Mirror of Justice

John McCain: Living His Faith, But Private About It

Recently, I shared at some length here at the Mirror of Justice (here, here, and here) my impressions after listening to the interesting observations on faith and private and public life offered by Senators Barack Obama and Hillary Clinton at the Compassion Forum held before the Pennsylvania primary. In another post on the trends in the Catholic vote during the Democratic primaries, I noted that “Senator McCain chose not to participate in the Compassion Forum at Messiah College earlier this month, saying that he takes a more private approach to his religious faith. We will have to see whether McCain then is able to convince faithful Catholics that he respects their perspective, values their communities, and understands the centrality of religious faith and observance in their lives. McCain’s ability to speak directly to working class and non-urban Catholics has not yet been tested.”

In a column in today's Wall Street Journal, “Getting to Know John McCain,” Karl Rove confirms McCain’s insistence on remaining very private about his faith, but argues that “if Mr. McCain is to win the election this fall, he has to open up.” The column relates stories (always shared by others and rarely mentioned by McCain) about how McCain’s faith shows itself in what he does say and do in private, dating back to his years as a prisoner of war . Herewith some examples:

Another story I heard over dinner with the Days involved Mr. McCain serving as one of the three chaplains for his fellow prisoners. At one point, after being shuttled among different prisons, Mr. Day had found himself as the most senior officer at the Hanoi Hilton. So he tapped Mr. McCain to help administer religious services to the other prisoners.

Today, Mr. Day, a very active 83, still vividly recalls Mr. McCain's sermons. "He remembered the Episcopal liturgy," Mr. Day says, "and sounded like a bona fide preacher." One of Mr. McCain's first sermons took as its text Luke 20:25 and Matthew 22:21, "render unto Caesar what is Caesar's and unto God what is God's." Mr. McCain said he and his fellow prisoners shouldn't ask God to free them, but to help them become the best people they could be while serving as POWs. It was Caesar who put them in prison and Caesar who would get them out. Their task was to act with honor.

Another McCain story, somewhat better known, is about the Vietnamese practice of torturing him by tying his head between his ankles with his arms behind him, and then leaving him for hours. The torture so badly busted up his shoulders that to this day Mr. McCain can't raise his arms over his head.

One night, a Vietnamese guard loosened his bonds, returning at the end of his watch to tighten them again so no one would notice. Shortly after, on Christmas Day, the same guard stood beside Mr. McCain in the prison yard and drew a cross in the sand before erasing it. Mr. McCain later said that when he returned to Vietnam for the first time after the war, the only person he really wanted to meet was that guard.

* * *

[I]n 1991 Cindy McCain was visiting Mother Teresa's orphanage in Bangladesh when a dying infant was thrust into her hands. The orphanage could not provide the medical care needed to save her life, so Mrs. McCain brought the child home to America with her. She was met at the airport by her husband, who asked what all this was about.

Mrs. McCain replied that the child desperately needed surgery and years of rehabilitation. "I hope she can stay with us," she told her husband. Mr. McCain agreed. Today that child is their teenage daughter Bridget.

I was aware of this story. What I did not know, and what I learned from Doris, is that there was a second infant Mrs. McCain brought back. She ended up being adopted by a young McCain aide and his wife.

"We were called at midnight by Cindy," Wes Gullett remembers, and "five days later we met our new daughter Nicki at the L.A. airport wearing the only clothing Cindy could find on the trip back, a 7-Up T-shirt she bought in the Bangkok airport." Today, Nicki is a high school sophomore. Mr. Gullett told me, "I never saw a hospital bill" for her care.

Query: Will circulation of such stories through the grapevine make any difference? Should Senator McCain be expected to speak more directly to religion in the public square, as did the Democratic contenders at the Compassion Forum earlier this month?

Greg Sisk

Divorce Issue re. Wheaton Professor

From Christianity Today online:

After refusing to discuss the details of his divorce, tenured professor Kent Gramm resigned from his English position at [evangelical] Wheaton College.

Wheaton’s faculty handbook states that the college will consider employee retention “when there is reasonable evidence that the circumstances that led to the final dissolution of the marriage related to desertion or adultery on the part of the other partner."

But Gramm declined to discuss details. “None of Your Business” headlined Monday’s Chicago Sun-Times front-page story.

Wheaton apparently followed the rule it had in place.  But the comments section includes interesting thoughts on what the rule should be, for example:

Christians are often accused of being inconsistent in discussing family issues--i.e., how can you be vocal on homosexuality but silent on no-fault divorce? Opposing no-fault divorce is one step toward consistency and one step away from hypocrisy. I think firing Christian professors who do not defend their life choices is one way to make that statement.

Versus:

Yes, they should fire the divorcing person as long as they fire everyone else who commits a sin or makes a mistake.

Tom

Father Dulles and Church Authority: A Response to Mike Scaperlanda

Mike Scaperlanda quotes what he regards as the wise remarks of Father Avery Dulles: "All Catholics are of course obliged to accept the definitive teaching of the Church on matters of faith and morals.  Even in the sphere of nondefinitive teaching, theologians should normally trust and support the magisterium and dissent only rarely and reluctantly, for reasons that are truly serious.  Dissent, if it arises, should always be modest and restrained.  Dissent that is arrogant, strident, and bitter can have no right of existence in the Church.  Those who dissent must be careful to explain that they are proposing only their personal views, not the doctrine of the Church.  They must refrain from bringing pressure on the magisterium by recourse of popular media." Mike thinks that the remarks about theologians apply a fortiori to non-theologians.

The remarks of Father Dulles raise many questions. What are the definitive teachings of the Church? Is the view that women can not be priests, as then Cardinal Ratzinger suggested some years back, one of them? Does the Church include the faithful? Is their reception of a doctrine necessary for a teaching to be definitive? Are all non-definitive teachings worthy of the respect Father Dulles suggests? Or was Father McCormick correct in suggesting that substantially less deference be afforded to various pronouncements the Church has made regarding women and sexuality? Does the prohibition of arrogant, strident, and bitter debate preclude civil, but robust and wise-open debate? Does the attempt to discourage debate in the popular media suggest that Commonweal and the National Catholic Reporter are illegitimate media? Is Mirror of Justice part of the popular media?

