Monday, March 30, 2015
It should come as no surprise to us of the present age that religion plays a key role in political life. Recently the State of Indiana enacted its Religious Freedom Restoration Act that parallels Federal legislation and statutes of many other states of the Union. Unfortunately, some American citizens or interests are keen on exposing the so-called discrimination or potential discrimination that this kind of legislation may perpetrate against fellow citizens who are part of the sexual orientation and gender identity movement.
Powerful influences including elements of the media, the NCAA, and large corporations that publicly support the political, social, and cultural initiatives of this movement have been adding their objections to this new legislation which reflects what has been the law for some time in other jurisdictions. Could it be that there is something in the text of the Indiana law that is different? I do not think that is the real issue. The real issue resides in the text itself and what the text is supposed to protect, which I shall address in a moment.
The opponents of the new Indiana law are now pressuring the legislators and the governor, who supports the legislation, for clarifications. But are clarifications needed? This is where a careful examination and interpretation of the text are in order. After all, words and their meanings are important to the law as are the entire texts. In my discussion today, I am relying on Indiana Senate Bill No. 568 introduced on January 20 of this year and enacted this past week. The text is HERE: Download SB0568.01.INTR.
The substance of the legislation is contained in Section 6 that provides that state action or the action of an individual based on state action cannot “substantially burden a person’s right to the exercise of religion, even if the burden results from a law or policy of general applicability.” The same section further provides that a burden to the right of religious free exercise may be lawful and trump the right of religious freedom if the burden is “essential to further a compelling governmental interest” and is “the least restrictive means of furthering the compelling governmental interest.” This language essentially tracks Supreme Court jurisprudence, albeit at times confusing, on the nature of religious liberty.
The first five sections of the legislation contain the definitions applicable to the intent and purpose of the new law. I find two of the definitions crucial to meeting the general opposition to the state RFRA that opponents of the bill are voicing. Section 3 defines the phrase “the exercise of religion.” The definition can be fairly distilled as the practice or observance of a person’s [defined in Section 4] ability to act or to refuse to act in a manner that is substantially motivated by the person’s sincerely held religious belief. Inherent in this protected right is the defense of the person who is acting or refusing to act on the grounds of that person’s religion. This protected right does not impose on the non-believer or someone who adheres to some other faith. It protects the claimant who is exercising a Constitutional and now an Indiana statutory right. It does not interfere with the legal rights of others who may disagree with the religious tenets in issue.
To understand this point further, it is useful to look at the second important definition to which I alluded a moment ago, and this definition concerns the “compelling governmental interest” that can derogate the protected right of religious freedom under specified circumstances. A “compelling governmental interest” is defined as “a governmental interest of the highest magnitude that cannot otherwise be achieved without burdening the exercise of religion.” I have emphasized two passages with italics.
While the first italicized phrase might profit from a definition, I do not think that a definition essential to the protection of all legitimate interests at stake. The phrase “the highest magnitude” suggests a crucial legal, perhaps even constitutional, principle that is essential to the integrity and survival of the Republic, the State of Indiana, and the commonweal/common good. Opponents to the legislation appear to ignore this element of the text when they argue that the Indiana law “could make it easier for religious conservatives [the legislation does not use the term “conservative” anywhere] to refuse service to gay couples.” What might these services be? The denial of some services to anyone might actually be a lawful act of discrimination rather than an unlawful act of discrimination.
For example, an innkeeper might discriminate against a would-be customer if the innkeeper refuses to serve alcohol to someone who is already intoxicated or underaged. This refusal could be compelled not only by law but also by a person’s sincerely held religious belief that the intoxicated or underaged person should not be served. Might the proprietor of a bed and breakfast refuse to accommodate a single person? Unless the single person is rowdy, a known fugitive from justice, travelling with an animal, etc., it would be difficult for the proprietor to refuse accommodation on the grounds of religious freedom as the law is designed to protect. But what if it is a couple of persons? Does it matter if they are of the same-sex or opposite-sex? Could the proprietor rely on the provisions of this law to deny accommodation to either couple and not trigger the compelling governmental interest standard of the highest magnitude? It would seem that the right of religious freedom (or conscience which is not directly addressed by the statute’s language) as enshrined by the law would protect the proprietor who knows that the opposite-sex couple is not married. Why should the same-sex couple be treated differently by forcing the proprietor to provide them with a room with a large bed? (Perhaps the circumstances would be different if this couple were Queequeg and Ismael from Melville’s Moby Dick, but I digress.) Is there a compelling governmental interest of the highest magnitude that is at stake? Would it matter if the proprietor of the business relying on the religious liberty protection operates a bakery and objects to an opposite-sex couple who want a cake to celebrate their living together out of wedlock or a same-sex couple who order a cake to celebrate their commitment or union under state law?
