December 31, 2010
The Catholic Legal Educator
Teachers for All Seasons—Lord, give me a sign (Matthew 28:16-20)
On the Vigil of the Solemnity of the Blessed Virgin Mary, the Mother of God to whom our web site project is dedicated, I would like to offer the third and final installment of my disciple/teacher reflection.
Prior to his ascension into heaven, Jesus exhorted his disciples with this command, sometimes referred to as the Great Commission: “All authority in heaven and on earth has been given to me. Go therefore and make disciples of all nations, baptizing them in the name of the Father and of the Son and of the Holy Spirit, and teaching them to obey everything that I have commanded you.” (Matthew 28:18-20) There are occasions when the meaning of these words are clear to us today, but there may be occasions when an illustration or two might help the contemporary disciple understand what he or she is called to do in teaching what Jesus commanded. Like Gideon, our petition for assistance is raised, “Lord, give me a sign!” (Judges 6:17) Or, in today’s vernacular: I need a little help here! I think those of us who teach law to future leaders of civil society have a great role and enormous responsibility in this Commission.
Disciples of today have been blessed with many signs that involve the world that surrounds us and how we should respond to this world—those signs which recommend proper conduct or action and those which do not. In an American environment of discipleship, there are two sources of instruction that serve as some of these signs regarding proper conduct: those from the local bishops and those from the Universal Church. In the domestic context, these signs emerge from either the United States Conference of Catholic Bishops (USCCB) in Washington, D.C. or from individual bishops to the faithful of their dioceses. In a universal context, they are issued by the Pope in the exercise of his office and by the various dicasteries of the Holy See.
One particularly important sign from the domestic scene was issued a few years ago. The USCCB in June of 2004 exercised its role as the college of American bishops to teach the Catholic faith and moral law when they issued a Conference statement on the subject of Catholics in public life. As they stated, “We have the duty to teach about human life and dignity, marriage and family, war and peace, the needs of the poor and the demands of justice.” They noted that the legal and political system must not be used as a tool of evil, and the bishops asserted that the legal system sometimes fails to protect “the lives of those who have no protection except the law.”
The bishops continued by stating that those persons responsible for making the law have an obligation to remedy morally defective laws, and they extended their good offices in providing counsel to those in need of instruction on how to accomplish this objective that protects the moral order and the common good. The USCCB acknowledged its duty to persuade all Catholics to support the principles the bishops exhort regarding how the faithful are called to act in public life.
Another important sign came in November of 2002 when the Congregation for the Doctrine of the Faith (CDF) in a doctrinal note for the benefit of the universal Church addressed some questions regarding the participation of Catholics in public life. While the text was directed to the bishops of the Church, it was also directed “in a particular way” to “Catholic politicians and all lay members of the faithful called to participate in the political life of democratic societies.” That includes us, especially those of us who help form tomorrow’s judges, legislators, and government executives! The CDF noted that the success of how citizens make political choices is contingent upon their proper understanding of the nature of the human person. And where would they receive information about this?
Special attention was given by the CDF to “the rightful autonomy of the participation of lay Catholics.” The CDF as a teacher helped to clarify the role of the laity in public life—be the Catholic practitioner of the law, judge, administrator, legislator, or citizen. The CDF, aware of the problems of merging the Church and the State, articulated a careful but clear instruction to the laity. It defined their coexistence in such a way that the Church and the State each have their proper roles in the world. However, it is the citizen, whose conscience has been formed by moral teaching of the Church that is directed to the common good, who has the right and the duty to pursue the truth and to promote and defend moral truths that bear on society, authentic freedom, justice, and the advancement of human rights including the non-derogable right to life.
The fact that a source of the truth upon which a citizen relies may be the teachings of the Church does not disqualify (1) the Church from teaching that which may be used by the citizen nor (2) the citizen from using that which the Church teaches regarding the moral issues affecting law and politics. The Church does not interfere with the State’s proper function, but She does retain and must exercise Her proper role to provide instruction on moral truth that can be appropriated and used by the citizen in his or her participation in the exercise of the democratic process. The Church does not intrude into the affairs of the State by exercising political power that She does not possess; however, the citizen is free to rely on the truth which the Church teaches instead of the relativism or secularism which others promote and sometimes urge on citizens as they exercise their judgments made in the political processes in which the citizen participates.
It is problematic to insist that the citizen must observe an unnatural dichotomy in his or her life insulating the spiritual and moral from the public and the political. In this regard, we can recall the Johannine text of Jesus farewell: “I am the vine, you are the branches. Those who abide in me and I in them bear much fruit...” (John 15:5) Those who would insist on defeating participation by the disciple-citizen would deny legitimate and authentic pluralism and would impose a regime of intolerant secularism on the civic community. This can result in the strong oppressing the weak, and it would transplant the environment of the 1930s and 1940s described by the German sacristan to the United States to which I previously referred in an earlier posting in this series to the domestic scene of today. In quoting Pope John Paul II, the CDF notes that the authentic freedom of the citizen does not exist without the truth: “Truth and freedom either go together hand in hand or together they perish in misery.” (Fides et Ratio, N. 90) And where might we learn about the truth and what distinguishes it from falsehood?
A number of models of behavior reflecting the truth and related principles would be Thomas More and John Fisher from the early sixteenth century and the late Gov. Robert Casey from the late twentieth century. All were citizens. John Fisher was Bishop of Rochester, and Thomas More and Robert Casey were public officials who held high appointive or elective office. Fisher and More relied on their informed conscience molded by Church teachings and dared to practice the truth they learned to the peril of their lives. More was proclaimed the patron of statesmen and politicians by the late Pope John Paul II. In conferring this honor on Thomas More, John Paul emphasized the “unity of life of the lay faithful.” More and Fisher both relied on properly enlightened consciences that exercised fundamental truths in the field of political and legal issues that were punctuated with grave moral concerns.
