral commitments and political convictions seem to perfectly align. These are the words of a politician who identifies as Catholic but is actively campaigning to advance the most conspicuous example of barbarism in the world today.
If one had any doubt as to Chris Kennedy’s commitment to the abortion license and his lack of commitment to the Catholicism he publicly espouses, one need only listen to the answer he gave in response to a question posed to him at DePaul University around the same time as the HB40 controversy. A recording of Kennedy’s answer is available on Soundcloud (here). A transcript of the answer follows below:
Question: I’m a Catholic as well… I wanted to know how you reconciled being a Democrat and the abortion thing and also being Catholic and being such a public figure while being Catholic?
Kennedy: Um, on the abortion thing, I think you know we have laws in our country and the laws are the laws. And if if, and I think we ought to protect them. I’m a big believer in science and medicine and I think a relationship should be between a woman and her doctor. I’ve had four kids, my, my wife’s OB, I was in all of those meetings, the woman never even looked at me. Never even looked at me. She was like, I was over there and she talked to her and those were her relationships. I learned a lot from that and I don’t think I have a role in all of that. And I don’t think I should tell other people what we should do either.
Question: You’re not worried about being excommunicated? [Laughter]
Kennedy: I actually like the Cardinal in Chicago. I like the Pope. But if the last guy did it to me I wouldn’t have minded. [Laughter]
Let that sink in for a minute.
Kennedy is so attached to the Catholic Church, so on fire for the faith, so full of the Holy Spirit that it would not bother him to be excommunicated. Moreover, what attachment he does have for the Church seems more driven by personality (i.e. he likes Pope Francis and Cardinal Cupich but didn’t care for Cardinal George) rather than by a belief in the truth of the faith – a truth that, when it comes to the dignity of every human being, he flatly rejects.
Now, of course, Kennedy’s position on abortion isn’t new. It has been peddled by Chris Kennedy's late uncle, Ted Kennedy, by Joe Biden, Nancy Pelosi, Tim Kaine, and dozens of others for many years. Neophyte Catholic Democratic politicians like Conor Lamb dutifully learn to mouth the same line (see here and here for differing perspectives on this fact).
It was given the air of intellectual respectability by Mario Cuomo when he spoke at Notre Dame in 1984 – not because it was intellectual, or respectable, or even coherent (see here), but because it was what supporters of abortion rights who also claimed to be Catholic needed to hear in order to save face. It was celebrated in order to give a ready answer to the obvious disconnect between the foundational premise of any genuinely Catholic perspective on law and politics (i.e. That the life of every human being matters; That the common good cannot be advanced or sustained through the deliberate killing of innocent human beings) and the abortion license as the necessary companion to the new ethic of sexual liberation. Notwithstanding its repetition over the years, the Cuomo position hasn’t improved with age. It was vinegar when it was first put into the bottle in 1984, and the cork has long ago disintegrated.
Now Chris Kennedy does not speak for every pro-choice Catholic politician. Still, the next time you hear a Catholic politician talking about how much he loves his faith, how he loves being Catholic, how his family always celebrated St. Patrick’s Day, how he looks back fondly on his days as an altar boy, and how much he loves the Church for what it does to care for the sick, the hungry, the immigrant, and the homeless, but that he feels compelled to support the legal killing of children in the womb – you would be well within reason to question whether that person understands the Church to be anything other an NGO – one that he happens to agree with on certain “policy” positions and disagrees with on others – rather than an ontological and eschatological reality founded on the truth of Christ – a community that proclaims that it is our responsibility to protect the weakest and most vulnerable, one that fulfills the Lord’s command by calling individuals and the whole world to repentance.
Moreover, the next time you hear a Catholic bishop say that his constituent, so-and-so politician, is a good man or a good woman, a person of good faith and good character, and a good Catholic in full communion with the Church, who is struggling to serve the common good (as can be seen in his or her other efforts "Just look what he tried to do on gun ownership and immigration!"), even as he or she votes in favor of the killing of unborn children in the womb and at public expense, you would be well within reason (and your rights within the Church) to question how that can be so, and if it is not, who is served by the lie and why.
March 18, 2018 | Permalink
Wednesday, March 14, 2018
Sunday, March 11, 2018
Wow. I suppose we should welcome the candor, when a celebrity atheist and the former Archbishop of Canterbury (i.e., a prelate of a religious institution founded in order to suppress and expropriate the Roman Catholic Church) oppose allowing Catholic schools to open and expand. You know, because it would be "divisive" to respect religious freedom.
There's a new paper posted on SSRN, that's forthcoming (sigh) in the Yale Law Journal, called "The New Law of the Child." Here's the abstract:
This Article sets forth a new paradigm for describing, understanding, and shaping children’s relationship to law. The existing legal regime, which we term the “authorities framework,” focuses too narrowly on state and parental control over children, reducing children’s interests to those of dependency or the attainment of autonomy. In place of this limited focus, we envision a “new law of the child” that promotes a broader range of children’s present and future interests, including children’s interests in parental relationships and nonparental relationships with children and other adults; exposure to new ideas; expressions of identity; personal integrity and privacy; and participation in civic life. Once articulated, these broader interests lay the foundation for a radical reconceptualization of the field of children and law. We propose a new tripartite framework of relationships, rights, and responsibilities that aims to transform how law treats children and their interactions with others. The framework addresses children’s needs for state and parental control in many instances while also moving beyond those concerns to foster children’s interests in the here and now.