The point here is this: must a person seeking the protection of this law conform his, her, or its religious conscience and thereby sacrifice his, her, or its religious faith to the sin of someone who desires to have his, her, or its action declared a compelling governmental interest of the highest magnitude that cannot otherwise be achieved without burdening the religious person’s free exercise? It strikes me that, given the context of those objecting to this law, this is precisely the objective that they are seeking. They are pursuing the goal because they see no sin or sin is inconsequential; it is irrelevant to them that they are asking another person to cooperate and participate in their sin. This circumstance parallels what medical providers are now facing from their licensing authorities when they are forced to refer a patient to a medical provider who will provide the service they cannot provide due to their sincerely held religious belief or conscience.
As I keep going over the text of the new Indiana law and consider the objections raised by its opponents, I see strong parallels to what Henry VIII did in England from 1533-35. Both the king and the opponents of the Indiana law will not tolerate anyone who disagrees with their objective from escaping. All must conform to the goals of the law’s opponents, and sincerely held religious beliefs will be no defense. We know what happened during and after 1535 in England. Is this same thing really required under the rubric of a compelling governmental interest of the highest magnitude today? If so, then sin wins once again and virtue is at forfeit.
Sunday, March 1, 2015
My posting today follows a thread developed over the past few days by Professors Rick Garnett and Kevin Walsh. Further catalysts for what I present today are the recent deaths of Professor Charlie Rice and Fathers Richard McBrien and Ted Hesburgh who dedicated their lives to the academy that identifies itself as Catholic. Regardless of personal differences on specific issues, we all share a common project of education that uses the principal modifier Catholic. Regardless of the level of education—be it primary, secondary, tertiary, post-graduate, or professional—the Church has had a long history and therefore a long participation in education. In the present political, social, and legal climates, there has been and will likely continue to be a good deal of discussion about Catholic education as Rick’s and Kevin’s postings inform us.
Recent news items have brought up many facets of the central topic of Catholic education. By way of illustration, these subjects include: the tussles between Archbishop Cordileone of San Francisco and various political, social, and cultural interests based in California and elsewhere; the concerns focused on Notre Dame’s review of the core curriculum and the role of the theology (and perhaps philosophy) requirement(s); the ability of any Catholic institution to hire (and fire) for mission; and, the concession by some institutions (e.g., Creighton and Notre Dame) to grant marital and family benefits to faculty and staff who are in same-sex relationships. As I have indicated, this list is not exhaustive, but it covers some of the more prominent and current controversies intersecting the Catholic institution of education.
Today I argue that these and other controversies emerge from a fundamental misconception of the role of the Church in institutions considered by many as a part of the Church. The list of institutions especially includes educational bodies. One major contributing factor to the existence of these disagreements and disputes is a misunderstanding of Conciliar texts of Vatican II that “the Church has always had the duty of scrutinizing the signs of the times and interpreting them in the light of the Gospel.” (Gaudium et Spes, N. 4) The misconstructions of this phrase have led many to think that the Church needs to conform to contemporary norms rather than to study and evaluate carefully and objectively the claims posed by these modern norms. I subscribe to the latter interpretation which I submit is supported by the use of the word scrutinizing and the phrase interpreting them in the light of the Gospel that appears in Gaudium et Spes (the Latin text reads: per omnes tempus Ecclesiae officium incumbit signa temporum perscrutandi et sub Evangelii luce interpretandi) This provision of Gaudium et Spes recognizes that the Church has a fundamental task of continuing the work begun by our Lord and Savior Jesus Christ who “entered this world to give witness to the truth, to rescue and not to sit in judgment, to serve and not to be served” (opus ipsius continuare Christi, qui in mundum venit ut testimonium perhiberet veritati, ut salvaret, non ut iudicaret, ut ministraret, non ut sibi ministraretur). Much attention has been paid to the idea of “who am I to judge?” uttered by Pope Francis and which is suggested in this last passage quoted from Gaudium et Spes. Pope Francis has indeed been the catalyst of some interesting interpretations about not judging others. But any of us, be we clerical, religious, or lay who are or claim to be disciples of Christ have the sacred trust to evangelize the world in an authentic fashion. The objective of this claim is found in our fundamental prayer taught to us by Jesus: it is God’s will, not mine or yours, that is to be done. Doing the will of God is not judging but acting on the commission our Lord gave to us in Baptism. I shall return to this point later.
