Mirror of Justice

Of subsidiarity, marriage, and such

I'm just catching up, and the Kmiec-Vischer exchange caught my eye.  Not that anyone's wondering, but I'm on record as favoring the proposed amendment.  Subsidiarity is one of the reasons that combine to get me there. 

I understand subsidiarity to be -- as worked out in the encyclicals of the last 125 yrs, the Catechism, the Compendium --  a principle in service of functions/authorities located by natural, divine, and, then, positive law.  Subsidiarity is, primarily, a principle of non-usurpation of function/authority. The principle is to the effect that functions/authorities that have been assigned cannot properly be re-assigned; it also places upon those with responsibility for the common good, as well as others, the duty to assist those individuals or societies that have difficulty fulfilling their respective functions. 

The function of marriage, with its correlative authority, is an example.  The responsibility of the state, and of others, is to respect and, as necessary, assist, the function/authority given, by nature and supernature, in the marriage society.  If you reject the proposition that marriage is naturally or supernaturally instituted, subsidiarity, as the Catholic social doctrine understands it, won't be relevant.

Assuming the Catholic s. d. perspective, the primary place of subsidiarity in the marriage amendment argument, as I understand it, concerns the government's responsibility to assist the body politic in giving effect to the particular function/authority that precedes the state.  I therefore agree with those who insist that subsidiarity does not necessarily assign this task to the lowest possible level, e.g., states, governments, or individuals.  Marriage needs help, and those charged with the common good are to provide it, consistent with their own proper functions.

As developed in the encyclicals, subsidiarity presupposes a world in which ruling power, such as the authority of the society that is marriage, has already been distributed.  (In a world in which authority didn't already have ontological traction, subsidiarity would be infinitely slippery).  If, then,  marriage is the goal, the question, as concerns subsidiarity, is how to achieve marriage through modes that both activate and respect other given functions and their correlative authorities. 

An alternative perspective on subsidiarity, if anyone would like to pursue it.  Devolution is not the answer, clearly; nor is centralization.     

A chilling headline

"Babies Aborted for not Being Perfect," reports the Daily Mail.

A Chinese Dissident's Faith

Jim Hoagland had an excellent op-ed in the Washington Post on Sunday, called "A Chinese Dissident's Faith."  He notes, at the outset, that journalists are "suckers" for "political dissidents," but "skeptics about religious activists."  This is a problem, he suggests, in our "era in which religion has again become the driving engine of world politics."  Discussing the recent visit to Washington, D.C. of "Yu Jie, a Chinese writer who says his political opposition to the Beijing dictatorship is deeply rooted in Christian faith," Hoagland worries about the "journalistic habits of compartmentalizing the political and the pious."

The five key events . . .

. . . in the story of religion in American politics over the last 50 years, according to the philosopher William Galston (thanks to Rod Dreher):

1. The fall of the informal Protestant establishment. Started in 1960 with election of a Catholic president, followed shortly thereafter by the school prayer decision.

2. The expulsion of urban Catholics from the Democratic Party after McGovern.

3. The Roe v. Wade mobilization. By 1984, both party platforms on abortion had hardened.

4. The Carter disappointment. "I have a feeling that Evangelicals would not have moved so strongly toward the Republican Party as they did if Carter had not teased them and disappointed them. I think that sent the signal that if not even Jimmy Carter can be trusted to hold high the banner, what Democrat could?"

5. The Boomer schism. "I see Bill Clinton and George W. Bush as matter and antimatter, the two basic things that can happen to you if you went to Yale University." This is why things got very different in 1992. The traditional electorate looked at Clinton, the first Boomer, as different from his predecessors among the Democrats.

Ignoring pro-lifers?

In this post, from the American Scene blog, Ross Douthat wonders why the "mainstream" press has almost entirely ignored Ramesh Ponnuru's new book, "The Party of Death."  After all, even if one were of the view that the book is highly partisan (in the Ann Coulter or James Carville -- or Kevin Phillips -- vein), that would hardly distinguish it from all kinds of books that are reviewed and commented upon in the Times, the Post, etc.  Douthat writes:

I don't mean this just in a whiney, "pay-attention- to-us" kind of way - though of course the pro-life movement would be much better off if the mainstream press did take pro-life arguments more seriously. I'm also genuinely curious about what pro-choicers think about Ramesh's arguments. More generally, I'm curious about why so many sensitive, highly-intelligent writers - for whose opinions, on most questions, I have the utmost respect - seem to be so untroubled by America's completely-permissive approach to abortion law. I can understand why smart people are pro-choice; I have a harder time understanding why smart people are so blithe about it, so happy to caricature pro-lifers as women-hating religious fanatics and nothing more, so unwilling to consider any restrictions on what is, however you slice it, a practice that involves doing fatal violence to a form of human life.

The Burdens of Parenting

Last week, Glenn Reynolds had this op-ed, "The Parent Trap:  How Safety Fanatics Help Drive Down Birthrates," in the Wall Street Journal.  Discussing (among other things) declining birth rates in developed (and other) countries, Reynolds notes:

Parenting was always hard work, of course. But aside from the economic payoffs, parents used to get a lot of social benefits, too. Yet in recent decades, a collection of parenting "experts" and safety-fascist types have extinguished some of the benefits while raising the costs, to the point where what's amazing isn't that people are having fewer kids, but that people are having kids at all.