Closer to home, geographically and temporally, is the example of the late Gov. Robert Casey. He was a staunch believer in the rights of human beings—not just some, but all human beings. He was a progressive leader who sought relief and comfort for the oppressed. He was also a Democrat who disagreed with his party and its stance on abortion. If he were alive today, I suspect he might expand the realm of these disagreements. In 1992 he requested the opportunity to address his Party one last time at its quadrennial national convention; however, he was denied the honor. Curiously, the Democrats allowed several pro-abortion Republicans to address the convention. As one commentator noted, Gov. Casey was humiliated by the party he faithfully served for so long because he would not go along “for fellowship” (recalling the words of Thomas More in Robert Bolt’s A Man for All Seasons) on the abortion issue.
Teaching has something to do with the models offered by More, Fisher, and Casey faced in their respective lives and careers in public service. Ah, yes, there it is again: teaching. We can’t seem to remove ourselves from it! Reiterating instruction on the pressing moral and social issues of the day is the proper role of a teacher, and exercising this responsibility is not mounting scorn on those who are the pupils of this teaching. It is the exercise of a solemn obligation and fundamental moral duty of the bishops to inform the consciences of those entrusted to their pastoral and teaching duties. (Lumen Gentium, NN. 21, 27) But what they teach also becomes the responsibility of those other teachers who collaborate with them as fellow laborers in the Lord’s vineyard. Any Catholic—clerical or lay, office holder or not—cannot compartmentalize the discipleship and his or her public life and insulate one from the other. All Catholics, regardless of their clerical or lay state, are subject to observe and abide by the same teachings of the Church. (Lumen Gentium, NN. 24-25) It becomes the respective duty of each disciple, be one clerical or lay, to live these teachings holistically in one’s life. These teachings cannot be followed when it is convenient; they cannot be honored at one moment and ignored at another when one feels like it. A Catholic cannot conveniently follow those teachings that he or she prefers and ignore those which are not in accord with his or her personal favor that may be influenced by powerful or influential lobbying groups.
Ultimately, each person who chooses to remain a Catholic exercises the freedom to adhere to the Church’s teachings or not. That is the authentic freedom of each Catholic regardless of his or her status in the Church as lay or clerical. But by proclaiming that one is a Catholic, one has declared to the world that he or she is a Catholic because of this exercise of authentic freedom. But when one elects not to follow these teachings on all fronts, can it be said that this person is in communion with the Church? If the bishop fails in his duty, can he be in communion with the Church? If the office holder fails in his or her duty, can he or she be in communion with the Church? If a teacher who bears the name Catholic fails in his or her solemn duty, can he or she be in communion with the Church? When this occurs, one removes himself or herself from the communion by severing ties between the branches and the vine.
Those of us who use the moniker “Catholic” in identifying themselves grow from the vine of Christ on which we are branches. If we are to be true to our calling and identity as disciples, we need to acknowledge the role of the Great Commission in our lives. So, for so long as we choose to remain branches, we need to direct our energies to producing fruit abundantly in the name of Christ and the Church.
My presentation was intended as an effort to contribute to the work of many fellow Catholic citizens to persevere in their individual endeavors to proclaim the Gospel and advance the Kingdom of God—particularly those who labor in the legal academy. It is a modest effort to identify and examine the relationship between Catholic faith and the duties of the citizen who claims to be Catholic and who has an extraordinary influence on the formation of other citizens and disciples. As long as we freely choose to remain Catholic, we retain the responsibility to be faithful to the Church’s teachings if we are to be effective, contributing Christian members of the commonwealth. Catholics who exercise roles in American democracy (as voters, as officials, and as educators) participate in the exercise of discipleship by applying in this world the substance and content of communion with Jesus Christ and other disciples for the advancement of the common good.
As disciples, we are citizens of two cities. Each of us is one person who holds and exercises various duties through this dual citizenship—we are the branches who remain tied to Christ, but we also exist and act in the temporal world. This fact should not deter us from embracing what Thomas More said when he declared his allegiance to both sovereigns, and God’s first.
May my fellow contributors and readers of the Mirror of Justice be blessed with New Year filled with the inspiration of the Great Commission.
AALS and Lumen Christi Next Week, and Happy New Year!
For those MOJ denizens who will be in San Francisco next week, I hope we'll have a chance to meet up and toast the new year with a little of Walker Percy's bourbon (see the very good comment and link below). Here are some of the panels that look interesting:
1. A little self-promotion. Come on over to the Jurisprudence panel on Friday the 7th at 4:00 (Parc 55 Hotel, second floor), where the subject is the choice of evils defense in criminal law. I am very lucky to have some really fine scholars as co-presenters: Larry Alexander, Youngjae Lee, Malcolm Thorburn, and the wonderful organizer of our panel, Vera Bergelson. I'm going rogue -- not talking about jurisprudence at all and the COE only a little. Instead, I'll focus on the thought of Sir James Fitzjames Stephen and argue for something implausibly ambitious in a talk called, "Against Theories of Punishment." I'll be trying to transform the talk into a paper over the next couple of months, so your reactions will be most welcome.
2. Law and Religion in a (Post-) Secular Age (Hotel Nikko, 3d Floor), Sat. the 8th at 8:30 (early!). The panelists look to take Charles Taylor's book as a springboard for discussion of new directions in law and religion. Co-moderated by the always interesting Paul Horwitz and Caroline Corbin.
3. Lawyers' Special Responsibilities as Public Citizens in a Rapidly Changing World (Friday, 10:30, 3d floor at Parc 55). Rob Vischer is delivering a talk on this panel, and the panelists look to be quite diverse, which is always more fun. But I'm going just for him.
4. Islamic Law and Crime in Contemporary Courts (Saturday, 10:30, Parc 55, second floor). Fascinating subject that I don't know much about, but which incorporates two of my interests. Featuring Russell Powell.
5. Rabbinical Courts in American Law (Thursday, 9:00, Hilton, Ballroom Level). Some heavy hitters on the subject of Beth Dins here, including Doug Laycock and Michael Helfand, who knows a great deal about this subject. I'm sorry to be arriving too late to hear these guys. Moderated by my colleague Keith Sharfman, who is very learned in this area.