But I now return to a central matter that Rick and Kevin have introduced. One way of considering an important issue that they have presented is by asking the question: what makes a Catholic school—regardless of the level of education—Catholic?
Tuesday, February 10, 2015
I wish to thank our friend and colleague Kevin Walsh for his posting yesterday on the marriage turmoil that is now engulfing the State of Alabama. Much has been said about the legal controversies surrounding the claims for same-sex marriage, and I am confident more will be said. Today I wish simply to focus on the words—the expression—of the counsel to whom Kevin referred. The particular phrase involves the lawyer’s statement about “a federal court declaring what same-sex couples’ rights are under the federal Constitution.”
Words and their meaning are crucial to the noble craft of the lawyer—this category “lawyer” includes judges and many legislators and administrators. However, words can be poorly used; they can be incorrectly used; and, they can also be given a highly subjective meaning that obscures and frustrates the underlying intent and purpose for which they exist as a means of general communication. An illustration of the latter case is Lewis Carroll’s character Humpty Dumpty who audaciously and scornfully posits, “When I use a word, it means just what I choose it to mean—neither more nor less.” From the effort of striving to achieve the most accurate meaning from words and phrases—especially those having a legal import—the counsel of Mr. Dumpty leads us on a perilous course. Not only must it not be recommended, it must be avoided at all cost.
When one returns to the words of the lawyer from the Alabama marriage litigation cited by Kevin, we see the counsel’s emphasis on the words of the United States Constitution and the implied meaning of these words. So, what words does the Constitution contain regarding same-sex marriage or, for that matter, any marriage? It uses none because the text of our fundamental law is silent on the subject of matrimony just as it is mute on the matter of abortion. This does not mean that a topic not specifically mentioned in the Constitution is not addressed by our fundamental law. Subjects not specifically mentioned can still be addressed through a careful and objective interpretation that scrutinizes the words used in the text to tweak out their meaning that is consistent with the document with which they are associated. However, as a good interpreter will concede, words do have a certain elastic quality; however, this elasticity is not without limit. Like a rubber band, the meaning of words can be interpreted—stretched—only so far, and then they break, i.e., their meaning is lost or becomes highly subjective and therefore meaningless as Lewis Carroll’s example would suggest.
In the context of the Alabama marriage litigation, I hold and argue the view that the words of the Constitution cannot be stretched to the point that the Alabama counsel suggests they can.
In the current political and legal climate dealing with claims for same-sex marriage, it is generally argued that constitutions, those of the States and that of the United States, support the claims based on claims made from equal protection under the law (equality) and, then, due process.
I have previously addressed the equality arguments here at the Mirror of Justice and elsewhere. But to reiterate briefly what I have said in the past, the meanings of the phrase “equal protection” and the word “equality”, like other words and phrases, cannot simply mean what the advocate—or Humpty Dumpty—intend them to mean. While every human person is equal to all others in some regards, they are not equal in all regards. We see and accept all kinds of inequality in various realms such as salary compensation or recognition of sporting, artistic, and literary accomplishments. The fact that such inequality exists does not vanquish the meaning of equality and equal protection insofar as the United States Constitution addresses and protects equality and equal protection.