 What would have happened if Catholics had never objected to the teachings of the Church? Consider the statement of Father Robert Egan, S.J., in his excellent article, “Why Not Ordain Women,” (Commonweal, April 11): “If there were reason to believe the magisterium had never made a mistake, [one of the arguments against the ordination of women would be more understandable]. Yet the magisterium justified the institution of slavery, tolerated and endorsed a harsh misogyny and the oppression of women by men, defended the use of torture, blessed the Crusades, the Inquisition, and the burning at the stake of heretics, cultivated a disdainful and punitive attitude toward the Jewish people, insisted that sexual intercourse was morally tolerable only for the sake of procreation, condemned democracy, ridiculed the idea of religious liberty, denied the legitimacy of the idea of human rights, and condemned the separation of church and state. These last six teachings were only reversed at Vatican II, which some church leaders now claim was in perfect continuity with the church history preceding it.

 “All these teachings were probably considered ‘settled doctrine’ by the authorities who promulgated and wrote about them. That should teach us something about not trying to bind the future to the current stage of our own comprehension. . . . The church risks setting a bad example [in making theology a defense of magisterial teaching], modeling a behavior which, in any other social body, would clearly be considered falsifying and corrupting.”

 I cite Father Egan not for the purpose of igniting yet another debate about the history of the Catholic Church (though some may feel it necessary to dive in to the fire again). I simply state again that most American Catholics reject many teachings promulgated by the Vatican and the American Bishops. I doubt their attitudes toward the magisterium are in harmony with those of Father Dulles, and I think that some authors on this site do not agree with Father Dulles. Mirror of Justice could be a site in which professors (theologians or not) exchange their honest views about the magisterium. It can not be that if those of us who take a negative view of parts of the magisterium and the claims made for its authority are successfully discouraged from speaking. I doubt Mike thought his endorsement of the remarks of Father Dulles would really discourage discussion. It might suggest he thinks this would be a better site if it were exclusively designed to defend and interpret the magisterium with no questioning of it by non-theologians. But it is not. Not yet anyway.  If it were, a minority of us could move on. We could all potentially live long, happy, and [with God’s grace] at least partially holy lives. And we could agree to disagree whether the site were better or worse off.

Academic Freedom continued

Steve Shiffrin (here), Fr. Araujo (here), Susan Stabile (here), and others discussed academic freedom and the Catholic university in light of Pope Benedict's address to Catholic educators.  Avery Cardinal Dulles provides his usual wisdom in a May 2008 First Things article entitled "The Freedom of Theology."  Near the end of the essay, he writes:  "All Catholics are of course obliged to accept the defininitive teaching of the Church on matters of faith and morals.  Even in the sphere of nondefinitive teaching, theologians should normally trust and support the magisterium and dissent only rarely and reluctantly, for reasons that are truly serious.  Dissent, if it arises, should always be modest and restrained.  Dissent that is arrogant, strident, and bitter can have no right of existence in the Church.  Those who dissent must be careful to explain that they are proposing only their personal views, not the doctrine of the Church.  They must refrain from bringing pressure on the magisterium by recourse of popular media."

Given what we profess about the Church and given the general need for civility and love in all things, this approach seems right to me.  And, don't Cardinal Dulles' cautions about dissent apply with even greater force to us - at least those of us who are non theologians - because we are not learned in the nuances of the various debates? 

Three Cheers for the Naked Public (School) Square!

Marc DeGirolami has posted his paper, The Constitutional Paradox of Religious Learning.  I recommend it to anyone interested in the role of religion in public education, though I'm hesitant to embrace his recommendations.  Here's the abstract:

The constitutional paradox of religious learning is the problem of knowing that religion - including the teaching about religion - must be separated from liberal public education, and yet that religion cannot be entirely separated if the aims of liberal public education are to be realized. It is a paradox that has gone largely unexamined by courts, constitutional scholars and other legal theorists. Though the Supreme Court has offered a few terse statements about the permissibility of teaching about religion in its Establishment Clause jurisprudence and scholars frequently urge favored policies for or against such controversial subjects as Intelligent Design or graduation prayers, insufficient attention has been paid to the nature and depth of the paradox itself. As a result, discussion about religion‘s place in public schools often exhibits a haphazard and under-theorized quality. Yet without a deeper understanding of the relationship between religious learning and liberal public education, no edifying policy solutions are likely in an area so fraught with constitutional complexity and high emotion.

This Article aims to fill that gap by giving the constitutional paradox of religious learning its due. It offers a detailed theoretical account of the relationship between religious learning and the cultivation of the civic and moral ideals of liberal democracies. It draws on that account to develop a unique model of religious learning within liberal learning that takes its cue from the historic purpose of the public school. Since even today it is widely supposed and insisted that public schools still serve a vital role in developing civic and moral ideals in young people, this Article‘s comprehensive examination of the constitutional paradox of religious learning is both timely and necessary if the seemingly intractable skirmishes over religion, education policy, and constitutional law are capable of even a modest rapprochement.

An important topic, to be sure, and one that Marc handles with a good deal of theoretical sophistication.  Nevertheless, I found myself growing less and less comfortable with where the analysis was taking me.  Let me take a stab at articulating my discomfort.

Marc argues that public schools, in their effort to instill moral and civic values in their students, would be wise to include religious learning as an educational resource.  Marc explains that moral and civic education requires schools to facilitate a student's participation in an external and internal conversation.  Religious learning fosters the external dimension "because many students remain firmly committed to particular religious traditions and practices," and consequently, "if students who do not share that committment . . . have any chance of tolerating, understanding, and perhaps even appreciating and befriending their devout peers, they must learn about what would otherwise be totally alien religious traditions."  As for the internal dimension, Marc writes that religious learning is essential for those students who rely, "perhaps even in ways that they would not consciously acknowledge, upon religious concepts to support their moral intuitions and commitments."