He wonders also about the declining "prestige" of having children:

People in the suburbs buy SUVs instead of minivans not because they need the four-wheel-drive capabilities, but because the SUVs lack the minivan's close association with low-prestige activities like parenting, and instead provide the aura of high-prestige activities like whitewater kayaking. Why should kayaking be more prestigious than parenting? Because parenting isn't prestigious in our society. If it were, childless people would drive minivans just to partake of the aura.

In response, Ann Althouse had this post, asks how we can make parenting (in Reynolds's words) more "prestigious."  She writes:  "You can't make it cool to have kids just because we need kids. And the people with the kids aren't helping. Aren't they the ones who do the most to make folks without kids see raising kids as an unattractive proposition?  It's a deep, deep problem, and it's not going to change."

Is this a problem?  And, if it is, what (if anything) can law do?

The Bishops and the Federal Marriage Amendment

Maggie Gallagher linked to the U.S. Bishops' recent reaffirmation of a statement on marriage as indicating that the Church does not share my misgivings about the Federal Marriage Amendment.  I agree that Church leaders are supportive of the amendment; their statement, however, reflects the difficulty in articulating publicly accessible grounds to oppose the legal recognition of same-sex relationships.  Note that I am not saying that it is impossible to articulate such grounds, but it's difficult, and many attempts to do so either fall flat or resort to divine revelation via sacred texts.  Consider the opening paragraphs of the bishops' statement:

The Catholic Church believes and teaches that marriage is a faithful, exclusive, and lifelong union between one man and one woman, joined as husband and wife in an intimate partnership of life and love. Marriage exists so that the spouses might grow in mutual love and, by the generosity of their love, bring children into the world and serve life fully.

Moreover, we believe the natural institution of marriage has been blessed and elevated by Christ Jesus to the dignity of a sacrament. In this way, the love of husband and wife becomes a living image of the way in which the Lord personally loves his people and is united with them. God is the author of marriage. It is both a relationship of persons and an institution in society. However, it is not just any relationship or simply another institution. We believe that, in the divine plan, marriage has its proper meaning and achieves its purposes.

Therefore, it is our duty as pastors and teachers – a responsibility we share with the Christian faithful and with all persons of good will – to promote, preserve, and protect marriage as it is willed by God, as generations have understood and lived it, and as it has served the common good of society.

Because this statement leads to the conclusion that the Federal Marriage Amendment should be supported by all persons of good will, I'm not sure why it is relevant that "marriage has been blessed and elevated by Christ Jesus to the dignity of a sacrament" or why the model of Christ's love for His Church gives insight into the nature of civil marriage.  These statements by the bishops are not, and should not be, deemed inappropriate arguments in our public discourse, but they do seem unhelpful.  Thoughts?

Rob

The Gettysburg Address

Something for Memorial Day . . ..

Individuality and Personhood

I would like to thank several recent contributors, especially Rob, for posting several important topics that are a catalyst for my considering further the nature and essence of Catholic Legal Theory. I am also most grateful for the recent postings of Professors Robby George and Doug Kmiec brought in by MOJ regulars. Through these discussions, we see again how the “trigger” or “hot button” issues of the day are or may challenge not only Catholic Legal Theory but the Church, herself.

I have been trying to think why is there this conflict that today seems inevitable when the rule of law and democratic society are examined by a wide variety of thoughtful individuals given the context of topics like abortion, war, terrorism, euthanasia, same-sex marriage, etc.? I hasten to add that I read quickly a number of the Beckett Fund collection that are linked to Rob’s post “More on church autonomy and same-sex marriage”.

For me, the conflict, or the coming train wreck as some describe the growing controversy, emerges from a fundamental disagreement about the nature of the human person. If I may borrow from the work of Jacques Maritain and others here, this conflict (or coming train wreck) pits one conception of human nature that is based on “the person” against another that is concerned about “the individual.” Many may argue: aren’t they the same? In a way, I suppose so, but it is important to see the vital distinctions that others, such as Maritain, have identified and that can open, I believe, not only doors for CLT but also hope for avoiding the conflict—the train wreck—that is taking its toll on society, on the law, and on us.

Put simply, the notion of “the person” looks at the human being physically, spiritually, and metaphysically. With this background in mind, one sees the essence of human existence as being defined by the self in communion with something beyond the self. On the other hand, “the individual” is the autonomous being who, when all is said and done, is alone. Yes, “the individual” wants rights, equality, autonomy, etc. But there is little beyond the self that determines what the self wants, what the self is, and what the self needs. With “the person” there is much more. When supporters of these two views are asked: what is important to the human being; what is the human being’s destiny; etc.?, very different answers will appear. These answers are powerful, and they fuel the conflict; they propel the trains on the collision course.