So, when it comes to the rights that any of us have under the United States Constitution, we need to bear in mind the boundaries which words have in a legal context. When we fail to do this, the words of important, foundational legal texts are deprived of their intended and purposeful significance and of their general application. The result, then, is not the desirable ordered liberty of our Federal Republic but chaos.
Monday, January 12, 2015
I begin by thanking our friend and Mirror of Justice colleague Professor Michael Moreland for bringing to our attention news of the death of Walter Berns. He came to my undergraduate alma mater (Georgetown) to begin his late teaching career after I received my bachelor’s degree. I should like to have studied with him and learned from him. Several of my teachers who have also since gone home to God would speak enthusiastically about him to me thereby complicating my regret. One of the elements of Michael’s posting that caught my particular attention was the passage in which Berns brings up the matter of law and morality and whether there is a nexus between the two. On this subject I would like to offer a few thoughts today.
Berns, like others, was on to something. A little over a year ago I was to deliver the annual Murray Lecture at Loyola University Chicago in November of 2013. While the lecture was not delivered due to my having a prolonged hospitalization around that time, the editors of the Law Journal graciously published the lecture as they had done with all the previous Murray Lectures. The 2013 lecture was entitled “The Law as a Moral Enterprise”. I debated with myself if the title should have been “The Law Is a Moral Enterprise” but went with the designation chosen. The lecture is HERE: Download 46LoyUChiLJ293.
In the lecture, I wrestled with a notion that has attracted the attention of Berns and others, such as Lon Fuller and H. L. A. Hart. My view is that the law is frequently a moral enterprise if the adjective moral and the noun morality are understood to mean those matters involving human character and behavior necessitating a distinction and choice between what is right and what is wrong; what is good and what is evil. Those that rely on the position that you cannot legislate morality ever are, in my view, wrong. By way of illustrating my point, the civil laws dealing with murder, adultery, theft, and perjury require those who are subject to these laws to make distinctions between right and wrong; between good versus evil. These kinds of civil laws regulate the moral choices made by those subject to the law. By the way, the types of law just mentioned appear in the God’s law as well, but I digress.
But there are even some civil laws which, while facially neutral in a moral sense, nonetheless have a moral foundation if the analyst digs deeply enough to discover the connection. For example, civil laws necessitating that motorists drive their motor vehicles on the right side of streets having two-way travel (as they do in the US) or on the left side (as they do in the UK), at first blush, appear to be morally neutral. However, one can eventually see a moral element contained in these facially neutral laws which necessitate a choice between keeping the roads safe by mandating a uniform manner of travel. This choice is a moral one designed to protect people rather than to endanger people. Another example follows: while there is not much wrong in having a wee dram to drink at a social gathering and then to drive home, there is something terribly wrong in allowing motorists to drive while under the influence. Hence the civil law again requires the citizenry or subjects of the law to pursue the good and the right and to avoid the evil or wrong by limiting how much alcohol is consumed before taking to the wheel. These laws again deal with exercises necessitating people to make the moral choice.
As I intend to keep today’s post brief, allow me to conclude with a passage from the 18th century English polemicist and essayist who used the nom de plume Junius. In his January 1772 letter to the Lord Chief Justice Mansfield, he asserts the following in a passage dealing with the meaning and intent of the legislature,
To investigate a question of law, demands some labour and attention, though very little genius or sagacity. As a practical profession, the study of the law requires but a moderate portion of abilities. The learning of a pleader is usually upon a level with his integrity. The indiscriminate defence of right and wrong contracts the understanding, while it corrupts the heart. Subtlety is soon mistaken for wisdom, and impunity for virtue. If there be any instances upon record (as some there are undoubtedly, of genius and morality united in a lawyer) they are distinguished by their singularity, and operate as exceptions.
These words of Junius may well be a helpful catalyst useful for those of us who are interested in the law as teachers or practitioners or citizens; in the need to make good moral choices; in the desire to practice virtue; and, of course, in the pursuit of developing Catholic legal theory. With this in mind, the intersection of the moral and the legal may become more of the rule rather than the exception as hinted to by Junius.