So far, it's (basically) the same move we've encountered before, perhaps most notably from James Dwyer, which involves expanding the basket of rights and "interests" the pursuit and protection of which is invoked to justify expanding state power over children's lives at the expense of parents' natural rights. I hope all those who read the paper will also read Melissa Moschella's new book, "To Whom Do Children Belong?" or, if they are pressed for time, this golden-oldie of mine:
Many States exempt religious parents from prosecution, or limit their exposure to criminal liability, when their failure to seek medical care for their sick or injured children is motivated by religious belief. This paper explores the question what, if anything, the debate about these exemptions says about the state's authority to override parents' decisions about education, particularly religious education. If we accept, for example, that the state may in some cases require medical treatment for a child, over her parents' objections, to avoid serious injury or death, should it follow that it may regulate, or even forbid, a child's religious training or religious-school education to prevent an analogous, though perhaps less tangible, harm?
The Supreme Court famously proclaimed, in Pierce v. Society of Sisters, that parents enjoy a fundamental right to direct and control the education of their children, but do we really accept, or even understand, the premises, foundations, and implications of this pronouncement? Recent calls for a thicker liberalism and for the harnessing of education to create truly liberal citizens make it all the more important that we take Pierce seriously. And if we do, it is suggested that state functionaries, guided and restrained by a proper humility about their authority and competence, should override parents' educational decisions only to prevent harm, carefully defined, to a child. The problem is, how do we define harm. This paper proposes that the content of religious instruction, traditions, or beliefs should not be viewed as harmful in the sense necessary to justify government second-guessing or supervention of parents' decisions about such instruction. In a free society, one that values religious freedom, the state should not entertain, let alone enforce, a belief that children would be better off without religious faith.
Saturday, March 10, 2018
Monday, March 5, 2018
The much-anticipated Liberalism and Christianity conference, sponsored by the Harvard branch of the Thomistic Institute, took place at the Harvard Museum for Natural History this past weekend. Though more than a few were kept away by severe weather on Friday -- including Helen Alvare who was to give one the principal talks, and Patrick Deneen, whose new book was on the lips of many -- the conference drew more than 300 participants (including a hearty portion of really smart undergrad and graduate students who asked most of the questions).
Remi Brague, the noted French historian of philosophy and professor emeritus at the Sorbonne, kicked the conference off with his keynote "Made Free for Freedom." His talk, inspired by St. Paul's "Christ has made us free for freedom" was a walk from biblical antiquity into modernity, with a focus on the primacy of freedom for both. The trouble with liberalism is not liberty, he said, but liberty as an 'ism' --an aim in itself. The ancients (he called upon St. Paul, Plotinus, and Augustine) understood freedom as sought for the sake of the Good. This view was not one laid out in argument (before Augustine), but substantively presumed. In modern times, of course, the Good is dropped and freedom--as liberation--becomes a goal in itself.
This quote from T.S. Eliot's Idea of a Christian Society captures much of his talk (and was the high point, in my mind): "[liberalism] is something which tends to release energy rather than accumulate it, to relax, rather than to fortify. It is a movement not so much defined by its end, as by its starting point; away from, rather than towards, something definite. Our point of departure is more real to us than our destination..."
Fr. Dominic Legg, OP (graduate of Yale Law and incoming director of the Thomistic Institute) opened the next morning with a marvelous presentation of St. Thomas on law. He especially sought to distinguish St. Thomas' account of justice as first in God and particularly in God's divine intellect, as up and against later voluntarist conceptions of law. During the Q/A, he recommended a book that 15 years ago had changed his life (and is one of my very favorite books of all time), Servais Pinckaers' Sources of Christian Ethics. Fr. Pinckaers, also a Dominican, describes masterfully the movement from Thomas to Ockham to our current misunderstanding of freedom. This movement was the basic content of the first part of Fr. Legg's presentation.
I was especially interested to hear that Fr. Legg has discerned in Thomas a theory of individual rights. Most, he said, think the creation of individual rights is from the Enlightenment (including Deneen and Hanby, but prior to them, my teacher, Fr. Ernest Fortin). But Thomas has a such theory, even if it is a different conception of individual rights from that of the various Enlightenment thinkers. Thomas thought that what is due someone in justice is a subjective 'ius' (right) that an individual possesses and can assert. These rights, however, are never abstracted from the common good or a teleological ordering of the person and community toward God. Rights are merely a function of justice, directed to the common good, not the whole of it. But, acknowledging what is due individuals is part of what makes a city just. Rights are thus indispensable to a just regime.
Importantly, he noted that Enlightenment thinkers (and those in their wake) may have thought they were dispensing with the "good," but that every rights claim is aiming at some conception of the good, even if smuggled in under claims of neutrality (ie, Rawls). The problem is not so much rights then but the underlying vision of the good that is is deeply contested in our society. That question -- concerning the substantive conception of the good underlying each theory (or claim) of rights -- is the real conversation we should be having. Bravo!! I will post his paper on Thomas on rights when I acquire it.
The next portion of the day was when Helen was to have spoken, on the family no less. I think this explicit family perspective was definitely lacking, and Helen was the best person for the job. Hopefully she will publish the remarks she had prepared (and I will post). In her place, and to the great interest of participants, Harvard's Adrian Vermeule and Notre Dame's Phillip Munoz offered contrasting perspectives on liberalism, and on its influence over the American Founding. Adrian pulled from his deeply intelligent and thought-provoking review of Deneen's book in American Affairs. (Instead of trying to summarize it in this already long post, I will just suggest strongly that you read it in full.) Phillip, in addition to stirring the audience to laughter several times (boy, is he funny), also offered evidence that the Founders did not, on the whole or in the majority, share the view of liberalism that can fairly be imputed to Hobbes and Mill. Their shared view, rather, was that natural law -- thick on the deeply Christian ground in those days -- bounds and constrains natural rights. If there was a detente between the two panelists, it was in the view that liberalism ala Hobbes is quite wrong-headed, but that perhaps the Founders were up to something else. Bravo on this score as well!