Operating on the theoretical level, I'm on board.  It's only when I try to think of what this might look like in practice that my "spidey sense" starts tingling.  For example, Marc suggests that a teacher could lead a discussion about the Catholic Church's exclusion of women from the priesthood.  A variety of perspectives and arguments could be entertained without the teacher staking out a particular position.  Marc explains:

[The hypothetical student] Eve’s particular answers are not especially important. What is important is instead to recall that Eve is a high school student who is only beginning to learn and think about these questions. Her conclusions are likely to change – indeed, one hopes that they will change, many times mise-en-scène that are other kinds of civic and circumstances of her life add layers of experience and wisdom and as she continues to participate in the conversation of civic and moral learning. The point of religious learning is neither to arm Eve for more dexterous socio-political combat with a hostile world nor to fix certain views in the imagined amber of her moral personality. Whatever conclusions a high school student may reach, the aim of religious learning must always be to enrich her civic and moral conversational engagements. Religious learning is therefore imparted – taught about, studied, discussed, and reflected upon – within the same educational moral understandings. When difficult religious questions arise, teachers should avoid arriving at firm conclusions but they should not shy from presenting arguments, pointing out areas of tension with other moral ideals, and offering persuasive and less persuasive ways to reconcile those tensions. All of this must be done delicately, to avoid the impression that the teacher is pronouncing judgment on questions open to reasonable disagreement. But the primary objective remains educative: the teacher should cultivate in his students the ability to engage with and explore the voices of religious traditions for their own moral development.

As for the difficulty in presenting all relevant views about a particular religious subject, Marc notes that, even when schools teach the Civil War, some perspectives on the war's origins and impact are necessarily left out of the conversation, but that does not justify shutting down the conversation completely.

Here's the problem, in my view.  Religious education is not the same as education about the Civil War.  The latter is the conveyance of information about an empirically verifiable event, along with various interpretations of that event's significance.  The former is not exclusively (or even primarily?) cognitive; rather, it is stepping into a set of truth claims that comprise a worldview.  A student exposed to the "facts" of a religion is unlikely to be inspired, and may find his appreciation for (external) or confidence in (internal) the religion to be sorely lacking.  For example, imagine a secular 9th grade history teacher taking on the responsibility to foster among his non-LDS students an appreciation for the LDS church.  What is that going to look like?  A train wreck, most likely.

Schools are not particularly good at nuance, in my experience.  Even in second grade, I've cringed when my daughter's teacher has taken on the topic of the Iraq War.  (My daughter: "why can't we bring them home?  They're away from their families!")  It gets a bit better in high school, but I would shudder to think what a classroom discussion about women in the priesthood would look like.

A broader point: I agree that we should foster critical thinking skills in our kids.  But I do not agree that we should ask our public schools to foster critical thinking skills in our kids by helping them question their own religious beliefs.  There is a bit too much of an "education as self-creation" tone to Marc's analysis.  Why do I hope that my daughter changes her conclusions about women in the priesthood "many times?"  If she does, I will gladly offer supportive conversations and unconditional love, of course.  But should the goal of her religious education be an ever-shifting set of conclusions regarding her own religious beliefs?

I've only been a parent for eight years, so I realize that I still have a lot to learn.  But I've become more convinced that the heart of a child's religious education should occur at home.  Parents, in my experience, are much better at nuance than schools -- public or religious.  One upside about not sending my kids to Catholic school (amidst plenty of downsides, I admit) is that more of the kids' moral and spiritual formation is left open to us at home.  Even in Catholic school, the difficulty of facilitating religious learning by lots and lots of students at the same time seems, on occasion, to lead to an overemphasis on bright-line rules, with less time for the relational and experiential aspects of religious learning.  The problems I encounter in public school do not stem from the school's abdication of responsibility for moral formation, but from intrusive efforts at moral formation.  I'm still conflicted on this, but perhaps the naked public (school) square is not all bad?

"Uncloudy Day"

We were created to live eternally what Willie Nelson called the "Uncloudy Day."  Happy 75th birthday Willie; it has been one hell of a ride.

Moneylaw!

Yesterday, at my law school, (a) classes ended, and (b) the Dean announced a cool $15 million gift to fund the gutting and renovating of our current building (after we move into the gorgeous new one going up next door).  And, the weather was not too bad (for South Bend).  A good day.

Clarification re: "engagement" with China

In my recent post on H. Res. 821 and religious freedom in China (and Tibet), after saying "bravo" about the Resolution, I wrote (among other things):

Also, I don't know whether it makes sense to boycott the 2008 Olympics entirely, or if the cause of human rights in China is better served through "engagement" (or, "massive transfers of money through consumer spending") or condemnation.  At the end of the day, perhaps the best course is the former.  Still, this is a powerful image:

Regular readers of this blog know that I've been pretty tough over the years on China, its human-rights abuses, and -- in particular -- its failure to respect and protect religious freedom.  However, Susan's recent post, and Elizabeth Brown's comments, suggest that some readers might have interpreted my statement that "I don't know" if "engagement" well serves the cause of human rights in China, or my acknowledgment that "perhaps" it does, as a denial by me that (in Elizabeth's words) "[e]ngagement must mean something more than letting China get away with murder (or significant human rights violations) just because American companies are entranced with the possibility with selling to 1 billion plus Chinese".  (I said "I don't know" only because, well, I don't.  I'm not an expert in the relevant fields.  My instinct, for what it's worth, is to strongly recoil from our willingness to overlook the tyranny in China for the sake of cheap goods.)  I would have thought that my (somewhat snarky) use of the phrase "massive transfers of money through consumer spending" was enough to ward off any such interpretation but, just in case . . .   

Elizabeth also writes, "[g]lobal trade is more of a mixed blessing than most free market conservatives are willing to admit."  In this life, most blessings are "mixed blessings", so I'm certainly willing to "admit" -- and have never denied -- that global trade is one of them.