Sunday, January 11, 2015
One of the disappointments of stepping down from the vocation of teaching is the infrequency of engaging students and fellow teachers about the elements that make a Catholic and Jesuit institution different from other law schools and universities which pursue or claim to pursue academic and institutional excellence. I am certain that this kind of discussion, or at least the need for it, has not dissipated in the current climate of legal education. Thus, I was intrigued by what Autumn Jones presented in her recent The Atlantic article entitled “The New Brand of Jesuit Universities.” [The link to the article is HERE.] Although the article presented many facets of higher education that rely on the modifiers “Catholic” and “Jesuit” which provoke and merit thought and discussion, the published perspectives of many of those interviewed for the Jones article were profoundly marred; hence, the nature of the enterprise of Catholic and Jesuit education was acutely misrepresented. If the perspectives offered in this article are the prevailing views of what Jesuit universities are and are not about, they will likely have, in time, an impact on most institutions of higher education which employ the moniker “Catholic.” If this is the case, then it will only be a matter of time for these views to have an impact on our Mirror of Justice project of developing Catholic legal theory.
Ms. Jones points out several times in her article that the charge of Jesuit universities is the desire, indeed, the necessity to think critically about everything discussed within the walls of the academy. One could well argue that this is the mission of all universities. However, does this really happen? I, for one, think that it does not. First of all, universities today—including those claiming to be Catholic and/or Jesuit—sustain a climate in which certain issues (for example: abortion; sexual and gender identity; sexual morality) which need to be discussed and debated are off limits. To borrow from one prominent American politician, certain matters are “sacred ground” and cannot be questioned. They can only be championed in spite of their dubious nature which often begs but infrequently produces critical thought and debate. A second matter follows: what can be questioned in the cultural milieu today without restraint are the teachings of the Church. This questioning is promoted in such a way that hinders exposition, objective discussion, or a faithful presentation of what the Church teaches and why she teaches what she teaches. While The Atlantic article contends that Jesuit universities are “a testament to the…willingness to confront rather than avoid difficult topics,” I contend that this is often not the case. My contention is based on the fact that I have taught or lectured at half of the Jesuit universities which sponsor law schools. If one were to try and engage others in an informed and objective presentation and discussion of these “difficult topics” on a Jesuit campus, he or she would likely be marginalized in a variety of ways. Someone close to me once tried in a respectful way to invite discussion and deliberation about the suitability of a drag show and a coming-out ball on a Jesuit campus; he was pointedly reminded that such matters were, in fact, off limits when he was summarily removed from the rotation of priests scheduled to celebrate the Eucharist in the university chapel. Third, the present cultural climate on many of these “difficult topics” sustains an atmosphere in which the “right” to abortion, the legitimacy of same-sex marriage, and the “right” of all to define for themselves (and everyone else) the nature “of existence, of meaning, of the universe, and of the mystery of human life” can never be questioned, critically or otherwise. These subjects are off the table. If you choose to raise them, you do so at your own peril. While the much-celebrated virtue of critical thinking requires patience, objectivity, and respect for and understanding of opposing views, it also mandates the inclusion of pressing issues that requires careful and courageous examination if the truth of the matter is to be sought.
At one point The Atlantic article discusses critical thinking within the framework of exploring variations in “religious ideology”. The choice of the word “ideology” is an interesting one. I would think that if the nature of critical thinking within the realm of Catholic and Jesuit education is being explored, the far better word would be “belief” rather than “ideology”. The term “ideology” might seem to equate tenets of faith, especially those of Catholicism as the subject of Jesuit universities is on the table, with political or other non-religious dogmas. One interviewee pointed out the importance for the members of the university to ask the “meaning questions” regarding faith; in this person’s estimation, the framework for doing this is to take the approach of “invitation Catholicism versus command Catholicism.” I do not think it is really a question of attempting to distinguish “invitation” from “command” Catholicism. Rather, it is a question of whether the Catholic faith and the Church’s teachings are (to borrow from the supporters of the More than a Monologue conference several of us discussed at this site a few years ago [further information HERE]) “clearly stated and articulately defended… in a spirit of dialogue that is proper to an academic setting… [noting that] the strength of these teachings will be quite convincing, based as they are on revealed truth.”