6. Don't miss the LUMEN CHRISTI conference that goes on Saturday nearby. There are some really terrific books either just out or in the works. I just got a copy of John Coughlin's Canon Law: A Comparative Study With Anglo-American Legal Theory and am looking forward to reading a little before hearing about it.
Happy New Year!!
December 29, 2010
I like essays -- writing and reading them. In law, the essay is kind of a hybrid creature and a still-emerging stylistic form. The essay is missing some of the stolidly self-conscious seriousness of the article but it's so much more fun than the review. For me, the distinguishing feature of the essay -- what separates it from the prideful autonomy of the article -- is its reactive quality. It's a writing form that is somehow more socially connected, as what begins as a discrete counterpoint can blossom into broader, but still comparatively narrow, reflections.
For Christmas, my dear mother-in-law gave me the "Best American Essays of the Century" (a little late, you say? Maybe, but I still prefer it to similar collections of the past decade). Most of the essays are by American-born writers, but not all (e.g., John Muir). I have not read many of the essays and have only really read the work of about half the authors. Some of my favorites are in the book -- T.S. Eliot's Tradition and the Individual Talent, Henry Adams's A Law of Acceleration, Susan Sontag's Notes on "Camp." Others I care less for (Updike's The Disposable Rocket is the usual from him: "From the standpoint of reproduction, the male body is a delivery system, as the female is a mazy device for retention.").
With only a few exceptions, I noticed that there are almost no Catholic essayists on the roster (difficult for me to count Mary McCarthy or Annie Dillard). One is Richard Rodriguez -- a new author for me -- here's something from his essay, Aria: A Memoir of a Bilingual Childhood, "Supporters of bilingual education imply that students like me miss a great deal by not being taught in their family's language. What they seem not to recognize is that, as a socially disadvantaged child, I regarded Spanish as a private language."
But how about it, knowledgeable MOJ writers and readers: who are your favorite Catholic essayists? Definitions are always tricky, so please construe the labels broadly -- writers of short, non-fiction pieces who have been influenced by their Catholicism in one way or another. Fire away!
December 28, 2010
My feeble brain is tired as we prepare to close out the year, and I need your help with two issues from the lame duck Congress.
First, Congress recently extended the Bush tax cuts for everyone including the highest earning Americans on the grounds that many of these "wealthy" Americans are small business owners who will react to higher taxes by not hiring and expanding their businesses. But, wouldn't higher taxes likely have the opposite effect on small businesses? I am not advocating higher taxes for anyone, but I am puzzled by this rationale. With higher taxes the small business person has two options - give more of their earnings to the government or invest in the small business by hiring and expanding. The third possibility - taking that money home is not an option with higher taxes. Am I wrong in my analysis?
Second, the estate tax. Doesn't the existence of an estate tax provide incentive to wealthy people to dispose of their assets in their life times? And, might this be a good thing? Again, I am not arguing for an estate tax, but I would like to hear arguments about why it is a bad idea?
Thank you in advance for your thoughts.
December 27, 2010
Smith on Government Speech: Neutrality vs. Institutional Capture
Rick mentioned this article by Steve Smith some time ago, but since I'm always behind in my reading, I only got to it yesterday. I wanted in this post to note again that the piece is a worthwhile read and highlight some of Steve's interesting and (I think) elegant moves.
The doctrine of government speech recently has crept into cases whose facts implicate Establishment Clause issues. Pleasant Grove v. Summum will be familiar to MOJ readers, and there has been a flurry of scholarly writing directed toward this development (for a good summary of the issues and a careful take on the question of government speech, see this paper by my friend, Mary Jean Dolan). In a nutshell, here's the issue: if the "speech" of erecting a monument is private, then isn't it illegitimate for a municipality to discriminate for content-based reasons as to which monuments get public real estate? If the same speech is public, then doesn't the municipality violate the Establishment Clause by putting up, say, a monument of the Ten Commandments and not putting up other religious monuments?
After the jump, some description of and thoughts on Steve's paper.
In the paper, Steve really only takes on the second inquiry, and he does so in a nifty way. He steps back and asks -- why is government speech problematic? Why do we care about government speech, so much so that we are prepared to strike down certain examples of this sort of speech as unconstitutional?
The usual answer to these questions -- and one which seems to be particularly influential in today's EC doctrine -- is that we want the government to be "neutral" in its speech. And when the government erects some religious monuments but not others, it seems to be giving its imprimatur to the recognized religions and its deprimatur [sorry...] to the non-recognized religions. Steve's arguments against neutrality as a guiding principle of the EC are well-known (starting in Foreordained Failure), and he rehearses some of them here (see particularly his discussion of whether "religious" speech is special for purposes of a neutrality analysis).
But once he has set neutrality aside, he makes a new move -- the deep reason for objecting to certain kinds of government speech actually has to do with the idea of "institutional capture": "associations can be captured by factions within them to express messages and promote positions extraneous to the associations' central purposes." And Steve goes on to argue that the commandeering of an association -- including the government -- by powerful or particularly vocal interests to promote concerns that are not central to an association's purposes is both unfair to dissenters and injurious to free speech values.
What follows from the move from neutrality to institutional capture, insofar as assessing the harms of government speech is concerned? Here is the sharpest point. What the move does is to liberate us from imagining (a delusion, for Steve, in any case) that there is some perfectly neutral point of view to which government should aspire, and to shift our focus instead to the issue of what messages are, in fact, extraneous to the association that is our government. Unfortunately, the move doesn't solve the issue of when "government speech" is problematic (at least, it will be unfortunate for some...I tend to admire papers which create more problems than they solve). That's because, as Steve says, people disagree about what government is for -- what its core or central functions are, and what its permissible -- even if not core -- roles may be. The best that we can do in terms of consensus here is to recognize the difference between the government saying, on the one hand, that the Athanasian doctrine of the Trinity is true and the Arian doctrine heretical, and, on the other, the government affirming some much more generic support for "civil religion." The point is not to offer a defense of civil religion. It is only to acknowledge a range of legitimacy insofar as government speech (and therefore government's function) is concerned -- from the unquestionably inappropriately narrow, to the debatably broad(er).