In an effort to end this post, I'll skip Candace Vogler's talk on JS Mill and sex and gender, and head right for the final panel. Adrian was seated there too (as per original plans), joined by Rusty Reno and Princeton's Margarita Mooney. Reno offered a sophisticated response to Vogler's presentation of Mill, suggesting that though Mill wanted to encourage self-cultivation and self-possession (goods in themselves), his form of liberalism qualified by the harm principle tends to provide more advantages to the talented/well-off than the untalented and more disadvantaged otherwise. This is a theme of Rusty's and a really important one. The experiments in living that Mill endorsed (eg, alternative family structures) provide opportunities that the talented/wealthy seem to roll with, but that when embraced across society, lead to disastrous outcomes, especially for the poor. It's also one thing to redistribute economic advantages, say, through tax policy, but it is very difficult to redistribute cultural advantages. And, without a Christian impulse, the elite perhaps see no reason to sacrifice (apart from money) to the untalented. (The proof positive of this analysis can be seen in Richard Reeves' new book, Dream Hoarders.) Rusty then concluded that the true source of decadence is our unregulated sexual culture, and that we ought to engage in a moral project of cultural re-regulation. Hear, hear! [Original misspelling corrected.]
Margarita Mooney spoke of the importance of including other -isms in our critique (social Marxism and Freudianism) which she judged, calling upon the work of Augusto Del Noce, have influenced our modern situation perhaps as much as liberalism. She also thought it essential to report on the truly positive good people are doing - building new schools, starting new movements, changing their lives. Her important practical comments were taken up in a more spiritual bent by the exquisite concluding remarks of Fr. Thomas Joseph White, O.P. I cannot begin to do these final remarks justice, so will post when I hear they are available.
Senator Tammy Baldwin and her staff are attacking a district court nominee in Wisconsin based on critical comments he made about Justice Kennedy in a blog comment and a couple of radio interviews. The focal point of the attack on nominee Gordon Giampietro is criticism of the opinions in Obergefell v. Hodges and Lawrence v. Texas:
"Senator Baldwin believes serious questions remain about whether this nominee would be able to serve as a fair and impartial judge on a federal court," Baldwin spokesman John Kraus said.
Kraus focused on Giampietro's comments on the U.S. Supreme Court's decision on same-sex marriage. In 2015, Giampietro said of Justice Anthony Kennedy's ruling, "It's not really legal reasoning" and added that Kennedy "went off the rails years ago" in a decision striking down sodomy laws.
“This nominee for a lifetime appointment to the court attacked a majority decision from the Supreme Court, written by Justice (Anthony) Kennedy, and said it could be ignored," Kraus added. He said Giampietro should have made this information available to the nominating committee.
Really? C'mon. There's nothing disqualifying about attacking "a majority decision from the Supreme Court," especially one authored by Justice Kennedy. It's as American as America itself.
Conveniently, Mitch Berman and David Peters at Penn have just posted to SSRN a new paper about Justice Kennedy. They defend him as a principled jurist. But to set up their defense, they collect criticisms in Part I. Here are some evaluations of aspects of a range of AMK opinions for the Court:
- Parents Involved is "cryptic." (Jonathan Fischbach)
- LULAC is "bizarrely unclear." (Michael S. Kang)
- Boumediene is "Kafkaesque." (Robert J. Pushaw, Jr.)
- Casey is "unintelligible." (Michael Stokes Paulsen)
- Lawrence is "remarkably opaque" (Cass Sunstein) & "almost incomprehensible" (Steven Calabresi).
- Abbasi is "wholly unsubstantiated," "staggeringly wrongheaded" and, "for lack of a better word, nuts." (Stephen I. Vladeck)
- Alden is "not only intellectually insupportable ... but ... simply wrong" (Louise Weinberg); also, "nothing short of fanciful" (Daniel Meltzer).
- Citizens United is "simplistic" and "preposterous." (Ronald Dworkin)
- Gonzales v. Carhart "refuses to take Casey and Stenberg seriously.” (Ruth Bader Ginsburg)
Senator Baldwin and her staff might not recognize all the names here (I don't), but these critics plainly represent a wide range of views on other matters. Whatever one thinks of particular opinions, Justice Kennedy has at one time or another driven almost all of us to conclude he's "gone off the rails" in some respect or another. This doesn't disqualify. It just shows that we're paying attention.
Friday, March 2, 2018
I have to admit, when I first clicked on, and then started reading, this review of Clare Chambers's Against Marriage (OUP 2017), I was confident that it was a kind of Larry-Solum-level-genius parody of contemporary Rawlsian political-liberalism moves. Alas, it's not. Both the review (and, assuming the review is accurate, the book) take what I can only regard as a dangerous, even tyrannical turn. For example, "Chapter 6 distinguishes the marriage-free state from the marriage-free society and considers the circumstances under which the state might be justified in intervening in private marriages. Here Chambers clearly distinguishes her own position from a libertarian one by focusing on the state's role in preventing harm to vulnerable populations and to ensuring discriminatory practices are prohibited in the private sector." And, "[t]he latter chapter balances the need to protect women's (and children's) rights with the need to protect religious freedom, deftly arguing that religious freedom cannot include the right of religious leaders to discriminate against members of their own religion." Is this really what's coming? Is this what "liberalism" is coming to (or, perhaps, as Patrick Deneen would argue, it's always what it was or was on the way to becoming).
Monday, February 26, 2018
There's been a fair bit of commentary -- here at MOJ and elsewhere in the Catholic interwebs -- about the Janus case, which presents the question (as I'd put it) whether the Constitution permits governments to require public employees to support public-employee unions and their activism as a condition of public employment. Here is the transcript from today's oral argument. (Those MOJ readers who went to law school will have flashbacks, during the questions of certain justices, to those awkward moments in law-school moot-court events when one was expected to respectfully answer questions from "judges" who hadn't read the record, the briefs, or the relevant precedents.)