For those of us who have ventured into discussing matters dealing with truth and falsehood in the academic arena, we know that there can be perils of doing so especially in the academic culture of today. But if we also claim to follow Christ, must we not be afraid about doing this? Christ acknowledged that he is the way, the truth, and life; yet, many well-intentioned folks, including a good number of members of Catholic and Jesuit university communities, deny His claim. Taking stock of legitimate academic freedom, this is an odd response especially for those engaged in a work that uses the name of the Society of Jesus. I base this contention on what the Society of Jesus is or what it is supposed to be. Many of the voices quoted in The Atlantic article appear to be ignorant of the nature and raison d’être of the Jesuit order, which its founder Saint Ignatius of Loyola presented in the following manner in the Formula of the Institute (the foundational document of the Society of Jesus):
Whoever desires to serve as a soldier of God beneath the banner of the cross in our Society, which we desire to be designated by the name of Jesus, and to serve the Lord alone and the Church, His spouse, under the Roman pontiff, the vicar of Christ on earth, should…keep what follows in mind. He is a member of a Society founded chiefly for this purpose: to strive especially for the defense and propagation of the faith and for the progress of souls in Christian life and doctrine.
The means for accomplishing this purpose are subsequently outlined in the Formula of the Institute. One of the specific apostolates mentioned to achieve the purpose of the Society of Jesus is education which may well include the development of Catholic legal theory. This is the context in which Jesuit education is supposed to operate; however, it is not mentioned once by any of those interviewed by Ms. Jones. As one who dedicated a large portion of his life to assisting in furthering the purpose of the Society of Jesus, I am deeply saddened by most of the views expressed in her essay. The interviewees quoted in Ms. Jones’s article aver a variety of competing and contradictory alternatives to the authentic purpose of the Jesuit order and the apostolates sponsored by it for attaining the specified goal. A couple of these dubious alternatives argue that distinctive quality of Jesuit education is the mantra of “social justice”.
Without further definition (none is offered), this term that presumably characterizes Jesuit institutions is vacuous. Can you think of any institution of higher education that makes the claim that it is for social injustice? Probably not. If social justice is to mean anything for Catholic educational institutions, it must be presented within the framework of the justice of Christ. For the Jesuit institution more is required than the simple assertion that it is for “social justice”. Yet for many on Jesuit campuses the mere utterance of the mantra is sufficient to maintain its bona fides. At this stage, another question emerges from some of the views expressed in The Atlantic article: is there are substantive distinction between being Catholic and being Jesuit essential to explaining the Jesuit “brand”?
In 1994 David J. O’Brien touched upon the distinction between Catholic and Jesuit in his Conversations on Jesuit Higher Education essay entitled “Jesuit, Si, Catholic… Not So Sure.” The distinction O’Brien examined is evident in the opinions of several of those persons interviewed for The Atlantic article. As one employee of a “Jesuit” school asserted, “We hide the word ‘Catholic’ from prospective students… We focus on the Jesuit piece rather than the Catholic piece.” While such an attitude is antithetical to the definition of what it means to be “Jesuit” as defined by the Formula of the Institute, there it is nonetheless. This misapprehension about what is constitutive of Jesuit education is apparently held by some charged with the governance of these schools that rely upon the name “Jesuit”. As one member of a board of trustees was quoted, “We’re more concerned with the Jesuit way than with Catholicism.” Strangely this contradicts the Formula of the Institute; moreover, it disregards the valuable insight of Avery Cardinal Dulles who, in describing the nature of Jesuit higher education, stated that the Jesuit element must be “an intensification” of its Catholic element.