Consider Steve's analogy from another discipline: while we would achieve an overwhelming consensus that the government had acted inappropriately if it proclaimed that jazz music is the best form of music, and certainly much better than country western, it would be far less controversial (perhaps not controversial at all) for the government to proclaim that music was an important and valuable cultural form, and that we ought to promote music education and appreciation as widely as possible. It is the narrowness of the former proposition -- and the widespread intuition that any government which stood behind it had been captured -- which distinguishes it from the latter. That is, even those who might agree with the narrow proposition being propounded would recognize it as inappropriate.
The difficulty, for me, is that the distinctions that Steve wants to draw seem to be more matters of degree than differences in kind. But Steve might respond (he does not do so in the piece...I'm only speculating) that courts should use the rough instrument of constitutional invalidation only when the narrowness of the proclamation really elicits the widespread sense of institutional capture; failing that, invalidation would be inappropriate.
There is always much to chew over in Steve's work. I hope readers will reflect on and enjoy the piece.
The Legal Academy and the Vineyard
Growth in discipleship: Can a seed (of teachers) grow in the legal academy?—the harvest is great but the laborers are few (Matthew 20:1-16)
The other day I posted the first in a short series about discipleship in the legal academy. Today I would like to offer a second installment which develops the concept of the mission of the disciple who is also a teacher of the law. As Catholics, we are summoned to labor in God’s name in many places which may not look much like vineyards, but in fact they are. Saint Matthew’s Gospel to which I have just referred provides the instructive parable of the landowner who goes several times to the market place to hire laborers for his vineyard. (Matthew 20:1-16) The parable reminds us of the need to pursue the duties of discipleship regardless of the time when one hears the call—be it earlier or later in one’s life. As you see, we are on God’s time rather than our own. The call is the same regardless of the time of hearing it and the time of the response. God needs laborers to follow His son, for the harvest is great, but the workers seem to be few in number. As Pope John Paul II kept repeating in his post-Synodal apostolic exhortation, Christfideles Laici, “you go into my vineyard, too.” (Matthew 20:3-4)
A principal justification for this exhortation of John Paul is the role of the laity, considering the unique character of their vocation, to engage in the temporal affairs of the world and order them according to the plan of God. Through their call to holiness, the laity who encounter the temporal affairs of the world are the branches sprouting from Jesus’s vine. (John 15:1) And it is from these branches that God’s fruit will be brought into this world. While this may be a hard sell in a faculty meeting, the standards of the secular academy are not the final means for determining what the Catholic law professor is to do in his or her life. Through the efforts of the conscientious disciple, such objectives as God’s peace, the protection of human life and the preservation of the family—the basic unit of society, and the growth in authentic human wisdom and progress, and hope for the future can be cultivated, blossom, and produce abundant fruit. Just think of the role a teacher of the law can have on the relatively young minds of lawyers to be in achieving all this!
Instilled with the mission of discipleship, the laity are called to be God’s conscious instruments in a world often plagued with exaggerated autonomy that ignores both the neighbor and God and sees only the isolated self. By remaining in contact with the magisterium of the Church, the laity, through their work, become a light to the world illuminating the minds and spirit of those who might otherwise be overwhelmed by the darkness of evil. In this regard, we need to take account of what John Paul II stated in his last World Day of Peace message issued in 2005, by recalling the words of St. Paul, “do not be overcome by evil, but overcome evil with good.” (Romans 12:21) This is a noteworthy appeal to the disciples who labor in the many vineyards God has placed us.
A major task in regard to pursuing and implementing St. Paul’s exhortation is the need to identify and counter the falsehoods that beleaguer the world today. As a teacher, I am always intrigued by colleagues who, in the context of discussion about violence against women, proclaim the merits of the “Monologues” of Eve Ensler but think it would be inane to discuss and learn the story of Maria Goretti. With regard to debates about human rights, I am captivated by the assertions of a vast cohort of teachers supportive of “reproductive rights and sexual autonomy” but ridicule or at least down play the most fundamental right of all—the very right to life itself. Indeed, the harvest is plentiful but the laborers seem to be few in number. Even if the numbers of disciples prepared to meet the challenges of this world are few, they should not be deterred from their work in light of the enormity of tasks that lie ahead of them for the harvest will remain plentiful.
In a particular way, those called to the legal profession have numerous ways in which they can contribute to the betterment of the human family at the local, regional, national, and international levels. As members of the body of Christ who are trained in the legal and political mechanisms of society, they are suitably equipped to confront and remedy the sad mistakes of human manufacture, for as Jesus said, “I have appointed you to go forth and bear fruit.” (John 15:16) And the disciple responds to this call and goes into the world not in his or her own name, but in the name of Jesus for whom the disciple is an ambassador. (2 Corinthians 5:20) It is this person who is called to counter the errors of the false prophets of the day who seem to me to have a disproportionate voice in the development of legal and other norms that emerge in the contemporary culture of the early twenty-first century.
When considering particular challenging topics that today’s disciple must confront, we turn to St. Paul who reminds us about the duties of citizenship and how discipleship and citizenship are designed to be complementary rather than separate and independent of one another. (Romans 13:1-7) But St. Paul also cautions that the civil authority also must be mindful of its duties and properly exercise its power for it is supposed to be an instrument of God as well. (Romans 13:4) Disciples are also citizens who have a role in determining the political, social, and economic structures in which they live and work and who thus have responsibility as keepers of our brothers and sisters—whoever they may be. An informative and perspicacious account of this important point appears in Cardinal Raymond Burke’s pastoral letter to the Church in St. Louis issued on October 1, 2004 entitled “On Our Civic Responsibility for the Common Good.” (At the time, the Cardinal was Archbishop of St. Louis) The cardinal began his letter with a story from the time of his study of the German language in 1982 and his associated work in a German parish. He got to know the sacristan of the parish church who had been a teenager during the rise of National Socialism. A “haunting” question persisted with the sacristan about how he and his fellow citizens of Germany could have permitted horrible evils to happen and to go on for as long as they did. The cardinal added another chapter to the story: how could the bishops, the shepherds of Germany, have failed in their instruction and exhortation to the laity regarding these evils? These accounts are provocative in that each is a catalyst for reflection by the clergy and the laity of the Church today according to the rest of Cardinal Burke’s pastoral letter concerning his former role as shepherd of the Church in St. Louis and the roles of the laity who are citizens or holders of public office regarding the evils of the present day. And what are these evils?