MOJ readers might also be interested in this exchange between Distinctly Catholic's Michael Sean Winters and Bench Memos's Ed Whelan. Whelan has, in my view, the better of the argument. Particularly wrongheaded is MSW's embrace and praise of Bishop David Zubik's entirely wrong argument:
The man who brought the lawsuit took a union job, agreed to the union terms, and then sued on free speech grounds because he objected to the union's political positions. It's similar to someone who has taken a job in the Catholic Church arguing that he should be allowed to keep his job while also publicly advocating for abortion. He knew the terms of employment when he accepted them.
This is (all due respect) just wrong. The constitutional question is whether the First Amendment permits the government to make endorsing the "union's political positions" a condition of employment; it's not about what churches may or may not make conditions of church employment. This is simply sophistry. (And, no, it's not "libertarian" to point out "sophistry.")
This piece, by Archbishop Chaput, is timely, covers a lot of ground - the Florida school shooting, the 2016 election, immigration and change, capitalism and development, church-state relations, sexuality, mercy, moral anthropology, and a long quote from Charles Camosy -- and is well worth a read. A bit:
. . . Polanyi showed how the industrial revolution disrupted and reorganized the entire fabric of English life. It revolutionized the structure of the British economy. That much was obvious. But in doing so, it also reshaped every other aspect of the nation’s culture — from family relations, to politics and education, to the use of time, to patterns of thought and behavior.
The same thing is happening right here, in our own country, in our own time and space. A consumer market economy tends to commodify everything and recast all relationships as transactional. In practice, it depersonalizes a culture by commercializing many of our routine human interactions. It also very easily breeds a practical atheism by revolving our lives around the desire and consumption of new things. . . .
There are no new paradigms; no new hermeneutical principles; no revolutions in thought; and no possible concordats with the world and its alibis, that can the erase the radicalism and liberating beauty of Christian anthropology.
Key to that anthropology is the nature of our sexuality, expressed in the complementarity of male and female, and ordered to new life and mutual support. Human sexuality and relationships have a God-given purpose. That purpose is a source of true freedom and joy. It can’t be changed, or reinterpreted, or medically reimagined away.
This is the truth about who we are as embodied creatures, no matter what our personal confusions or weaknesses might be. We need to affirm that truth for our own sakes, and the sake of our whole society, because the meaning of our humanity depends on it. And while truth spoken without love and patience can be a weapon, not speaking it is a form a theft. Mercy without truth is not mercy.
The Supreme Court hears oral argument this morning in one of this term's major First Amendment cases, Janus v. AFSCME. Some of the questions posed about the case and especially the issues raised in this brief by the USCCB have been thoughtfully explored in a series of posts by Ed Whelan (e.g., here) and Michael Sean Winters (e.g., here).
I wrote about Catholic social teaching and public sector unions back in 2016 when the Supreme Court heard oral argument in Friedrichs v. California Teachers Association and am reposting that below. Suffice to say that nothing in the USCCB brief or in the commentary about it causes me to change my views. It's worth emphasizing that Janus is about a narrow if important bit of constitutional doctrine concerning compelled subsidies and speech in the public employment sector. The USCCB brief and commentary supporting it mistakenly, in my view, kick up a host of misleading (because usually failing to note the important distinction between the public and private sectors) and irrelevant (because not engaging the legal questions and the reasoning--or lack thereof--in Abood) issues about right to work laws, civil society, intermediate institutions, Bowling Alone, and so forth. More to come after oral argument.
I was hoping someone would give me a chance to say something about Monday’s oral argument in Friedrichs v. California Teachers Association, and MOJ-friend Michael Sean Winters graciously obliges over at his blog in a post about the latest “assault” on unions. Michael Sean and I have been around before on some issues about Catholic social teaching and unions, so why stop now?
One can, as I do, subscribe to the Catholic Church’s teaching from Rerum Novarum on about the role of unions in civil society, appreciate much in the insightful paper by Lew Daly to which Michael Sean cites, and yet think all of that has nothing to do with the issues in Friedrichs.
For starters, I think Michael Sean is a little cavalier in writing that Friedrichs is “not really about the First Amendment at all.” That’s a conclusion, not an argument. And on the law of the First Amendment, Friedrichs poses some hard questions (unless, I suppose, one is prepared broadly to countenance compelled subsidization of speech). I am not sure the point of Michael Sean’s initial hypotheticals about violations of trade secrets and trademarks, but the issue in Friedrichs strikes me as quite different. No one doubts that violations of trade secrets and trademarks can be sanctioned. But can the state require as a condition of public sector employment that a non-union member pay an agency fee? That’s a difficult question, and the answer the Court gave almost 40 years ago in Abood v. Detroit Board of Education is badly reasoned (as just one example, by assuming the constitutionality of compulsory payments based on two private sector union cases, Railway Employees’ Department v. Hanson and Machnists v. Street, that dealt with the First Amendment issue in a sentence and not at all, respectively). A cite to Rerum Novarum doesn’t resolve the free speech question.
And then there’s the basic distinction between private and public sector unions. The permissibility of agency dues in the private sector isn’t at issue in Friedrichs (conceded at the outset of oral argument by Michael Carvin), so it’s a little hard to see how this is an all-out “assault” against unions. Nor does Friedrichs question the permissibility of agency shop arrangements in either the public or private sector, only whether non-union members must subsidize a public employee union’s political activity—so the arguments in Michael Sean’s penultimate paragraph about union formation seem to me beside the point. The line between collective bargaining and political activity for public sector unions is impossible to draw, and that’s the core of the plaintiffs legal argument against the compulsory agency fee. As Justice Kennedy put it at oral argument:
The union basically is making these teachers compelled riders for issues on which they strongly disagree. Many teachers think that they are devoted to the future of America, to the future of our young people, and that the union is equally devoted to that but that the union is absolutely wrong in some of its positions. And agency fees require, as I understand it—correct me if I'm wrong—agency fees require that employees and teachers who disagree with those positions must nevertheless subsidize the union on those very points.