I, for one, conclude that it is the notion of “the person”, as briefly defined here, that is crucial to our nature as human being and our destiny. It is therefore vital to understand why “the person” rather than “the individual” is at the heart of why we have law and why we have its rule. But, I hasten to add that there is another view inexorably racing in the opposite direction on the same track. This is one instance in which I hope I am very wrong, but after having taken account of many recent important postings on this site and those external discussions that have been linked, I find that I may not be—wrong.    RJA sj

More on church autonomy and same-sex marriage

Perhaps my confidence in the continued autonomy of religious associations in a legal system that recognizes same-sex marriage is a bit optimistic.  At least that's the feeling I had after reading today's story from the AP setting forth the views of scholars who believe that anti-discrimination norms should trump religious liberty, though I still believe hope that their views do not (yet?) occupy the mainstream. Also relevant is this recent Steve Chapman column espousing a conservative skepticism toward the amendment.  If there are problems with the Defense of Marriage Act's ability to limit one state court's ruling from affecting other states, as Prof. Kmiec suggests, Chapman's basic point is weakened considerably.

Rob

Excommunicating Judges: Fact or Fiction?

In response to my earlier query, Commonweal's Grant Gallicho reports that he has been unable to find any statement by Church officials amounting to a threat to excommunicate the Colombian judges responsible for recognizing a limited right to abortion in that country.  The closest he could find is the archbishop of Bogota's statement that "[t]he person who is directly or indirectly . . . responsible for the abortion will be excommunicated."  I'll try to give the New York Times the benefit of the doubt that this is not the only basis for its assertion in an editorial that "Catholic Church leaders have threatened to excommunicate the judges."

Rob 

Climb every mountain…

I have discovered that over the past several days, there have been a number of expeditions on Mount Everest in which explorers have passed by the “bodies” of other recent explorers who did not make it to the summit. A major problem that quickly arises is this: why did some recent passers-by not stop the check those who seemed dead? In fact, one of those passed by was not dead at all but very much in distress. He was left behind by his own group of “brave” explorers. Our Blessed Lord reminds us in his farewell discourse that there is no greater love than to give one’s life for one’s friends. I believe that Sir Edmund Hillary was of the school that reaching the summit was far less significant and noble than saving someone along the way. I wonder what has happened to his wisdom?    RJA sj

Why Tolerate ....?

I have read Professor Leiter’s draft essay “Why Tolerate Religion?” for which Rob gave us the link and published the abstract. I was disappointed that the Leiter essay does not refer to many thoughtful discussions going back for centuries, even millennia, about religion, religious belief, and religious faith that could offer rationales why religion needs more than simply toleration, but certainly toleration will do for the time being. I then re-examined his essay and the abstract provided and began to substitute other topics such as “abortion” and “same-sex marriage” for “religion” and wondered how these and other contemporary topics might weather a Leiter-like scrutiny?     RJA sj

Kmiec responds

Doug Kmiec offers this response to my criticism of his op-ed supporting the federal marriage amendment:

On FOX News Sunday recently with Chris Wallace, John McCain said something similar, though less well anchored in the Catholic tradition. McCain proclaimed his opposition to the amendment, explaining it as deference to the states, and secondarily, on the ground that it is legally unnecessary. There are reasons -- unfortunately -- to question both propositions.

McCain rightly wants his home state of "Arizona [to] make [its own] decisions about the status of marriage . . . just as the people in Massachusetts and other states should make their decisions." Fair enough, local decision making is a core principle of federalism (and Catholic subsidiarity), but judges, not the people in local or even state-wide communities, seem to be getting the last word. By contrast, the very process of considering a constitutional amendment returns the issue to the people. Before a single word can be added to our federal charter, three-fourths of the states must agree. So while I agree with you that the perfect case would have been "bottom-up" without any federal intervention, I think four justices in Massachusetts and regrettably more to come have no intention of letting the people back into the conversation.  The proponents of the amendment are merely asking for Congress - by a two-thirds vote of both houses - to let the people in their individual states engage in civil discourse and decide for themselves.

As for legal necessity, Senator McCain is under the misimpression that the Massachusetts mistake can be confined to the Bay state. That is unlikely. Similar litigation by gay activists from New Jersey to California is underway. If the activists prevail even in one or two venues, same-sex couples will migrate in greater numbers and press the courts of other states to recognize these judicially-invented licenses, and that, too, is another potential blow to localism. The Constitution's "Full, Faith and Credit" Clause was recently construed to require something comparable when an Oklahoma federal court invalidated a state constitutional amendment restricting recognition of out of state gay adoption. Congress in the 1990s passed the Defense of Marriage Act to allow individual states to maintain traditional marriage as a matter of public policy, but the federal judge in Oklahoma at least held there is no "roving public policy exception" to another state's legal judgments. The FFC clause is enigmatic and under-interpreted on this question, and, in my judgment, it simply cannot be counted on to protect the local voice.

Senator McCain is a thoughtful man, and I bet he, like you, is sincere when he raises the associational good of deferring to local discernment.  Most in opposition to the federal marriage amendment, however, do it on a less reasoned basis; typically, out of a mistaken "live and let live" toleration. The witness of the Catholic faith, I believe, requires more of us.  Subsidiarity does not deny the occasional help of the higher order, and this is one of those times. There is nothing intolerant in joining with one's neighbors assembled in state ratifying conventions -- a pretty decent approximation of the "marketplace of ideas" -- for the purpose of affirming, with the Bishops of the Church, that marriage is a faithful, exclusive, and lifelong union between one man and one woman, joined as husband and wife.