So, should the United States boycott the Olympics?  Susan?  Elizabeth?

“Civil Union Law: A Modest Proposal”?

Professor Robin West has recently published a short article in the current alumni magazine Georgetown Law which borrows from her recent book, Marriage, Sexuality, and Gender. The article entitled Civil Union Law: A Modest Proposal is available [HERE].

Her take on civil unions is very interesting to read; however, her proposal is not a modest one.

She begins her “modest proposal” with a critique of the institution of marriage and the traditional laws that regulate it by suggesting that marriage “poses a political question requiring democratic resolution.” I don’t think she specifies what the question (or problem) is that requires resolution. While her effort is cast as a noble one, it appears that the objective toward which she labors and the justification for it pose challenges not only to democratic resolution of underlying issues, as she identifies them, but to the common good of society and the posterity of its members. Her fascinating understanding of traditional marriage misunderstands that it is, by its nature, a covenant, which in vows and exchanges of consent expresses a complementary commitment of love. Her counterproposal to replace it is an appropriation of the problematic dicta of Casey that there is “a realm of personal liberty which the government may not enter… At the heart of liberty is the right to define one’s own concept of existence, of meaning of the universe, and the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Because of her subscription to this kind of exaggerated freedom, she sees 19^th century marriage as “a patriarchal institution” and marriage of the mid-20^th century as “a purely traditional institution, widely viewed as delineating gender roles, sexual mores, and a conception of the good life that jointly constitute the natural foundation of civil society.”

For her, marriage was transformed after 1970 and became something different in the early 21^st century mind: the product of Casey’s understanding of liberty—less of an enduring institution and more of personal choice. As she asserts in her critique, “Parties [now] enter marriage when and if they want to and with partners of their own choice”, and it is a “custom design” institution of their own making. Cohabitation may or may not lead to marriage, and Professor West, unlike myself, is not troubled by either path to which cohabitation may lead. But, she should be. The reason she is not is because she suggests that persons should be able to “contractually mimic the benefits of marriage without entering the legal relationship.” [Emphasis mine] I think this contention of hers overlooks the fact that marriage is supposed to remind individuals not only of self-established rights freely chosen but also freely embraced responsibilities they owe to the other spouse, their children, and the society that does or should encourage them in their spousal, parental, and societal obligations.

Professor West intimates early in her “modest proposal” that marriage has “become a much better deal for both sexes, but most profoundly, for women.” Her rationale for this appears to be largely based on the notion that potential or existing parties to marriage now have the right to be left alone without much, if any, sense of duty, and can take the relationship to wherever they choose to go with it. As she states, the marriage partners “have the power to avoid marriage altogether, if they so desire, or to exit it, if need be.” These points apply particularly to women, who are also free to become mothers “outside of marriage” and can do so “with very few legal impediments”, such as the right to abort their children. Once again, Casey’s formula for liberty has played a prominent role in her “modest proposal.” The good that has been achieved for Professor West in the institution’s evolution is presented in her declaration that marriage “has become a more liberal institution, and women are somewhat more equal, and much freer, as a result.” Yes, indeed, members of both sexes appear to be very free of any expression of responsibility to themselves, to their spouse, to their children, or to society as one follows the explication of her “modest proposal.” But I do not view this as a good as does Professor West; rather, I see it as a tragedy or one in the making.

At this point she professes that marriage “has become a political question, and hence a matter for public deliberation.” The tribute that she has paid to marriage now begins to evaporate. I would not disagree that marriage has surely been the subject of laws made by most state, and previously colonial, legislatures. However, I think what the author has in mind is that marriage can remain a “political question” insofar as the political and legal mechanisms of American society reflect her views of marriage and what it should be and by what it should be replaced. When these mechanisms do not concur with her position, let us use the example of the legislative efforts to restrict or prohibit same-sex marriages or civil unions or to define marriage as the union of one man and one woman, I think she would not allow for this sort of public deliberation.

In support of my interpretation of her “modest proposal” I consider her statement that marriage is not only an issue of “individual choice” (such as terminating a pregnancy) but something that reflects and supports her views on what is normative and what is not. While she seems to assert the contrary in her statement, “it is the need for political judgment, not individual choice, which now presses upon us,” it is clear from the rest of her “modest proposal” that civil unions—be they heterosexual or homosexual—will become the substitute for marriage and the obligations marriage has entailed for so long. As she states,

My long-range goal…is to redirect the movement for same-sex marriage in a way that will not compromise its commitment to formal equality, but that will also address directly definitional and normative questions about the nature and point of marriage. I want to fashion a proposal for political reform of marriage that will turn the debate away from that of who may enter, and instead toward the question of the value of the house then occupied.

Her immediate goal is to place into the “public debate” the “reform” of marriage—which for her is the establishment of civil unions, as she defines them, as the new norm. While she professes that she is not in the camp that wants to eliminate marriage, her “modest proposal” will do just that because, as she states, her understanding of civil union will “over time, become the legal mechanism by which any two people—regardless of sexual orientation—who wish to commit themselves to the lifelong care of each other and their shared dependents, formalize and sanctify their intention and desire to do so.” She notes that this “modest proposal” would provide the sanction and protection of the state by material and moral support. Her justification for this state role is founded on undefined “desirable social ends” in which the state has “a not inconsiderable interest in promoting.” My skepticism of this portion of her “modest proposal” is founded on her earlier recitation of the expression of liberty she wants associated with civil unions minus the responsibilities that traditional marriage incurred. Here she asserts that civil unions would be permanent; but is this really her objective? I think she has put aside her earlier concerns about traditional marriage that focused on what might constitute needs to end the traditional marital bonds by retaining the power “to exit it [the civil union], if need be.” What is permanent in an early assertion becomes temporary in a following one. The nature of her proposal is not so modest when one considers that, if accepted, it will replace marriage with a “mimic”, to use her word, that will make its partners “fully entitled to all the privileges, rights, and benefits currently given to married couples.” As she states, “There would, ideally, be no practical or legal difference between the two legal regimes, except that civil union would be considerably more ‘open’ in terms of who might enter.”