Finally, could I make a plea here for scholars working on Catholic social thought to spend a little time confronting the classic argument by Ralph Winter and Harry Wellington about public sector collective bargaining before waxing rhapsodic about Rerum Novarum and the unalloyed blessings that unions provide? As Rick Hills put it a while ago, the inelasticity of demand for their services and manipulation of the political process to their advantage means that public employee unions are differently situated than, say, trade unions. There are all sorts of bad policies created when public union-controlled services (prisons and public schools in some areas, for example) are consumed largely by lower income people, which is, at least arguably, part of the reason why we have so many prisons and such bad public schools (as Rick points out, the prison guard union in California was a powerful lobby for "three strikes, you're out" life sentencing). I hope the plaintiffs prevail in Friedrichs because that’s the right legal outcome, but I also think it would be a small step to correcting some of our injustices and policy distortions.
Thursday, February 22, 2018
In the early 1990s, I was fortunate to be a student of the great Catholic scholar, Wallace Fowlie. Professor Fowlie's particular area of expertise was French symbolist poetry, in particular Rimbaud and Mallarmé (he has an important set of translations of the former). But he was also deeply interested in the work of the symbolist-influenced Catholic poet, Paul Claudel and the (complicated) philosopher, Henri Bergson.
I took various classes on Dante and Proust with Professor Fowlie. I also remember visiting with him on several occasions in his home (at that time, in a quiet retirement community; he was already quite advanced in age) and chatting with him about his extraordinary life. On one memorable occasion, in 1995, just before I graduated, I recall driving him to a wonderful and simple Easter service.
I thought about Professor Fowlie, who passed away in 1998, twenty years ago, in reading a little pamphlet of his published in 1994 titled, "Dante Today: A Personal Essay." Here is a passage of it for Lent, concerning an encounter in his youth with T.S. Eliot:
The year was 1932-33, when Eliot came to Harvard to give the Charles Eliot Norton lectures. These were public lectures in the evening. They were published in book form in 1931: The Use of Poetry and the Use of Criticism. In addition to these public lectures, Eliot gave a course on "English literature from 1830 to 1930," to fifteen students. Fourteen of these students were English majors. I was the fifteenth, just barely admitted since I was a French-Italian major.
I had two good friends in that class which was held on the second floor of Sever Hall. Before Eliot arrived in Cambridge, we had worked hard on "The Love Song of J. Alfred Prufrock" (1915) and on "The Wasteland" (1922). When I first read "Ash Wednesday" in 1930, it seemed to me a religious poem, a poem of peacefulness finally reached after the earlier poems of man's human dilemmas. We were proud to have Eliot there and hear him speak to us each week. We became almost childishly curious about him, about his life, and we developed the outrageous habit of following him in the street to see where he walked, where he ate, what he ate. If he went into the Coop, what did he buy? He had announced his allegiance to the Anglo-Catholic branch of the Episcopal Church, and we suspected that he attended Sunday services in the Church of St. John the Evangelist, on the back of Beacon Hill in Boston. That turned out to be true.
When Christmas Eve came, the three of us decided to attend midnight Mass at St. John's where the singing was Gregorian chant, directed by a skilled organist, Mr. Titcomb. We hoped, of course, that Eliot would be there. He was there in the first row, seated beside his colleague-friend Theodore Spencer. We took our places in the sixth row behind them. It is a small church, and that evening it was filled. It was snowing outside. The ladies wore fur coats. The liturgy was performed slowly and reverently, and the Mass was beautifully sung by the Cowley Fathers, an Anglican monastic order.
At the end of the service, the congregation stood and filled immediately into the one aisle that led to the entrance. The three of us decided to wait in our row until Eliot and Spencer passed us. Then we took our places somewhat behind them. Between us and Eliot, we noticed in the very slow moving crowd, a tall fellow we had seen in the Harvard yard. He was a graduate student. The church was quiet and we filed out. Suddenly, this student, whom we did not know, opened his mouth and recited in a strong voice a line in Italian, which he obviously directed at Eliot. We could see Eliot cringe and try to move faster in order to get out of the church. When we finally got outside, Eliot and his friend had disappeared into the falling snow, and the graduate student also had disappeared.
When I returned to college after the Christmas holiday, I ran into the student one day in the yard. I spoke to him then. "Excuse me. After midnight Mass on Christmas eve, I heard you recite a line of Italian. You seemed to direct it to Mr. Eliot. May I ask you what that line was? Possibly Dante?" He looked at me in a somewhat scornful way, and asked: "Haven't you read Guido Cavalcanti?"
"No, I haven't read Cavalcanti."
"Well, let me recite it to you and translate it. Perch'io non spero di tornar giammai. 'Because I do not hope to turn again.' Do you recognize the translation?"
This time I was able to answer in the affirmative. And I said, "Yes, it's the first line in Eliot's Ash Wednesday." "But," I continued, "Why did you do that in the quiet of that church? It disturbed Eliot."
"I wanted to tell that Old Possum that I knew he had stolen his first line from the first line of a Cavalcanti poem."
Abruptly he left me then. And I, both shocked and somewhat amused, made my way to Widener.
Wednesday, February 21, 2018
On Friday, March 23, in Minneapolis, the Law Journal at St. Thomas is sponsoring a symposium on "Religious Freedom and the Common Good." In past work, I've explored the idea that common-good-related arguments can be an important, overlooked ground for religious freedom in a society that needs to be persuaded of the importance of that principle. This conference will push that exploration further.