Within the context of the Church’s teachings and their natural law foundation that is based on the use of right reason, the evil to be avoided is frequently any situation in which either the self-serving interest of the individual prejudices the interests of other individuals in the community, or the interest of the collective harms or frustrates the flourishing of each individual. The Church in its totality is the principal agent of moral theology, reflection, and action; moreover, through the Church, the human race can recognize each member’s fellowship with the other and with God. This is akin to Pope Benedict XVI’s observation commemorating the Pastoral Constitution issued during the Second Council that the virtue of justice contains two inextricably related elements: “the firm will to render to God what is owed to God, and to our neighbor what is owed to him.” (Homily of then Joseph Cardinal Ratzinger, 18 March 2005) The Holy Father’s point is related to the notion of justice as right relationship.
As a follower of Jesus Christ, the disciple might begin to address how to pursue this form of justice by thinking of Jesus addressing the same situation. The methods of instruction used by Jesus would vary, but they would include exhortation, the miracle, and the use of the parable. It is the parable that draws the listener-disciple into the lesson not only as an observer but as a participant as well. While the citizen as disciple is generally free to take action that he or she considers desirable (a type of freedom), the use of parable informs the individual’s conscience within a Christian context about the positive or negative action of the individual’s decisions. The parable of the Good Samaritan remains a powerful instrument of instruction and formulating a course of action for the disciple. (Luke 10:25-37) The lawyer in that parable who asks the question “who is my neighbor” is reminded of the nexus between love of God and love of the neighbor, and he learns what that means regarding human action in daily life. At the conclusion of the parable, he is instructed: “go and do likewise.” (Luke 10:37)
Being a good citizen means being a good neighbor, and being a good neighbor means that one takes personal discipleship seriously. The cognizable neighbor in the parable is the victim of the robbers. But, the neighbor could be just as easily the persons involved with the issues outlined in the concerns from the Pastoral Constitution, i.e., murder, genocide, abortion, euthanasia, or willful self-destruction—or whatever else insults human dignity. The reader of the parable who becomes a participant in its teaching might identify with all the story’s characters that include the victim, the Samaritan, the robbers, the priest, the Levite, and even the innkeeper—that unsung hero who probably does what the Samaritan asks of him when the Samaritan must continue his journey and leaves the victim in the care of the innkeeper. The parable explores what the ordinary citizen, including the lawyer, can do as a disciple of Christ.
Civic duty is compatible with, not contrary to, discipleship. The two are not mutually exclusive and, for the Catholic who is both disciple and law professor, inextricably related. When they become separated from one another, the tragic events underlying the story of the German sacristan as related by Cardinal Burke can be and often are repeated. Nonetheless, the disciple must be as wise as a serpent and as innocent as a dove (Matthew 10:16) and recognize that some will reject the role of the disciple-citizen. For when Church authorities and citizens speak out on issues from the Catholic persona, they might be challenged, albeit on dubious grounds, that this “preaching” is prohibited by the Establishment Clause of the First Amendment. But, do these same critics, especially when they have access to mass media outlets that welcome their strongly secularist or even anti-Christian views, exercise similar restraint? It often appears that the result is dependent on who is doing the preaching and whose Gospel is being preached. Whatsoever you do to the least of your brothers and sisters, that which you do unto me. (Matthew 25:40) It is a well-formed Christian conscience that richly contributes to the public debate by adding alternatives that reflect genuine pluralism and diversity and is not subjugated by the monolithic view of a culture that is antagonistic to the religious viewpoint— a viewpoint essential to the discussion not by “imposing” but by “proposing.” Nevertheless, conscience is under attack and efforts are underway to silence those who exercise it in good faith and for the promotion of the common good.
Regarding the important role of the well-formed conscience, one need only recall the story of the German sacristan—why did people do nothing? Because if they did, their lives and their livelihood and other manifestations of existence would be adversely affected, sometimes even in harsh ways. But, notwithstanding these persecutions, people of conscience are demonstrating to the world that they will not be swayed as the pharmacists and health care providers are demonstrating.
But if one assumes the title of disciple, does not one also assume certain risks that go along with the vocation? In answering this question, one need only recall the names of all those disciples in the Roman canon who were martyred for their beliefs and the exercise of their conscience. There are indeed risks of proclaiming the truth, the Good News that some treat as unwelcome, but there is the moral obligation not to give into bullying or pressure, subtle or otherwise. Sound prudential judgment may dictate when this obligation is exercised in a public fashion, but it does not mandate avoidance of the obligation in perpetuity.
Disciples of today shoulder duties in the name of God and His Son. There are occasions when these disciples need not fear the decisions they take in the public square so long as those decisions sufficiently coincide with the views of the secular components of society; however, there may be occasions when the situation is otherwise. It is clear that if the disciple may not be able to eliminate that which is evil entirely. That is understandable, but the disciple has the continuing obligation to ensure that the evil in this world that is of human manufacture at least be reduced if it cannot be eliminated at present.