It is vital to the survival of marriage, as American society has long embraced it, to realize that Professor West’s “modest proposal” is a wolf in sheep’s clothing: it opens the door to many combinations and permutations, such as multiple-member “civil unions”, that take little regard of anything else other than the parties’ desires. While she appears to insist that a civil union will be restricted to a partnership of two, what would prevent those persons seeking equality for, let us say, polygamous unions to join in the “public debate” so that their claims to “equality” are satisfied too? Building upon Professor West’s “modest proposal,” why should these citizens who have a role in the “public debate” have any less equal interest in Professor West’s conclusion that there “just isn’t any good reason for the state to take an interest in whether that couple’s sexual activity is contracepted or not; or whether it is coital, digital, anal, oral, or missionary; or whether it is masturbatory, coupled, or involves multiple partners; or whether it is monogamous, polygamous, polyamorous, or open; and so on.” Since the state has no legitimate interest in these matters, why should it have a legitimate interest in the number or the age of the parties to the civil unions that are at the core of her “modest proposal”?

In short, Professor West’s “modest proposal” is a recipe for whatever an association of people want the union to be because it “expand[s] choice” by intensifying “the cumulative effect of many individual choices [that are] in turn guided by evolving social and cultural norms.” She is open to her “modest proposal” defining the civil union “so that it is available not only to same-sex conjugal couples, but also as an option for straight couples, couples consisting of ambiguously sexed individuals, and nonconjugal couples of any combination of sexes and sexual orientations, as well.” And when this is accomplished, who knows where this new “norm” would go after it has been accepted as a parallel institution that would not complement but would compete with marriage?

But Professor West suggests that this is not the case when she states,

A heterosexual couple could either civilly marry, or civilly unite — the difference at the point of licensing might be (as Chai Feldblum has helpfully suggested in private conversation) nothing but the color of the form filled out. The choice between them also might, however, reflect the couple’s view regarding the nature of the state’s interest in their union.

But, I ask, what happens when the public debate, the political process, and the state conclude that there is no need for different colored forms when one will do, regardless of its color? While Professor West again suggests that civil unions in conformity with her “modest proposal” would be more durable than marriage, she offers nothing that will justify this bold assertion. Moreover, she concedes that civil unions will be no more durable than conventional marriage when she concludes that a civil union “is open to change; it is intentionally malleable.” And this would include the change and the malleability afforded by dissolution. She concludes her article by stating that a civil union should not be viewed as transitional; however, under her “modest proposal” we ought to consider marriage as the “transitional institution” since it is “historically rooted in irrational traditions, imposed for centuries on unreflective boys and powerless girls, serving rarely explicated and never well understood state needs for eugenics, population control, female subordination, and sexual discipline.” I fear that she does not see that it is her “modest proposal” which is far more transitional since there is nothing to anchor it other than human caprice.

Professor West has crafted a fascinating proposal, but it is by no means a modest one.    RJA sj

Child protection at its finest

For anyone who doubts the dangers to family autonomy posed by an overreaching (and apparently incompetent) state, consider the case of an archaeology professor who mistakenly gave his 7 year old a bottle of Mike's Hard Lemonade at a Detroit Tigers baseball game.

"The Supreme Court at a Crossroads"

The cover of the April 28 issue of America caught my eye:  The cover photo depicts the intersection of "church" and "state" streets, and adds the caption, "The U.S. Supreme Court at a Crossroads."  Dale Recinella has a piece called "The Court and the Death Penalty" and Antony Barone Kolenc contributes an essay entitled "A New Majority and the Culture Wars."

Recinella discusses what "one Catholic Justice could do" to "end[] the death penalty".  Now, I would also like to see an "end[ to] the death penalty", but I was not moved by Recinella's assertion that "there is manifest legal justification" for "one of the five Catholic justices" to "change his position on capital punishment".  Nor is it clear to me why it should be relevant to a Catholic Justice, when he or she is deciding how to vote in a death-penalty-related case, that "U.S. death penalty jurisprudence contravenes the explicit commands of Scripture", assuming that it does.  Recinalla also contends that, if just one of the Catholic justices changes his mind, "the use of the death penalty would end in the United States."  It is not at all clear to me, though, that the four non-Catholic Justices believe they are constitutionally authorized, or are themselves inclined, to outlaw entirely the death penalty.  (Would they impose increased limits on its use?  Certainly.)

Like Recinella, I welcome the possibility that Catholic arguments and commitments will, soon, re-shape our crime-and-punishment practices.  But, I'm hesitant to agree with Recinella that this re-shaping will, or should, come about because it is imposed by Catholic Justices.

In "The Court at a Crossroads", Kolenc writes that "big change may be coming in America's culture wars -- a legal shift that could alter the so-called separation of church and state."  Could be.  Kolenc is right, I think, that the departure of Justice O'Connor creates an opening for revisions to the Court's doctrine -- specifically, for de-emphasizing her "endorsement test" -- but I don't really expect any dramatic change in outcomes.  (If one of the "conservatives" is replaced by President Obama or Clinton, I would think that we might well see some backtracking, particularly when it comes to public-funding cases.)

A quibble:  In one place, Kolenc says that "Scalia is often joined in his campaign [for a greater tolerance of religion in the public arena] by Roberts, Thomas, and Alito."  I can't think of any religion-in-public-life cases, though, decided since Alito joined the Court, so this claim would have been better phrased as a prediction than a description.