The program will bring together (1) social scientists who measure the contributions of religion to society and (2) legal scholars, advocates, and policy analysts interested in religious freedom--for an interchange on how the two disciplines can learn from each other in the service of productive initiatives. Co-organizer is the Baylor University Institute for Study of Religion (ISR).
So far just a Facebook link, so I'll post at a bit of length. Speakers include:
- Brian Grim (lunchtime speaker), founder of the Religious Freedom and Business Foundation, whose widely-reported study quantifies the socio-economic value that religion contributes in the US as $1.2 trillion yearly
- Byron Johnson, director of the Baylor ISR and one of the leading sociologists on the empirical contributions of religious organizations
- Anthony Picarello, general counsel and associate general secretary for the U.S. Conference of Catholic Bishops (which has made "freedom to serve others" an important part of its religious-freedom advocacy)
- Jackie Rivers, an expert on the social role and contributions of African-American churches
- Melissa Rogers, now at Brookings, who handled issues concerning faith-based institutions for the Obama White House
- Sahar Aziz, Rutgers Law School, an expert on Muslim organizations, anti-terrorism efforts, and religious-freedom issues
- Stanley Carlson-Thies, founder, Institutional Religious Freedom Alliance
- Angela Carmella, Seton Hall Law School, an expert on Catholic social thought and religious freedom
- Mark David Hall, political scientist at George Fox U., expert on the framers' understanding of religion and the common good
- Dana Mataic (with Prof. Roger Finke, Penn State U.): on the causes and consequences of religious-freedom restrictions around the world
- Yours truly
Here's a fuller description:
For readers in and about Chicago: The theology department at Loyola U. is sponsoring a program on "The Question of Religious Freedom," on Monday, March 12 (evening keynote), and Tuesday, March 13 (day-long) at the downtown campus. Speakers include Barry Hudock, author of Struggle, Condemnation, Vindication: John Courtney Murray’s Journey toward Vatican II; Robin Lovin, one of the nation's most distinguished mainline Protestant social ethicists; and three legal scholars, Kathleen Brady, Leslie Griffin, and yours truly.
From the description:
In recent times, religious freedom has reemerged as a key and controversial issue within the United States and around the world. With a desire to contribute to this essential conversation, we have invited prominent scholars to discuss and analyze religious freedom as it relates to issues of social polarization, peaceful coexistence, non-discrimination and the common good. We also will look back to the contribution of John Courtney Murray, S.J. to Dignitatis Humanae, the groundbreaking document on Religious Freedom issued in  by the Second Vatican Council.
I'm looking forward to the program: an examination of Murray's legacy on this issue, a wide-ranging set of current perspectives, an important set of themes ("social polarization" et al. above), and ample time allocated for the speakers and audience to air and explore those themes thoroughly.
Monday, February 19, 2018
As Michael Perry noted a few days ago, the USCCB filed an amicus brief in the Janus case, which does not -- contrary to the suggestion in the USCCB's brief -- present the question whether right-to-work should be constitutionalized in the private sector, but instead asks the Court to decide whether the First Amendment permits governments to condition public employment (employment that is, collective bargaining aside, heavily regulated and protected) on affiliating with a political association (i.e., a public-sector-employee union) whose activities and expression one opposes.
In my view -- and I've gone through my reasons here at MOJ many times (Ed.: Talk about an understatement!) it is a mistake both to (a) think that strong support rightly expressed in Catholic Social Thought for the dignity and rights of workers means that Catholics should support the policy agenda of today's unions (e.g., opposing school choice) and (b) to fail to distinguish between the labor-capital dynamic, on the one hand, and the taxpayer/government/party/public-employee dynamic, on the other. But, I understand, many intelligent Catholics disagree with me, though I cannot help being frustrated that some persist in the tired and inaccurate claim that my view is somehow "libertarian" or (shudder) "neo-liberal." In any event, and notwithstanding my huge admiration for the General Counsel, I think the challengers' legal arguments are the stronger ones. And, here (in City Journal) is a helpful and, in my view, compelling analysis of the case.
All that said, here is a statement from Bishop Thomas Paprocki (Springfield), responding to the USCCB's brief.
Saturday, February 17, 2018
Princeton University, where I have had the privilege of teaching for more than thirty-two years, recently received a black eye in the media when Anthropology professor Lawrence Rosen cancelled his course "Cultural Freedoms: Hate Speech, Blasphemy, and Pornography" after several students were offended by his saying--purely and unmistakably for bona fide pedagogical purposes--a racially derogatory word. Here's an update from Reason magazine on the matter.
I stress that Professor Rosen's mentioning of the word, which he did several times (as he had done in previous classes on culture and free speech with no adverse reaction), was pedagogical. No one was in any doubt about that. No one could possibly have been in any doubt about it. The idea that Lawrence Rosen, whom I have known since I arrived at Princeton in 1985, is a racist is beyond risible. He is a person of decency and upright character in every way. There isn't the slightest trace of animus in the man. He treats all of his colleagues and students with respect. As it happens, he is also one of the Princeton's most brilliant and eminent social scientists. He is MacArthur genius award winner, among countless other distinctions. It is painful for me personally, as I know it must be in even greater degree for him, to see his name dragged through the mud for allegedly (as some media misleadingly put it) "using a racial slur."
It is important for people to know another thing about the incident. Princeton did not pressure or even ask or encourage Professor Rosen to cancel his class. No pressure was placed on him by colleagues or administrative officials of the Department or the University. Princeton's president, Christopher Eisgruber, strongly defended Professor Rosen against the smears to which he was subjected and expressly and forcefully supported his right to use the words he deemed necessary and suitable to accomplish his pedagogical mission in teaching about hate speech and related issues. The same is true of Professor Carolyn Rouse who chairs Princeton's Department of Anthropology. Neither President Eisgruber nor Professor Rouse deserves to be counted among those college and university administrators around the country who have brought shame on themselves and their institutions by caving in to demands for speech policing and the curtailment of academic freedom. Quite the contrary. Both deserve high praise for standing up for freedom of expression on campus and other core academic values.