Rob

Leiter on Religion

Texas law prof Brian Leiter has posted his paper, Why Tolerate Religion?  Here's the abstract:

Religious toleration has long been the paradigm of the liberal ideal of toleration of group differences, as reflected in both the constitutions of the major Western democracies and in the theoretical literature explaining and justifying these practices. While the historical reasons for the special “pride of place” accorded religious toleration are familiar, what is surprising is that no one has been able to articulate a credible principled argument for tolerating religion qua religion: that is, an argument that would explain why, as a matter of moral or other principle, we ought to accord special legal and moral treatment to religious practices. There are, to be sure, principled arguments for why the state ought to tolerate a plethora of private choices, commitments, and practices of its citizenry, but none of these single out religion for anything like the special treatment it is accorded in, for example, American and Canadian constitutional law. So why tolerate religion? Not because of anything that has to do with it being religion as such—or so this paper argues.

Rob

Kmiec on gay marriage and church autonomy

Pepperdine law prof Doug Kmiec has an op-ed in today's Chicago Tribune arguing that a federal marriage amendment is needed to protect the autonomy of churches who oppose same-sex marriage:

With the states being so vigilant in defense of traditional marriage, is there really a need for the people to act? Yes. Activists are deployed across the country challenging traditional marriage, and it is more than likely that some additional judges will compound the Massachusetts mistake. This increased judicial approval of same-sex marriage will metastasize into the larger culture. Indeed, an insidious, but less recognized, consequence will be a push to demonize--and then punish--faith communities that refuse to bless homosexual unions.

While it may be inconceivable for many to imagine America treating churches that oppose gay marriage the same as racists who opposed interracial marriage in the 1960s, just consider the fate of the Boy Scouts. The Scouts have paid dearly for asserting their 1st Amendment right not to be forced to accept gay scoutmasters. In retaliation, the Scouts have been denied access to public parks and boat slips, charitable donation campaigns and other government benefits. The endgame of gay activists is to strip the Boy Scouts (and by extension, any other organization that morally opposes gay marriage) of its tax-exempt status under both federal and state law.

I agree with Prof. Kmiec that it would be a very bad thing for churches to lose their tax-exempt status for opposing gay marriage.  But I disagree with his suggestion that the prudent solution is to enforce a top-down resolution of the issue, effectively shutting down any sort of localized marketplace of ideas, simply because we don't like the potential outcome(s).  I'm a full supporter of the Supreme Court's ruling in Dale protecting the Boy Scouts' associational autonomy, in part because the ruling facilitated a localized, bottom-up approach to the issue.  It's a good thing that other associations have staged boycotts and encouraged local governments to withhold support of the Boy Scouts -- that's how civil society should work.  (I've made this argument elsewhere.)  I think we're a long way from having traditional faith communities get the Bob Jones treatment from the IRS for not performing same-sex marriage.  But more broadly, if we want to keep associational life in this country vibrant, we should be very hesitant to start handing contested moral issues over for one-size-fits-all collective solutions.

Rob

An excerpt from the Holy Father in Warsaw

The faithful expect only one thing from priests: that they be specialists in promoting the encounter between man and God. The priest is not asked to be an expert in economics, construction or politics. He is expected to be an expert in the spiritual life. With this end in view, when a young priest takes his first steps, he needs to be able to refer to an experienced teacher who will help him not to lose his way among the many ideas put forward by the culture of the moment. In the face of the temptations of relativism or the permissive society, there is absolutely no need for the priest to know all the latest, changing currents of thought; what the faithful expect from him is that he be a witness to the eternal wisdom contained in the revealed word. Solicitude for the quality of personal prayer and for good theological formation bear fruit in life. Living under the influence of totalitarianism may have given rise to an unconscious tendency to hide under an external mask, and in consequence to become somewhat hypocritical. Clearly this does not promote authentic fraternal relations and may lead to an exaggerated concentration on oneself. In reality, we grow in affective maturity when our hearts adhere to God. Christ needs priests who are mature, virile, capable of cultivating an authentic spiritual paternity. For this to happen, priests need to be honest with themselves, open with their spiritual director and trusting in divine mercy.

On the occasion of the Great Jubilee, Pope John Paul II frequently exhorted Christians to do penance for infidelities of the past. We believe that the Church is holy, but that there are sinners among her members. We need to reject the desire to identify only with those who are sinless. How could the Church have excluded sinners from her ranks? It is for their salvation that Jesus took flesh, died and rose again. We must therefore learn to live Christian penance with sincerity. By practising it, we confess individual sins in union with others, before them and before God. Yet we must guard against the arrogant claim of setting ourselves up to judge earlier generations, who lived in different times and different circumstances. Humble sincerity is needed in order not to deny the sins of the past, and at the same time not to indulge in facile accusations in the absence of real evidence or without regard for the different preconceptions of the time. Moreover, the confessio peccati, to use an expression of Saint Augustine, must always be accompanied by the confessio laudis – the confession of praise. As we ask pardon for the wrong that was done in the past, we must also remember the good accomplished with the help of divine grace which, even if contained in earthenware vessels, has borne fruit that is often excellent.....

Stand firm in your faith! To you too I entrust this motto of my pilgrimage. Be authentic in your life and your ministry. Gazing upon Christ, live a modest life, in solidarity with the faithful to whom you have been sent. Serve everyone; be accessible in the parishes and in the confessionals, accompany the new movements and associations, support families, do not forget the link with young people, remember the poor and the abandoned. If you live by faith, the Holy Spirit will suggest to you what you must say and how you must serve. You will always be able to count on the help of her who goes before the Church in faith. I exhort you to call upon her always in words that you know well: "We are close to you, we remember you, we watch."