Culture Watch: "Gossip Girl"

I'm aware of the Miley Cyrus photo controversy, but I was more taken aback by a billboard and television ad campaign for a show called "Gossip Girl."  The campaign utilizes the well-known (and obscene) "OMFG" with a photo of two young people in a pretty unmistakable sexual pose.  Just how young are they?  It was not until tonight that I learned that the show is about high schoolers, and the marketing is aimed at high schoolers.  I'm not all that old (though my students will say that the content of this post is evidence that I indeed am old), but I'd like to note how quickly social norms have changed, even since I was in college and Beverly Hills 90210 debuted as the teen show of choice.  Yes, the characters on 90210 had sex.  But the marketing images are dramatically different, and I'm pretty sure that images matter.  (You can see the images below the fold.)  What norms do these images establish for teenagers today?

UPDATE: Denise Hunnell answers my question from the perspective of a CCD teacher.  For her seventh graders, she writes, the most difficult sacrament to understand is Holy Matrimony.  The cultural messages kids have received by seventh grade make the Catholic image of marriage "extremely counter cultural and almost unbelievable."  Indeed, "It is easier for them to believe that the Eucharist is the Body, Blood, Soul, and Divinity of Christ than it is for them to believe that sex belongs in marriage and marriage is a life-long commitment."  She has written more on her experience here.

The return of Rev. Wright

Rev. Jeremiah Wright's appearance today at the National Press Club has sparked more commentary than one person could ever read, but I was especially struck by the reaction of Andrew Sullivan, a noted Obama supporter who was willing to overlook the sound bites plucked from years of Wright's sermons:

But what he said today extemporaneously, the way in which he said it, the unrepentant manner in which he reiterated some of his most absurd and offensive views, his attempt to equate everything he believes with the black church as a whole, and his open public embrace of Farrakhan and hostility to . . . Zionism, make any further defense of him impossible. This was a calculated, ugly, repulsive, vile display of arrogance, egotism, and self-regard.

And while I often disagree with Bob Herbert's column in the New York Times, in this case he seems to be right on the mark:

For Senator Obama, the re-emergence of Rev. Wright has been devastating. The senator has been trying desperately to bolster his standing with skeptical and even hostile white working-class voters. When the story line of the campaign shifts almost entirely to the race-in-your-face antics of someone like Mr. Wright, Mr. Obama’s chances can only suffer. . . .

Mr. Obama seems more and more like someone buffeted by events, rather than in charge of them. Very little has changed in the superdelegate count, but a number of those delegates have expressed concern in private over Mr. Obama’s inability to do better among white working-class voters and Catholics.

More on China and Human Rights

My colleague Elizabeth Brown sent me the following comment regarding Rick and my posts (here and here) on human rights issues in China:

"When I was in Bhutan in 2002 and in China in 2006, I was told that China's solution to its minorities was to flood them with Han Chinese.  I was told that Tibet cannot escape China's grasp because too many Han Chinese have been given incentives to move into Tibet.   Tibet is no longer Tibet, any more than South Dakota is Lakota. This was certainly true in western China where the native Uighurs have been inundated with Han Chinese who are given the best jobs and substantial incentives to relocate. 

"China has been creating a Potemkin Village in Beijing to put on a good face for the 2008 Olympics.  One problem that they can't hide is their horrendous environmental pollution.  You can almost eat the air in Beijing.  I would not want to be a track and field athlete at the 2008 games.

"Engagement must mean something more than letting China get away with murder (or significant human rights violations) just because American companies are entranced with the possibility with selling to 1 billion plus Chinese.  Most of what American companies produce in China is sold outside the country, not in it.  Global trade is more of a mixed blessing than most free market conservatives are willing to admit."

China and Human Rights Violations

I'm with Rick in applauding H. Res. 821.  However, at the end of his post, Rick suggests that engagement may be a better course than condemnation. 

The problem with that is we have had years of engagement with little positive effect.  China pledged when it was bidding to host the 2008 Olympics was that it would improve human rights.  It clearly has not made good on that promise.  Indeed, as the House findings suggest, things have gotten worse there.  China's big achievement (although this was prior to its most recent crackdown on Tibetan dissidents) was that is was dropped from the list of the 10 most egregious human rights violators, which simply says it is not quite as bad as places like Myanmar and the Sudan.  That's not much to brag about.

I'm not sure I think boycotting the Olympics is that best course of action, although I think the decision to allow China to host the Olympics was a bad one.  I admit to being less than unbiased on this subject; the time I spent living in Tibetan communities has made me somwhat sensitive to China's treatment of the Tibetans in particular.  But, from any standpoint, I think it hard to come to a conclusion other than that the engagement strategy has been a failure.

Bill Stuntz on America's Huge Prison Population

Here.

H. Res. 821 on China and religious freedom

Rep. Thad McCotter, of Michigan, has introduced H. Res. 821, "Condemning Communist China's discrimination, harassment, imprisonment, torture, and execution of its prisoners of conscience".  Here's the bill text.  Here're the opening paragraphs:

Whereas according to the United States Commission on International Religious Freedom's (`USCIRF') 2007 Annual Report, `All religious groups in China face some restrictions, monitoring, and surveillance, ... and religious freedom conditions deteriorated for communities not affiliated with one of the 7 government-approved religious organizations, ... and those closely associated with ethnic minority groups. Religious communities particularly targeted include ... `underground' Roman Catholics, `house church' Protestants, and various spiritual movements such as Falun Gong';

Whereas according to the USCIRF 2007 Annual Report, in Communist China, `There continue to be reports that prominent religious leaders and laypersons alike are confined, tortured, `disappeared', imprisoned, or subjected to other forms of ill treatment on account of their religion or belief';

Whereas according the United States Congressional-Executive Commission on China's 2007 Annual Report, `The Commission noted a more visible trend in harassment and repression of unregistered Protestants for alleged cult involvement starting in mid-2006 ...' and `an increase in harassment against unregistered Catholics starting in 2004 and an increase in pressure on registered clerics beginning in 2005';

Whereas according to the United States Department of State's 2006 Country Report on Human Rights practices in China, `Government officials continued to deny holding any political prisoners, asserting that authorities detained persons not for their political or religious views, but because they violated the law; however, the authorities continued to confine citizens for reasons related to politics and religion';

Whereas according to Chapter II Article 36 of the constitution of Communist China, `No state organ, public organization or individual may compel citizens to believe in, or not to believe in, any religion; nor may they discriminate against citizens who believe in, or do not believe in, any religion';

Whereas according to Article 18 of the Universal Declaration of Human Rights, `Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance'; . . .