Why did Professor Rosen elect to cancel his course? I do not know the whole story, but I do know that he made the decision in light of his judgment that cancellation was in the interests of the students who had enrolled in the course. I do not know how that could be, but I haven't the slightest doubt that this was in fact Professor Rosen's sincere judgment and motivation. He is not a coward and would never yield to intimidation tactics. I know that some students who privately told Professor Rosen they wanted the course to continue were too afraid to speak out publicly. Evidently they feared being defamed as "racists" or "bigots." That makes me sad. As Professor Rosen told his students, the surest way to lose freedom is to remain silent in the face of efforts to squash it.
February 17, 2018 | Permalink
Thursday, February 15, 2018
My colleague, Mark Movsesian, and I are pleased and honored to announce the fourth biennial (how many years is that?) Colloquium in Law and Religion, to be hosted at St. John's in fall 2018. This seminar invites leading law and religion scholars and judges to share their work in law and religion before a small audience of students and faculty. Here is the slate of speakers:
September 17: Professor Robert Louis Wilken (University of Virginia, Emeritus)
October 1: Professor Philip Hamburger (Columbia Law School)
October 15: Professor John Inazu (Washington U. St. Louis School of Law)
October 29: Professor Micah Schwartzman (University of Virginia School of Law)
November 12: The Honorable Diane S. Sykes (U.S. Court of Appeals for the Seventh Circuit)
November 26: Professor Vincent Phillip Muñoz (University of Notre Dame)
To read more about past colloquia, please see these links:
Wednesday, February 14, 2018
We can't serve dishes made with quick-melting Ched-O-Bit any more, so I'll be running out later today to pick up some tomato soup instead. No need to wait, though to enjoy Amy Welborn's "Gallery of Regrettable Lenten Food."
A taste of the advertising copy: "Is Lent a Problem? 'No!' ... says Chef Ernest Cuony of New York's Fashionable Hotel Barclay. 'You've shown me, Mrs. America, that it's not necessary to sacrifice deliciousness and flavor in order to 'toe the mark' during Lent. As a matter of fact, your pure, wholesome, delicate-flavored WESSON OIL gives--how you say it?--'oomph' to even every-day dishes.'"
Monday, February 12, 2018
Fr. Drew Christiansen, S.J., has this piece in America, defending "the Holy See’s possible rapprochement with the China’s Communist government on the appointment of bishops." I'm among those who has expressed grave reservations about such a move and I continue to regard the attitudes expressed by its defenders as quite naive. To be clear: to harbor and express such reservations is not to throw in with those who criticize in various ways the papacy of Pope Francis. This is a particular decision, I think, and I'm addressing it in particular -- though it is consonant with some recent and strikingly foolish statements made by a particular bishop to the effect that China is a world leader in implementing Catholic Social Teaching. It most certainly is not.
Fr. Christiansen's piece is worth reading, but one of his several suggested defenses strikes me as quite weak:
Anti-communist Catholicism: Time for aggiornamento? It has been 55 years since St. John XXIII’s encyclical “Pacem in Terris”(“Peace on Earth”). At the time of its publication, the letter’s most controversial affirmation was its opening to dialogue with political parties of the left, including the Italian Communists. Pope John himself penned the line that distinguished between adherents of an errant ideology and the ideology (Marxism) itself. “Pacem in Terris” cleared the way for a new relationship with the Communist governments of Eastern Europe and the re-establishment of the Catholic Church in the East. But even with shifts in the policies of the People’s Republic, that opening to Communists has not been accepted by intransigent elements of the underground church. Might it not be time to apply John’s teaching to relations with the Chinese government? Why should China be an exception to world Catholicism’s aggiornamento in church-state and political relations?
This is a fuzzy misuse of Pacem in Terris and relies excessively on "communism" as an abstract. Now, I would insist that any "rethinking" of Catholic opposition to communism, both as an ideology and as a lived regime, would be a mistake. "Communism," as it has been instantiated in regimes around the world, is antithetical to Christianity. Put that aside for now. Here, the "shifts in the policies of the People's Republic" that might be relevant are not identified here. Any "shifts" that might warrant a warming on the Church's part are dramatically outweighed by the continuation (and, in some instances, the worsening) of censorship, confiscation, disenfranchisement, and persecution.
The issue is not whether or not "aggiornamento" with something called "communism", or with some people called "communists", is warranted in the abstract. The issue is the reality that the PRC is not, in fact, a "People's Republic" -- no one should use that term without scare-quotes -- but is instead a repressive, secular dictatorship -- skyscrapers and billionaires notwithstanding.
Sunday, February 11, 2018
In the New York Times, Ross Douthat has a column that argues straightforwardly that we should "ban" hard-core pornography. Although the Supreme Court's precedents allow, in theory, governments to ban "obscene" material (see, e.g., Miller v. California), it seems to be the view that, practically speaking -- because of the ubiquity of and ease of accessing online pornography -- pornography is both unregulated and unregulatable (by the government).
My view of the First Amendment's free-speech guarantee tends to be the maximalist, old-school ACLU-type libertarian position -- i.e., the government may almost never regulate expression because of its content or because of the "viewpoint" it expresses. I hold this view not because I think it is compelled by the First (or the Fourteenth) Amendment's original public meaning but because, all things considered, I think it is "worth it" to endure offensive, misguided, foolish, and even dangerous speech rather than to trust officials with the task of identifying and policing, in a consistent and unbiased way, a line between speech that is permitted and speech that is not.