The Court's next huge Religion Clause case . . .

. . . might just have been teed up by the U.S. Court of Appeals for the Third Circuit (thanks to Religion Clause blog):

Yesterday in Petruska v. Gannon University, (3d Cir., May 24, 2006), the U.S. Third Circuit Court of Appeals expanded the ability of ministerial employees to bring Title VII employment discrimination cases against churches and religious institutions that employ them. In this case, Lynette Petruska, the first female chaplain at Gannon University, a diocesan college, claimed that she was demoted solely because she was a woman. The Court rejected the defendants' claims that the suit should be dismissed under the "ministerial exception" doctrine. It held that the First Amendment exempts religious institutions from Title VII when gender or other illegal discrimination is based on religious belief, religious doctrine or internal church regulations. But if a church discriminates for reasons unrelated to religion, the Constitution does not foreclose a Title VII suit. The court said, "we decline to turn the Free Exercise Clause into a license for the free exercise of discrimination unmoored from religious principle." Judge Smith dissented on this issue.

In holding as it did, the majority disagreed with six other circuits that have found the ministerial exception to be broader. Inside Higher Ed today reports on the case.

Wait and see . . .

"Principled Immigration"

Prof. Mary Ann Glendon (Harvard law) has this essay, "Principled Immigration," in the current issue of First Things magazine.  Immigration is, as we have discussed on this blog several times, a hard, complicated issue -- one to which (in my view, anyway) our current political debates do not do justice.  Glendon's essay strikes me as reasonable, balanced, and clear. 

Among other things, she asks, "why isn’t the United States glad about Latin American immigration?"  To which she answers:

Part of the answer is the economic cost of large-scale immigration. American wage earners often fear that migrants will drive down wages and take the jobs that remain. This fear is sometimes exaggerated, but it is not unfounded: The consensus among labor economists is that immigration has somewhat reduced the earnings of less-educated, low-wage workers. Many Americans are also concerned about the costs that illegal immigration imposes on taxpayers, with its strain on schools and social services, particularly in the border states. The desire to protect the national security of the United States, especially after the trauma of September 11, has played a role as well.

There are also some in the United States who want to close the door to newcomers simply because they are outsiders. Over the course of the twentieth century, that attitude seemed to be fading away, but in recent years sleeping nativist sentiments have been irresponsibly inflamed by anti-immigration groups. A few years ago, I wrote of the financial and ideological connections among extremist anti-immigration groups, radical environmentalists, and aggressive population controllers. What unites that loose coalition in what I called an “iron triangle of exclusion” is their common conviction that border controls and abortion are major defenses against an expanding, threatening, welfare-consuming, and nonwhite underclass. (I never suspected when I wrote those lines that they would cost me a half-year’s salary. But on the basis of a promised grant from a foundation whose causes included environmental protection, I had taken an unpaid leave from Harvard. Shortly after my article was published, the foundation reneged on its promise. It turned out that their idea of protecting the environment included keeping out immigrants and keeping poor people from having children.)

This bit is also worth highlighting:

The five principles set forth in the 2003 Joint Pastoral Letter issued by the Mexican and U.S. bishops, Strangers No Longer: Together on the Journey of Hope, might be helpful in setting the stage for new approaches that could expand the pie for both sending and receiving countries. The letter asserts that (1) persons have the right to find opportunities in their homeland; (2) when opportunities are not available at home, persons have the right to migrate to find work to support themselves and their families; (3) sovereign nations have the right to control their boundaries, but economically stronger nations have a stronger obligation to accommodate migration flows; (4) refugees and asylum seekers fleeing wars and persecutions should be protected; and (5) the human dignity and rights of undocumented migrants should be respected.

---

To those five principles, a sixth should be added: a principle recognizing the need for a highly diverse, rule-of-law society to be careful about the messages it sends to persons who wish to become part of that society. And the bishops might have done well to note, as Pope John Paul II did in Solicitudo Rei Socialis, that solidarity imposes duties on the disadvantaged as well as the advantaged: “Those who are more influential, because they have a greater share of goods and common services, should feel responsible for the weaker and be ready to share with them all they possess. Those who are weaker, for their part, in the same spirit of solidarity should not adopt a purely passive attitude, or one that is destructive of the social fabric, but, while claiming their legitimate rights, should do what they can for the good of all.”

Religious freedom and "proselytization"

Professor Friedman (Religion Clause blog) has a very helpful post, chock full o' links, on the recent Holy See / WCC document, "Conversion:  Assessing the Realities."  Here is a bit:

Freedom of religion is a fundamental, inviolable and non-negotiable right of every human being in every country in the world. Freedom of religion connotes the freedom, without any obstruction, to practice one’s own faith, freedom to propagate the teachings of one’s faith to people of one’s own and other faiths, and also the freedom to embrace another faith out of one’s own free choice.

We affirm that while everyone has a right to invite others to an understanding of their faith, it should not be exercised by violating other’s rights and religious sensibilities. At the same time, all should heal themselves from the obsession of converting others.