Those who consider themselves good citizens and good disciples seem to be neither when it comes to some of today’s difficult issues such as euthanasia, abortion, same-sex marriage, or certain kinds of stem cell research requiring the creation and inevitable destruction of human embryos. They may assert: “I cannot legislate morality” or “I cannot impose my religious views on others who do not share my faith” as some Catholic politicians have opined. It may seem odd that when the matter under debate involves some aspects of civil rights or criminal legislation addressing, for example, sexual assault or welfare reform or increasing medical benefits for the underinsured or uninsured or the protection of civil rights, the reservations toward the religious perspective tend to be absent. But why do they surface when the matter involves the conscious destruction of human life—the most precious right of all, for without it, all others wither? When these events take place and chill the words of deeds of the disciple in contemporary life, we find ourselves on the decline back to the Germany of the sacristan who met Cardinal Burke and asked why he and his fellow countrymen did not do something to stop the spread of evil.
Being silent with regard to the vital issues confronting the human family is not always golden. The exercise of silence can be prudent and sometimes offers a useful delay to consider the best manner of addressing a grave problem. But, when all is said and done, silence is rarely a solution to difficult problems that must ultimately be addressed. It can be, in some of today’s political debate, a form of weakness and fearfulness or cooperation (material or formal) in perpetrating and continuing evil. That is why the disciple of today must be willing to embrace the exhortation of John Paul II—“Be not afraid!” This exhortation surely applies to those of us who call the classroom our part of His vineyard.
The earthiness of Catholicism -- its willingness to see (indeed, its insistence on seing) tangible things, stuff, and places (relics, rocks, images, paths) as vehicles for the impartation of grace and the movement towards God -- has long been, and remains, a scandal to many, including (especially?) many Christians. I was reminded of this, the other day, when I was reading various blog entries, written by travellers to Israel, regarding places like the Church of the Nativity, Holy Sepulcher, the Basilica of the Annunciation, Peter's house at Capernaum, etc. For many, the lines of pilgrims waiting to see, and touch, things like the stone where Jesus was born, or the rock where he was crucified, etc., were more humorous (or off-putting) than inspiring. And, there's no getting around it, there's something absurd about the "scene" inside Holy Sepulcher, with its turf wars and all. For the critics, the fact that I was eager to reach through a hole in the marble and touch the rock -- the actual rock, Christians have long, long believed -- where Jesus was crucified shows a superstitious failure to appreciate the real (that is, the "spiritual") nature of our relationship with God, and of God's saving acts.
I was happy, though, to touch the rock, to stand on the shore of Galilee, to stand on the *actual* Roman paving stones that Jesus would have walked on His way to the Temple, and to look at Peter's house in Capernaum and imagine Jesus stopping by to say "hi". And, I was moved, as much as I have ever been moved, by those Jews who, during the tour of the tunnels along the base of the Western Wall (an amazing tour, by the way) stopped, about halfway along and many feet underground, to touch and pray at the section of the 2000-year old wall that, they believe, is closest, physically, to where the Holy of Holies was once housed.
God did not save us by becoming an idea, a spirit, or a feeling. He saved us by becoming a flesh-and-blood person, who walked around, and had meals, and stood on rocks, and was "crucified, died, and was buried" in a real place, one that we can touch.
December 25, 2010
Something to Think About on Christmas
From Protestant Theologian Dorothee Solle
Compare him calmly with other great figures
He can stand that
But it is better
For you to compare him
Quoted in Hans Kung, What I Believe 142
December 24, 2010
Notes on Screwtape: Past, Present, and Future
From the fifteenth letter:
Our business is to get them away from the Eternal, and from the Present. With this in view, we sometimes tempt a human (say a widow or a scholar) to live in the Past. But this is of limited value, for they have some real knowledge of the Past and it has a determinate nature and, to that extent, resembles eternity. It is far better to make them live in the Future. Biological necessity makes all their passions point in that direction already, so that thought about the Future inflames hope and fear. Also, it is unknown to them, so that in making them think about it we make them think of unrealities. In a word, the Future is, of all things, the least like eternity. It is the most completely temporal part of time -- for the Past is frozen and no longer flows, and the Present is all lit up with eternal rays . . . . Gratitude looks to the Past and love to the present; fear, avarice, lust, and ambition look ahead.
They are different in tone and meaning, but I remembered Eliot's lines about time past and time future pointing to one end -- time present. Buon Natale, MOJ friends!
The Great Discipleship of Teaching
The call to discipleship—on the Way to Emmaus (Luke 24:1-35)
For many, Christmastide and the end of the calendar year provide an opportunity for many individuals to reflect upon one’s life, livelihood, and vocation. For the Catholic Christian, this reflection may include a personal evaluation of one’s discipleship. One of the things that I have reflected upon concerning the joint enterprise I share with others at the Mirror of Justice is what is Catholic legal theory and how can I contribute to its development that is consistent with the faith and the teachings of the Church. Much of what I have to offer for the consideration of others takes place in the context of individual and shared efforts as teachers who labor in the classroom, the symposium, and the world of publication. These personal reflections will appear in three installments commencing with today’s posting. It concentrates on the personal and corporate call to discipleship.
Some years ago one of my students stopped by to discuss the course that she had taken with me. At the end of our conversation, she asked if she could present a personal question regarding faith and the Catholic Church. Accustomed to these kinds of questions from students and a few colleagues, I responded in the affirmative. She then inquired in a sincere fashion if she were a “bad Catholic” since she was “pro-choice.” Her question is of the kind that I have always anticipated being asked regarding the divide between the Catholic faith and endorsement of public and political views inconsistent or in tension with the teachings of the Church. The existence of the division is something that I prefer would not exist, but it does.
As I responded to my student’s inquiry, I thought about the ongoing debate in the United States within the context of the elections regarding Catholic public officials and citizens and the multifaceted duties regarding some of the difficult issues of public policy involving including abortion, embryonic stem cell research, armed conflict, and homosexual marriage—for these constitute some of the pressing issues of the day that involve the intersection of the Catholic faith and public policy that is the subject of the law. Somewhat eclipsed by the notoriety of public officials and their positions on these important contemporary policy matters is the related matter involving the Catholic citizen and his or her duties regarding voting or campaigning on these various contested issues of the day and Catholic faith the citizen professes.