I don't know how "politic" this kind of stuff is.  Still, I say "bravo".  Also, I don't know whether it makes sense to boycott the 2008 Olympics entirely, or if the cause of human rights in China is better served through "engagement" (or, "massive transfers of money through consumer spending") or condemnation.  At the end of the day, perhaps the best course is the former.  Still, this is a powerful image:

Charles Taylor on religion and "critique"

Here is Charles Taylor, over at The Immanent Frame:

What are we to think of the idea, entertained by Rawls for a time, that one can legitimately ask of a religiously and philosophically diverse democracy that everyone deliberate in a language of reason alone, leaving their religious views in the vestibule of the public sphere? The tyrannical nature of this demand was rapidly appreciated by Rawls, to his credit. But we ought to ask why the proposition arose in the first place. . . .

The state can be neither Christian nor Muslim nor Jewish; but by the same token it should also be neither Marxist, not Kantian, not Utilitarian. Of course, the democratic state will end up voting laws which (in the best case) reflect the actual convictions of its citizens, which will be either Christian, or Muslim, etc, through the whole gamut of views held in a modern society. But the decisions can’t be framed in a way which gives special recognition to one of these views. This is not easy to do; the lines are hard to draw; and they must always be drawn anew. But such is the nature of the enterprise which is the modern secular state. And what better alternative is there for diverse democracies?

Now the notion that state neutrality is basically a response to diversity has trouble making headway among “secular” people in the West, who remain oddly fixated on religion, as something strange and perhaps even threatening. This stance is fed by all the conflicts of liberal states with religion, past and present, but also by a specifically epistemic distinction: religiously informed thought is somehow less rational than purely “secular” reasoning. The attitude has a political ground (religion as threat), but also an epistemological one (religion as a faulty mode of reason). . . .

There's a lot more.  At Balkinization, Andy Koppelman has posted some thoughts in response:

Taylor’s analysis implies that absolute neutrality is unattainable. Any state position will rely on some common ground, and no common ground is universal.

The answer to this puzzle, I think, is to note that there exist a large variety of possible modes of neutrality. The absolute neutrality toward all conceptions of the good proposed by Ronald Dworkin and Bruce Ackerman are only one available flavor of neutrality.

The range of possible justifications for any version of neutrality is broad. The following is a crude taxonomy of typical strategies of argument. It probably does not exhaust the possibilities, and arguments for neutrality typically rely on more than one of these moves.

One strategy is the argument from moral pluralism, which holds that there are many good ways of life and that the state should not prefer any of these to any other. Another is the argument from futility, which holds that some perfectionist projects are doomed to failure. The argument from incompetence holds that the state should be neutral about things that it is likely to get wrong. The argument from civil peace proposes that some issues be removed from the political agenda in order to avoid destructive controversy. Finally, the argument from dignity argues that some political projects fail to properly respect citizens’ capacity for free choice.

Different formulations of these arguments have persuaded different people. Everyone probably accepts most of these five arguments for neutrality, at least in some form, as applied to some question. Conceptual analysis cannot, of course, say whether or in what form you ought to accept them. There is probably an infinite number of ways in which any of them could be formulated, and an infinite number of ways in which those formulations could be combined. Shifting from any formulation of each rationale to a slightly different one will probably yield a slightly different prescription for neutrality. Neutrality is not a fixed point, but a multidimensional space of possible positions.

Both of these posts are well worth reading in full.

John Green (Pew Forum) on Catholics and Obama

Apropos the Sisk/Shiffrin exhange on Obama's problems with Catholic voters, here are thoughts on the subject from religion and voting expert John Green of the Pew Forum on Religion and Public Life.

Spring and Fall and the Catholic Vote in the Presidential Race

In response to my post charting the trends in the Catholic vote during the Democratic Presidential primaries, Steve Shiffrin argues that “[w]hat the Democratic primaries show is that Obama loses the Catholic vote to Clinton. That data shows little about how Obama would do with the Catholic vote against McCain.” I appreciate his kind response to my posting (it's nice to know that someone actually read it), and I acknowledge his forceful point.

Looking at the data alone, Steve is right — mostly. How Democratic primary voters allocate themselves among Democratic candidates would not ordinarily tell us much of anything about how those Democratic primary voters would respond to a later general election between one of those Democratic candidates and the Republican contender. Still, looking only at the data in this remarkable case, the lop-sided distribution of the numbers — showing Senator Obama losing the Catholic vote by margins that now exceed 40 points — and the persistence and stability of similar numbers from state to state do suggest something quite powerful and enduring is at work here. An empirical scholar seeing such a dramatic slope of the data in one direction would hypothesize that a significant variable (or set of variables) is at work, some powerful influence that may serve as an explanatory model.

While the data by themselves are only descriptive — showing, as Steve rightly says, only that Senator Barack Obama loses the Catholic vote to Senator Hillary Clinton — the insistent and more interesting question is what has caused these sizeable loses. What has influenced Catholic voters to turn away from Obama in such overwhelming numbers and will those significant factors translate into influences on voting trends in the different context of the fall election? On this question of influence, we move away from empirical analysis (absent a better set of well-measured variables and a better specified model with which to work than is available through exit polling results at present) and into the realm of interpretation and judgment. Here our opinions and impressions, which may be better or less informed, will play a substantial role in our evaluation of what is happening on the ground in the Democratic primaries — and why.

So I’d invite our readers to ask the following questions and answer them for yourselves, based on your own observations of the candidates, information about the campaign, and knowledge of the Catholic electorate (which of course is hardly monolithic, as Steve rightly says):

• What are the variables giving rise to Clinton’s huge victories over Obama among Catholic voters? Are Catholic voters powerfully attracted toward Clinton, meaning that these primary results reflect little aversion toward Obama (and thus tell us little about how these voters will respond in the general election should Clinton then drop out of the picture)? Or are Catholic primary voters strongly turned-off by Obama, finding him unpalatable as a candidate?