I admit, though, that I'm not entirely comfortable with this view (and not only because, again, it seems hard to square with what I understand to be the original meaning of "the freedom of speech"). Sometimes, those who hold this view justify it on the asserted ground that "sticks and stones may break my bones but words can never hurt me." Obviously, this is not true. Speech does cause "harms," to others, to the community, and to the moral ecosystem. What's more, there is no reason to think that these harms are distributed in an equitable way or, say, borne by those who benefit the most from a libertarian speech regime. Still, my well-grounded confidence that the power to regulate speech would be abused -- e.g., that rules against "hate speech" or "unsafe speech" or "harassment" will be used to suppress "conservative", "traditional", or otherwise insufficiently right-side-of-history views on various matters -- makes me reluctant to depart from the near-absolutist position.
And yet: Pornography is harmful -- and Douthat identifies some of these harms -- and it is immoral (despite what some woke and liberated sophisticates want to tell us) to produce or to consume it. The scathing piece that Douthat wrote after Hugh Hefner's death, responding to some of the ridiculous posthumous accolades, was spot on. (He was "a pornographer and chauvinist who got rich on masturbation, consumerism and the exploitation of women, aged into a leering grotesque in a captain’s hat, and died a pack rat in a decaying manse where porn blared during his pathetic orgies.") It's increasingly difficult for me not to agree that it should be regulated more than it is -- certainly, it should be marginalized, shamed, and disapproved more than it is -- and that meaningful lines between Pornhub and, say, The Rosy Crucifixion would not be as elusive as my fellow near-absolutists warn.
At the very least: Shouldn't every Catholic university employ (in ways consistent with researchers' academic freedom) filters and the like to at least complicate their undergraduates' dorm-room access to material that, the Church has always known and the world is increasingly appreciated, undermines their development, relationships, and flourishing?
SUMMARY OF ARGUMENT
The Catholic bishops of the United States have long and consistently supported the right of workers to organize for purposes of collective bargaining. Because this right is substantially weakened by so-called “right-to-work” laws, many bishops—in their dioceses, through their state conferences, and through their national conference—have opposed or cast doubt on such laws, and no U.S. bishop has expressed support for them.
Petitioner invites this Court to constitutionalize the “right-to-work” position—instantly, without exception, for all fifty states, almost irreversibly—in the public sector. Petitioner’s proposed rationale for this dramatic move appears designed to lay the foundation for a still more dramatic one: constitutionalizing, in a subsequent case, the “right-to-work” rule in the private sector as well. The Court should decline this invitation. It should leave constitutional space for the public policy position supported for so long by so many bishops and bishopled institutions, rather than declare still another such position outside the bounds of what policymakers are permitted to implement by law. See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (definition of marriage); Roe v. Wade, 410 U.S. 113 (1973) (prohibition of abortion). By its decision in this case, the Court should not only preserve that room for debate as to the public-sector context now, but avoid any threats to it in the private-sector context in the future.
[You can download the USCCB's amicus brief at this link:
Saturday, February 10, 2018
Story here. As a result, Bishop Ronald Fabbro
said he has decided that the Diocese of London will not apply for or accept any money from the Canada Summer Job Grants program. The program has funded an estimated 70,000 summer jobs for secondary school or college students, granting organizations the money for positions like camp counselors or landscapers. London-area organizations alone received nearly $4 million through the program last year.
This heavy-handed move by the Trudeau government seems to go beyond the kind of "compliance with nondiscrimination rules" conditions that are increasingly being tied to public funds, contracts, grants, and licenses in the United States. I'm reminded of the "law of merited impossibility" . . . .
Friday, February 9, 2018
Jay Webber is smart, talented, and conservative - and he's just announced he's in the race to capture the US House seat vacated Republican Rodney Frelinghuysen. Jay, a Harvard Law grad and devoted husband and father of seven, has served his district in the State House for the last ten years. He's a wonderful man and a dear friend.
Pay attention to this race - pray for him, and send monetary support if you can: firstname.lastname@example.org.
The Abigail Adams Institute, founded in 2014 to serve the Harvard intellectual community, is hosting two intensive seminars for advanced undergraduates, graduate students, and select professionals again this summer. Application deadline is March 15, 2018.
The first seminar, July 22-August 4, is The American Proposition.
The idea of American exceptionalism continues to be seen as somehow linked with the advent of American statehood. How are we to account for this connection? What are the roots of American political identity? Of American national identity? Have subsequent American developments fundamentally transformed the nature of the country, or is our destiny as a people working itself out in accord with our beginning? The writings of Alexis de Tocqueville, Orestes Brownson and Fr. John Courtney Murray offer the starting points in our exploration of the continuities and changes of these and other charged terms through American and global history.
Faculty: Thomas D'Andrea, University of Cambridge; James Nolan, Williams College; and Danilo Petranovich, Director of AAI.
The second seminar, August 5-11, is Capital and the Good Life.
Capital: what is it, how is it created, and what kind of purpose does, can, or should capital serve? What is capital's relationship to work and to the notion of productivity? How does it influence our ideas of progress? In what ways does it order our society and government? The seminar looks at a variety of perspectives on capital creation, acquisition, and use. Our approach to capital and capitalism will be less from a strictly economic and more from a philosophical perspective. Featuring the thought of Adam Smith, Anne Robert Jacques Turgot, Karl Marx, Friedrich Hayek, Karl Polanyi, Ludwig Lachmann, Thomas Piketty, and Robert Skidelsky.
Faculty: James Bernard Murphy, Dartmouth College; Plamen Nedeltchev, Cisco Systems; Leonidas Zelmanovitz, Liberty Fund.
Full Disclosure: I'm a Research Fellow at the Institute while at Harvard Law.