Knowing that bishops, clergy, public officials, and citizens have provided, some times amply and audibly, their views on this important relationship between citizenship and faith, I plan to address the issue of the respective obligations of the Church’s teachers and the young faithful whom we encounter through the various manifestations of our teaching. Given this context, many Catholics in the United States find themselves in conflict over their faith and their roles in public life. It is not absurd to suggest that each Catholic citizen is a participant in the Christian vocation of citizenship. My purpose in doing so is not simply to pursue didactic objectives; it is also to present the efforts of a fellow laborer in the vineyard to encourage, support, and make a modest contribution to you to persevere in your particular endeavors to proclaim the Gospel and advance the Kingdom of God in your great work.
The principal objective today is to identify and examine the relationship between Catholic faith and the duties of the Catholic citizen. It is my position that there is nothing in the civil law and associated regulations to preclude the Catholic office holder or citizen from adhering to the teachings of the Church in the exercise of one’s respective public duties. Moreover, the citizen and the office holder have the obligation to be faithful to the Church’s teachings if he or she is to be an effective, contributing Christian member of the commonwealth. This means that the Catholic who exercises a role in American democracy simultaneously participates in the exercise of discipleship by applying in this world the substance and content of communion with Jesus Christ and other disciples.
I shall elaborate on this by investigating the following points: (1) what the call to discipleship means to the citizen who is also a believer; (2) how the believer must grow in response to the duties of citizenship and discipleship because “the harvest is great but the laborers are few” and how the Christian citizen must be open to receiving appropriate instruction from those whose duty it is to teach; and, (3) by relying on several historical models, demonstrating how Christian citizens—especially teachers—are called to be people for all seasons. I begin my presentation by turning to an early account about two disciples.
This element of my examination is rooted in the story of Cleopas and his friend—two disciples who, on their way to the village of Emmaus, encounter the resurrected Jesus. (Luke 24:13-35) Something prevents them from recognizing Jesus until they dine together and Jesus, after having said the blessing, breaks bread with them and, in doing so, shares communion with them. When Jesus quickly disappears from their sight, they then recognize who he is, and they are energized with the breaking of the bread and communion with Jesus to continue his work mindful that the “repentance and forgiveness of sins is to be proclaimed in his name to all the nations.” (Luke 24:47) By being in communion with the Lord, they are restored to active and animated discipleship and respond to the call to serve in his name. Without the communion with Jesus, they seemed to have no direction in their lives but were “downcast.” (Id. 24:17) They needed him to do the work they were called to do, and with him they were fortified to labor in his name. Through their communion with Jesus, they maintained right relation with God and with their neighbor. Being in communion with God, His Son, and the Church is essential to anyone’s discipleship regardless of whether one lived in the time of Jesus in Palestine or in the United States at the present time.
Of course, Cleopas and his friend have been succeeded by many faithful disciples including those of the present day. Throughout the Church’s history, they have been simultaneously challenged and invigorated in their work of following the Lord in this world—the very Lord who is Emmanuel whom we welcome this evening at the Christmas Vigil. Indeed, their actions have been threatened by other individuals, groups, and the state. Nonetheless, they have also been fortified by the Lord in answering his call: “come, follow me.” (Matthew 9:9) For example, in the 1930s, the lay groups called Catholic Action were targeted by elements of the Fascist state in Italy and later by National Socialists in Germany and other countries. The functions of Catholic Action served as the leaven in this world by instructing the members of their society about the teachings of the Church vital to public life. Many members of this important association persevered in their discipleship notwithstanding the difficulties and persecution they faced. Many bishops, priests, members of religious communities, and lay leaders exhorted them to persist.
More recently, the faithful Catholic laity were reminded of their duty to continue the same and related functions in society by the Second Vatican Council (1962-65). Two principal documents of the Council address the role of the Catholic disciple in the world and political life. The first is the Pastoral Constitution on the Church in the Modern World (Gaudium et Spes). Two significant points about the Pastoral Constitution must be noted here. The first is that the Council spoke to Catholics and “in order to shed light on the mystery of man and to cooperate in finding the solution to the outstanding problems of our time.” (G&S, N. 10) The second crucial point needing emphasis is the recognition that the Church teaches that human existence is permeated by the unchangeable reality rooted in Christ. (Id.)
These two key points acknowledge that the Church and its individual member are called to advance the dignity of each human person in solidarity with all others. Thus, interdependence and the common good are complementary to rather than in conflict with the individual person. The Council highlighted these points by stating that each member of humanity of the contemporary world is obliged to take seriously the duty to love one’s neighbor—whoever that may be. In a powerful use of scripture, the Council reminds all what Jesus taught: “As long as you did it for one of these least of my brethren, you did it for me.” (Matthew 25:40) The text of the Pastoral Constitution goes on to illustrate this calling by stating that the Church and its members have a duty to combat whatever is “opposed to life itself” by identifying murder, genocide, abortion, euthanasia, willful self-destruction, or anything else which “violates the integrity of the human person.” (G&S, N. 27) Illustrations of these violations against human integrity include: subhuman living conditions, arbitrary imprisonment, deportation, slavery, prostitution, disgraceful working conditions, and trafficking in women and children. The Council confirmed that these acts injure not only their victims but also insult God, the Creator of each person. Sadly, they still proliferate throughout the world today including our own country.
Disciples are challenged to address all of these problems that face the contemporary world and challenge human existence. Catholics are citizens of two cities who are called to discharge civic responsibilities with the exercise of a Christian conscience inspired by the Gospel. (G&S, N. 43) By way of elaboration, the Council expanded on its explanation of this duality of citizenship. First of all, it specified that the person who is a Catholic cannot profess belief in the Gospel but ignore it in everyday life. As the Council stated, it is wrong to “think that religion consists in acts of worship alone and in the discharge of certain moral obligations”; a Catholic cannot plunge one’s self “into earthly affairs in such a way as to imply that these are altogether divorced from religious life.” (Id.) For those who assert that faith is a private matter and not to be inserted into public affairs, the Council admonished that the “split between faith… and daily lives deserves to be counted among the more serious errors of our age.” (Id.) The dichotomy of two lives, one of faith and one of citizenship, insulated from one another is incompatible with Christian discipleship.