• If it is the latter, are these causes of alienation from Obama likely to persist into the fall election? Indeed, is it possible that additional factors relevant to this estrangement will emerge or be emphasized in the fall campaign, factors that were not fully explored in the Democratic primaries or on which there was little contrast between the Democratic candidates?

• And, finally, even if the Catholic margin against Obama’s candidacy is a direct rejection of him as a candidate for reasons that have continuing resonance in the general election, is Senator John McCain likely to fare better on those factors and become an acceptable (or at least less objectionable) alternative for these voters?

If the answers to these interpretive questions are unfavorable for Obama, to a greater or lesser degree, then the large margins of defeat for Obama among Catholic voters in the primary may well presage a dismal outcome for him in the November election (at least among Catholic voters, who usually side with the winner).

In my prior postings (here and here), I’ve offered my own tentative analysis, impressions, and speculations on some of these matters. I won’t repeat that here. Yes, I do agree that every prognostication in such a dynamic phenomenon as a political campaign is risky, and thus my attempts to extrapolate from the data into the future are fairly subject to debate and disagreement or dismissal. Still, if those in the Obama campaign believe his landslide losses among Catholic voters in the primaries carry no message for the fall election, I gotta tell ya — I think they are whistling past the graveyard.

Greg Sisk

No St. Thomas Law Public-Service Credit for Work at Planned Parenthood

This week our dean at St. Thomas Law, Tom Mengler, ruled that students seeking to satisfy our 50-hour public-service requirement for graduation cannot get credit for hours volunteered at Planned Parenthood, even if the specific work they do is not abortion or contraception services.  The Cardinal Newman Society (CNS) applauds the decision here.  I'm not trying to curry favor with my dean when say that I (along with lots of others) applaud it too.  Since some of Tom's explanatory email has already been quoted by the CNS, I think it's best just to post the whole email and let it speak for itself.

Tom B.

++++++

Dear friends,

I write to resolve a community dispute regarding a decision made yesterday by our Public Service Board (PSB).  Yesterday, the PSB voted to authorize public service credit to a student who would like to volunteer at Planned Parenthood.  Since then, Dean Organ and I have received a number of emails or visits from students and faculty questioning the PSB’s decision, as well as questioning some of the language and processes under which the PSB functions.

For now, I would like to set aside for another day some of the broader questions that members of this community, including members of the PSB, have raised with respect to modifying the PSB guidelines.  These Guidelines were adopted by the faculty and can be amended, therefore, only by a favorable vote of the faculty.

I do think it is important, however, for me to treat as a formal appeal to the Dean the specific concerns that many from this community have voiced regarding the PSB’s decision to certify volunteer work at Planned Parenthood as “qualifying public service.”  [I'm omitting a short discussion here about the appeal procedures.--TB]

As the PSB Guidelines make clear, they are designed to encourage an ethic of servant-leadership within this community.  The Guidelines also clarify that qualifying public service is restricted to “any type of volunteer work that is consistent with the mission of the School of Law and the University of St. Thomas.”  Not surprisingly, this broad encouragement of public service activity places few restrictions on the types of volunteerism for which our law school community should be congratulated.

One restriction, however, flows directly from the University of St. Thomas as a Catholic University, and of the School of Law as an academic unit that seeks to live its Catholic identity.  At this University, there is helpful precedent.  Nine years ago in 1999, Father Dennis Dease as President of this University decided an issue very similar to the one that presents itself to our law school community.  Father Dease denied externship credit to an undergraduate student who wished to volunteer at Planned Parenthood on grounds that St. Thomas cannot endorse -- with academic credit -- student service at an organization whose mission is fundamentally in conflict with a core value of a Catholic University.   Because Planned Parenthood is a leader in the abortions rights movement and because opposition to abortion is one of the core values of the Catholic faith, Father Dease refused to authorize the extension of academic credit to academic or service work at Planned Parenthood.

I regard Father Dease’s decision in 1999 as controlling -- and for this reason I must reverse the decision of the PSB.  Volunteer service at Planned Parenthood, whatever the nature of that service, advances the mission of Planned Parenthood, an organization whose mission is fundamentally at odds with a core value of the Catholic Church.  Such service does not constitute “qualifying public service” for purposes of satisfying the School of Law’s graduation requirement of 50 hours of public service.

I understand and appreciate that my decision in this matter will be met with mixed reaction.  At the School of Law, we have set a course that attempts to live out our Catholic identity in a way that, on the one hand, is true to this identity and, on the other hand, is welcoming and embracing of those who differ.  I regard this decision as an effort to walk that path.  Because our Catholic identity begins with the value of extending respect and dignity to every individual, rarely should it require us to make decisions that cause unhappiness or discontent.  This is one of those rare circumstances, however, in which living out our Catholic nature as a Catholic law school may cause a difference of opinion and feelings among students, faculty, and staff.

Finally, I would like to make clear that my decision should not be read as critical of the fine work of the PSB.  The student members of the PSB have consistently worked effectively and tirelessly to administer our public service requirement, to make public service opportunities available to this community, and to encourage all of us to become servant leaders.  With regard to this particular issue, the PSB debated deliberately and reflectively on their roles and attempted to reach a decision that was true to our Catholic identity and encouraged each of us to draw on our own faith and values to become professionals of character and integrity.  I commend the PSB on the seriousness with which it undertook to resolve a difficult question.

Sincerely,

Dean Mengler   

Racism Charges Dog Planned Parenthood

"Dr. Alveda King, niece of the late Reverend Martin Luther King, Jr., has called Planned Parenthood a "racist organization" with a "racist agenda."  She and others in the pro-life black community are calling for Congress to terminate all federal funding to Planned Parenthood.