Freedom of religion enjoins upon all of us the equally non-negotiable responsibility to respect faiths other than our own, and never to denigrate, vilify or misrepresent them for the purpose of affirming superiority of our faith.

Hmmm.  What, exactly, is or constitutes an "obsession with converting others"?  Put differently, what distinguishes this "obsession" from, say, the Great Commission:  "Go ye therefore, and make disciples of all the nations"?  Perhaps the drafters simply made an unfortunate word choice.  Certainly, the evangelization of those who are not Christian should proceed in accord with a Christian respect for persons and religious freedom.  That said, it seems quite wrong to suggest that there is something unworthy about wanting -- a lot -- others to embrace the Truth that is Christ.

It strikes me as a bigger problem that, in the name of constraining "proselytism", countries are limiting conversions and religious expression, than that some evangelists are behaving or speaking in an unworthy and non-"transparen[t]" way.

Faith, Justice, and Teaching Criminal Procedure

Michael O'Hear has a new paper, "Faith, Justice, and the Teaching of Criminal Procedure," that should be of interest to MOJ readers.  Here is the abstract:

The American criminal justice system is marked by a culture of speedy, bureaucratized case processing, which is in tension with the dignitary interests of defendants. The Christian Gospels, however, mandate respect for the essential dignity of all people, even of criminals. Faith-based values may thereby provide a framework for critical perspectives on the criminal justice system. In a basic criminal procedure class, these perspectives may be conveniently developed through a discussion of leading right-to-counsel cases.

O'Hear explores these matters through a discussion of, inter alia, the (limited) right to self-representation, acknowledged in the Faretta case.  (I tend to agree, for what it's worth, with the dissent in Faretta, and to be skeptical of the view that a respect for the accused's dignity requires the political community to compromise the reliability of its fact-finding and punishment-imposing processes.)  Anyway, check it out.

Trading Embryos for Jobs

Wisconsin's Catholic governor has rebuffed the bishops over his support of embryonic stem cell research, acknowledging the deep moral economic dimension of the issue:

Gov. Jim Doyle broke with Wisconsin's two most prominent Catholic bishops on Wednesday, bluntly telling them he would not rethink his strong support of embryonic stem cell research.

"While I appreciate your thoughts on this important issue, I also feel a responsibility to promote vital research which holds the potential to save countless lives and bring thousands of jobs to our state," Doyle, a Catholic, wrote in a letter to Milwaukee Archbishop Timothy Dolan and Madison Bishop Robert Morlino.

Finally, a politician who's willing to speak with some candor: yes, we'd like to save lives, but when it comes down to it, embryonic research is just another job creation package.  The gold rush continues.

Rob

Excommunicating judges?

A New York Times editorial suggests that the Catholic Church has threatened to excommunicate the judges on Colombia's Constitutional Court who have granted limited abortion rights.  Is this true?  If so, is this the first time that the abortion/excommunication fracas has extended from politicians to judges?

Rob   

UPDATE: Chris Green points out that a Southern Baptist version of a judge's excommunication resulted from the Schiavo case.

Judge Jones Turns Historian

Judge John Jones, who struck down the Dover, Pennsylvania school board's intelligent design policy, gave the commencement address at his alma mater last weekend.  (HT:CT)  Basking in the limelight of his ruling, apparently he has now turned to setting the record straight on the founders' view of religion:

"The founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry," said Jones, who was thrust into the national spotlight by last year's court fight over the teaching of evolution in the Dover school district.

The founding fathers - from school namesake John Dickinson to Alexander Hamilton and Thomas Jefferson - were products of the Enlightenment, Jones said.

"They possessed a great confidence in an individual's ability to understand the world and its most fundamental laws through the exercise of his or her reason," he said.

It seems a bit strange that, after criticizing the Dover school board for setting up a false conflict between religious belief and rational inquiry, Judge Jones is using a woefully simplistic characterization of the founders' beliefs to set up a false conflict between rational inquiry and "something handed down by a church or contained in a Bible." 

Rob

Ethnic Identity and Catholic Singing

My colleague Lisa Schiltz suggests that my frustration with Catholic singing might be remedied by spending some time in ethnic parishes:

The church where I was married was a tiny, old traditionally Polish parish church in the tiny steel town of Carnegie, Pennsylvania, outside of Pittsburgh.  The church itself has since been consolidated, but in the years I attended those masses with my father, the music was, I think, one of the most important parts of the worship experience for most of the older parishioners of Polish heritage.  The American hymns were sung dutifully, but when the organist cranked out an old Polish hymn, the (somewhat screechy, usually not any where near in tune) older parishioners would raise the roof.   Over the last couple of nights I found myself finally watching the network miniseries on Pope John Paul II that we recorded months ago, and I was struck by how many of the Pope’s most emotional moments of communication with crowds involved the Polish people singing various Polish hymns – often as much an expression of ethnic, political identity as an expression of faith, but in these situations Catholic hymns clearly had as much power as the words that were being spoken around them. 

One of the most incredible Mass experiences Pat and I ever had was at a tiny Catholic church in a predominantly Black parish in Mississippi, where the music was absolutely transporting – probably reflecting evangelical influences, I’ll grant you that.  With respect to parishes closer to home, Fr. Kevin McDonough tells stories of the music at St. Peter Claver parish, where the Ethiopian immigrants have positively electrifying Masses in which the music is key.  And even in our own pretty bland, white, suburban parish, some of the most beautiful music, the tunes that really get our entire parish singing and sometimes even clapping along, tend to be the ones (from the same, rather-bland song-book that has “On Eagles Wings”) with notations indicating they come from a Spanish or African (or sometimes even Irish) traditional songs.