The role of the faithful in the suitable exercise of discipleship is crucial. First of all it is the laity who have the principal role in seeing that the “divine law is inscribed in the life of the earthly city.” (Doctrinal Note on Catholics in Public Life) While enjoying and exercising their appropriate expertise, the laity are properly reminded of the need to turn to the clergy for principled instruction and spiritual advice; however, it is ultimately the responsibility of the laity to combine their Christian wisdom, which is informed by the Church’s teaching authority, to implement and practice the divine law in the earthly city.
I have already noted some of the issues which the Council concluded violated human dignity. But the Council went on to specify several problems of “special urgency” requiring the attention of the laity. These include: marriage and the family which are of vital concern today; the proper development of culture, economic and social issues; the vocation of promoting the common good; and fostering peace and promoting the friendly community of nations. These vocations properly belong to every Catholic—man, woman, and child—since each bears a calling to follow Christ in this world and do the will of the Father through one’s baptism. It is the responsibility of each to continue the teaching which Jesus began and with which the Church, especially through its laity, is charged to continue in both word and deed. It is the laity who are well situated to embrace the duties of citizenship of both cities and transmit God’s law and truth to those responsible for directing civil society so that it achieves and maintains the common good. This is of special concern to those of us in the teaching profession.
There may be critics and skeptics who caution against the propriety and legality of such an enterprise. They may argue that the disciple is prohibited from mandating religious doctrine on the secular community. In this regard, one is often reminded of the often recalled address given by Governor Mario Cuomo at Notre Dame University in September of 1984 entitled “Religious Belief and Public Morality: A Catholic Governor’s Perspective” in which he raised and addressed the question of the relationship of his Catholic faith and his politics—are they separate or related? The Governor counseled against imposing views based on Catholic teachings on others which these citizens find unacceptable. He spoke of the “American-Catholic tradition of political realism” in which the Church has avoided settling into a “moral fundamentalism” mandating “total acceptance of its views.”
But that is not what the disciple is called to do. The disciple, as John Paul II judiciously explained, proposes to the community rather than imposes upon it. Governor Cuomo appears to have agreed with this transformative participation in public life in which the Catholic holds the duty not to coerce but to persuade. But as I will discuss later, there remain problems with other points that he made at Notre Dame. If indeed the United States is a pluralistic culture as many have noted, should we not as believers and non-believers, but citizens all, be aware of the universal obligation of citizen to contribute to the debates on issues big and small that fuel and sustain democracy? It makes little sense to argue that the person with no faith in his or her perspective on exercising the duties of citizenship is entitled to contribute to the democratic process but the person who approaches our life in common from a religious background is denied the same opportunity because of the myth of the wall of separation between Church and State. This leads to only certain rather than all sources contributing to our common life in a culture which claims to be pluralistic and diverse.
It is through reasoned discourse that the genuine contribution of the disciple can be made for the betterment and benefit of all rather than just some of humanity. It is the example of a way of life that is suitable for making the propositions consistent with God’s truth contained in the Church’s teachings. And, it is these teachings and the authority upon which they are based that serve as an antidote to the cynical and sinister in this world that God has given His disciples as one of our two cities. Archbishop Charles Chaput commented that regardless of one’s status as public official or citizen, Catholics share a duty of conforming their lives to the belief they profess and to do something about this is a public fashion if the common good is to be a goal of society. He properly acknowledged that, “All law is the imposition of somebody’s beliefs on somebody else. That’s exactly the reason we have debates and elections, and Congress—to turn the struggle of ideas and moral convictions into laws that guide our common life.”
The wisdom and teachings from the Pastoral Constitution must be complemented by a second conciliar text, the Decree on the Apostolate of the Laity, Apostolicam Actuositatem. At the outset, the objective of this text was to support intensification of the apostolic activity of the laity who possess and exercise a proper and indispensable role in the Church’s mission in the world—a role necessitating zeal and intensification. A major objective of this apostolic activity is the need to address the serious errors of the contemporary world that undermine “the foundations of religion, the moral order, and human society itself.” (AA, N. 6) Of special concern to the laity are vocations involving Christian married life, the family, and the influence of Christians (especially the young—and whom do the young encounter outside of their homes on a regular basis?) on culture and society. Regardless of the activity, the laity are called to build up the Church and to sanctify the world. (Id., N. 16) Keeping in mind the earlier work of Catholic Action, the Council viewed that the laity, who must maintain a proper relationship with Church authorities, would pursue a wide variety of apostolic activities providing reinforcement for the transcendent and objective moral order in the world. (Id., N. 20) Of course, it is important to note that no one could claim the use of the modifier “Catholic” unless it had obtained the consent of the appropriate and lawful authority in the Church. (Id., N. 24) In this context, the United States Conference of Catholic Bishops issued a statement in May of 2000 declaring that the pro-abortion group which calls itself “Catholics for Choice” [formerly CFFC] is not a Catholic organization.
What is envisaged in the text on the role of the laity is a vital partnership in which the ecclesiastical hierarchy teaches and authentically interprets the moral principles to be addressed and advanced by the laity in the temporal sphere. (Id., N. 24) Otherwise, any speaker addressing the temporal sphere could advance his or her or its views, as does the Catholics for Choice, in the name of the Catholic Church, but to do so would be falsehood and lead to confusion amongst not only the laity but the citizenry at large. Any speaker who suggests that he or she is offering a Catholic perspective to a debate but whose views do not accord to the Church’s teachings and positions is offering erroneous testimony and falsehood. No wonder why Thomas More encouraged Richard Rich to be a teacher! A teacher who is also committed to his or her discipleship works in a particular vineyard which will be the subject matter of the second installment that will follow in a few days.