Rob

Roger Scruton on J.S. Mill at 200

Michael Rappaport has thoughts and links on Roger Scruton's recent op-ed on the occasion of the 200th anniversary of J.S. Mill's birth.

An Amusing—and Instructive—Story About a Commencement Speaker: The Contradiction of Catholic Teaching to a Secular World

Now that the college graduation season is waning, and some time has passed since our earlier disputations about commencement speakers at Catholic colleges and universities, I thought it would be a fitting closing to tell a story that I hope will prove both amusing (as it was to me at the time) and instructive (as I’ve come more to appreciate in the years since).

The story is about my own law school graduation ceremony, in 1984, from the University of Washington School of Law in Seattle. Seattle, of course, has a long history as a progressive city, frequently the site of liberal activism, anti-war protests, etc. The University of Washington often has been a gathering place for these political movements. During the early 1980’s, the nuclear freeze campaign was the cause celebre of the peace movement, and one of its heroes was Archbishop Raymond Hunthausen of the Seattle Archdiocese, who had gained national attention for withholding a portion of his income taxes as a public protest against nuclear weapons. The mostly liberal, and very secular, student leaders at the UW law school were quite eager to attract such a prominent anti-war activist and practitioner of civil disobedience to give the commencement address at the law school graduation.

And so, on June 9, 1984, Archbishop Hunthausen appeared before the University of Washington law school graduating class as the designated commencement speaker. As those who had sought his appearance had anticipated and welcomed, he did indeed make a passing reference to the dangers of nuclear weapons and the uncertainty of international tensions. But he devoted much of his brief comments to emphasizing the important role of lawyers to speak for those who cannot speak for themselves, with particular attention to the unborn who are silent victims of abortion. Well, as you might imagine, the student leaders who had petitioned for the invitation to Archbishop Hunthausen were not at all pleased by this turning of the table. Indeed, the very folks who had invited him angrily stood and walked out when Archbishop Hunthausen affirmed the right to life of the unborn and called upon lawyers to protect the vulnerable.

This twenty-two-year-old event sends an important message for all us at the Mirror of Justice and our friends. The Catholic Church and Church teaching cannot be labeled by secular political terms nor can it be appropriated by the left or the right as their rhetorical weapons to be wielded as they choose. The Catholic Church and Catholic teaching ought to be a contradiction to all of us who tend to perceive the world through political or ideological lenses, although we will be differently provoked depending upon where we stand. Our mission within Catholic Legal Studies must be to heighten that contradiction of secular perspectives and draw from it the tools to bridge our differences as faithful Catholics toward the common goal of a just society.

Greg Sisk

Some Catholics Care About Singing

I crossposted my recent comment "Why Catholics Can't Sing" over at dotCommonweal. This is what happens when a lawyer pontificates about music -- the comment trail to my dotComm post shows that comments about liturgical music can be fighting words:  http://www.commonwealmagazine.org/blog/post/index/261/Why-Catholics-Cant-Sing

-- Mark

PS Rob will find some interesting observations here

Blame it on the Germans . . .

Continuing our (distinctly non-legal) discussion on Catholics and singing, a reader takes issue with the opinion of the reviewer I cited below:

I think he is mistaken regarding the purposes of Catholic liturgical music. Apart from the Kyrie, Catholic liturgical music is oriented toward praise (Gloria, sanctus, benedictus), not some sort of works-oriented atonement theology. 

Further, much of the difference in liturgical/sacred/religious music is cultural and linguistic. The Reformation, as you know, was largely a cultural break as well as a theological one, as the boundary of the Reformation fits nicely with the boundary of the old Roman empire. . . . And sacred music was shaped by the language it was set to. As Latin is orderly, monotonous, and consistent, its music is much the same. However, German is more of an emotionally-charged language with more forceful sounds. Thus, the classic German hymns are a natural outgrowth of the language.

This raises yet another thorny question: Do I love Protestant hymns because I love German drinking songs, or do I love German drinking songs because I love Protestant hymns?

Rob

The Pope, India, and religious freedom

An interesting exchange.  (Thanks to Amy Welborn.)

Why Catholics Can't Sing

I was touched by Rob's cri de coeur about the dreariness of Catholic liturgical music and congregational singing. And I can't dismiss his despair about what passes for music in our churches as the lament of a not-yet-fully-assimilated evangelical convert still longing for "Amazing Grace" and "Rock of Ages." This cradle Catholic agrees entirely with Rob about not just the lousy singing but a body of music that. at best, combines the Carpenters with bad show tunes or Sesame Street singalongs. If you think I am just being some kind of snob, check out Thomas Day's terrific book. "Why Catholics Can't Sing: The Culture of Catholicism and the Triumph of Bad Taste." The book begins with this intriguing passage: "Contemplate this very odd situation. Today, a large number of Roman Catholics in the US who go to church regularly--perhaps the majority--rarely or barely sing any of the music. (I have heard a congregation of fifty elderly Episcopalians produce more volume than three hundred Roman Catholics.) If you think about it, this stands out as a most curious development in the history of Christianity."  Day does not provide a simple explanation for why this is true (ie, it all went to hell in a handbasket because of Vatican II. Actually, it was pretty bad before that too.) Instead, he argues that "The uneven singing of the American Catholic congregation is really a symptom, not the disease itself. It is the result of a human history that stretches across the centuries, not the result of some recent artistic or musical development."  I will leave it to our readers to turn to Professor Day for an explication of that history.

--Mark

They shoot horses, don’t they?

Today the on-line news services had a great deal to say about Kentucky Derby winner Barbaro’s accident at the Preakness Stakes. The photograph of Barbaro nobly pursuing the race with a broken hind leg jutting out spoke a great deal about not giving up on the goal of a lifetime—to win the triple crown. Today’s New York Times had a short article by Jane Schwartz, “We Care, But Why Do We Care So Much?”, (Here) about Barbaro. But, after reading her short story (the author wrote a book on another famous race horse, Ruffian, who was euthanized after a debilitating racetrack accident back in the mid 1970s), I came to realize she was addressing much more than a noble horse and a great jockey trying to save his horse. She was really writing about all of us in the human family and the cares and concerns that we may harbor.

Ms. Schwartz asks early on an important question about Barbaro’s racing accident: “Why do people care so much about the fate of an animal to which they have no personal connection?” Perhaps her question could be simplified by dropping the phrase “to which they have no personal connection?” She goes on, though, to answer, in a way, her question: it breaks the hearts of people when animals have to be destroyed.

Ms Schwartz is thinking beyond the Preakness Stakes incident and aftermath because she begins to introduce the real question: what if it, the horse, were a human being? She notes that good, meaning famous, horses “are treated the way every child should be treated…” The emphasis is mine. But we should pause and ask ourselves the question: how are children, how are people, in reality treated? Does it depend if they are famous or not like Barbaro? The author also notes that there seems to be a social pressure not to destroy the animal “even when that may be the most humane path.”

A few years ago I found myself on the periphery of a controversy involving the applications of several student groups that were seeking recognition by the student government so that they could qualify for campus funding and other university benefits. One group was “Law Students for Choice.” The University administration correctly stepped in and noted that it would be a problem for the institution which asserts a Catholic identity to recognize this group as a qualifying student organization. In response, some members of the university community then began to raise questions about a student pro-life group that was also seeking recognition around the same time. I don’t believe the latter group ever got by the student government board. Oddly enough, the Animal Rights group made it through to the finish line, so to speak, and on to become a recognized student group.

To go back to Ms. Schwartz’s remark that there seems to be social pressure against killing animals: it is harder to make the same claim on behalf of human beings in many contexts. Be the topic abortion, embryonic cloning, euthanasia, Darfur, or black market sale of human organs, does our society, do we, express the same caring for people as we seem to convey for animals?

And that is where we who are educators asserting the role of Catholic legal theory have a role to play. Ms. Schwartz concludes her essay by talking about miracles of famous race horses recovering from tragic accidents. Her last line is about what she identifies as the “real miracle” because so many people “are still capable of caring so much.” But, I ask, do they care about people as much as animals? If it is good to hope for animals, famous or not, is it also not a good to hope for people, be they famous or not? The answer to that question must be yes. But our culture, which is quick to display its empathy for a famous animal, does not always respond in a similar fashion when even one person, let alone thousands or millions, is forgotten by the same culture.

That is where educators concerned about Catholic legal theory have a crucial role to play—a role so crucial that it, too, could be the goal of a lifetime. There is something about educating inquiring minds (be they students, readers of articles, judges, legislators, administrators, and citizens with whom we come into contact) concerning the inestimable value of every human being whose future, both in this world and the next, should not be fraught with decisions and attitudes that many would find barbaric if they were directed toward a horse. I am sorry for Barbaro, and I am sorry for Ruffian, the famous horse that is the subject of Ms. Schwartz’s book to which I made previous reference. But I am far more sorry for those children, born and not; those mature men and women struggling with the problems and conflicts of life; those aging elders left alone to die; those disabled persons who do not seem to exist, all who are viewed by a culture and its political and legal institutions as being dispensable because they are not famous—and if they are not famous, then they are unknown. And it becomes easy to imagine that they do not exist. That is the challenge for us: to demonstrate that they do exist and merit the primary concern of a people that are “capable of caring so much.” God has expressed his love for them. Might we not do the same if we are capable of caring so much? Surely the New York Times is not the only venue in which such caring can be displayed.    RJA sj

Hymns and the Common Good

Forgive a slight detour from Catholic legal theory.  I'm almost always glad to be Catholic . . . except when I'm singing Catholic worship songs, at which time I get the unmistakable sensation that I'm at a very sleepy campfire sing-along.  This does not mean that I want to bring back the Gregorian chant.  Traditional Protestant hymns have long provided an inspirational, rousing, and accessible worship form that I have yet to experience in a Catholic parish.  Apparently, I need to read Christopher Brown's new book, Singing the Gospel: Lutheran Hymns and the Success of the Reformation, in which he focuses on the role of hymns in the life of a 16th century German town, Joachimsthal. 

A reviewer notes that:

We live in a world where technique, allied to advertising, is determinative in all areas of our life, not