Another perspective found in The Atlantic article contends that “it’s ultimately out of the university’s hands as to whether it retains its Catholic identity… it’s up to the Catholic Church.” While it is true that competent ecclesiastical authorities have, under the law of the Church and the documents of the Second Vatican Council, the authority to determine who can and who cannot use the moniker “Catholic,” it is not the Church who really imposes the nexus; it is an exercise of the authentic freedom of the school itself to decide whether it wishes to be a Catholic institution or not. While it may seem to be Catholic insofar as it has religious symbols like crosses and crucifixes on the campus, it is finally the decision of the institution to live and express its Catholicism or not in everything that it does. If it asserts that it is Catholic, then it must affirmatively demonstrate that this is so by living and proclaiming the Good News and through adhering to two thousand years of authentic Catholicism. To borrow from the title of the article from The Atlantic, the brand name may be there; however, whether it is the genuine article or a counterfeit knock-off is up to the institution’s fidelity to the prescriptions set down by Saint Ignatius. Truth in advertising is vital to the authenticity of the claim that a school is Jesuit. If I may borrow from the Formula of the Institute, whosoever desires to serve as a Jesuit institution should keep what follows in mind: that the Jesuit order was founded for this purpose, which is “to strive especially for the defense and propagation of the faith and for the progress of souls in Christian life and doctrine.” I fear that in today’s climate many students, faculty, and administrators who believe they are a part of Jesuit education would find it difficult to endorse this essence of what it means to be Jesuit.
Let me conclude today’s posting with this thought. I think that Autumn Jones has done a great service by publishing her article upon which I have commented here. Her essay can serve as a catalyst for folks who are supportive of and concerned about the status of Jesuit and Catholic higher education to reflect critically upon what is at stake so that the enterprise of Catholic higher education may flourish. For those who believe that Christ is the Lord and Savior of the human person, let us not be afraid to follow Him rather than the sirens of the present age who think and claim that they are a part of the enterprise molded by Ignatius but, in fact, are not. Christ engaged the world for the particular objective of human salvation, and this purpose became that of Ignatius of Loyola. May this end be unambiguously reflected in the lives and work of those who follow the Son day after day on the campuses that claim to be Jesuit and Catholic. This work is not one of imposing but of proposing the objective for which the Jesuit order was established.
Tuesday, December 30, 2014
As I mentioned in my last post of December 24, I am working my way through Jessie Child’s God’s Traitors: Terror and Faith in Elizabethan England. Yesterday, I came across a reference in the Child’s book to an interesting but ominous statute enacted by Parliament in 1585 [27 Eliz. c. 2] severely regulating—by means of prosecutions for high treason, the imposition of onerous fines, the legal device of praemunire, and other mechanisms—the presence and apostolic work of Jesuits and other Catholic clergy trained elsewhere in Europe, along with “such other like disobedient Persons,” for “stir[ring] up and mov[ing] sedition, rebellion, and open hostility” within Elizabeth’s realm. [the English of the statute has been modernized] A digital copy of this legislation is HERE: Download 27 Elizabeth c. 2. The title of this Act is duplicated in the subject line of this posting.
Upon reading the Elizabethan legislation dealing with Jesuits and other “papists”, I considered whether there may be parallels in which legislators and interest groups of today propose laws and regulations that have similar effects on the practice of the Catholic faith in the US and the other western democracies. This may be an item which those attending the Lumen Christi/Christian Law Professors Fellowship event that overlaps with the upcoming AALS conference being convened in our nation’s capital may wish to explore given the importance of libertas ecclesiae to many members of the mentioned gathering.
A major objective of the Elizabethan legislation was to compel the realm’s subjects to conform to the previous laws making the sovereign the supreme head of the church in England and to observe scrupulously other laws regulating religious belief and practices (practices including not only private devotion but also religious exercises in public life). Within the context of this goal, an underlying objective was to eradicate any element of “popery” involving any practice of the Catholic faith that would include the education of young persons. In reflecting upon the legal developments of the present age having an impact on any aspect of religious freedom (a topic frequently addressed by contributors to the Mirror of Justice), I think it vital to consider how the practice of Catholicism in the public square today, which includes the enterprise of education that employs the modifier “Catholic,” has been adversely affected by ongoing legal developments in the US and other democracies, e.g., what must be taught in Catholic schools of any level; what activities the faithful and their clergy can pursue in public life; what can be expressed from any pulpit that some may consider “hateful” and, therefore, prosecutable statements; the degree to which religious persons may engage in any aspect of public life (especially the right of free expression of ideas related to the common good) as urged by Catholic teaching.
The Elizabethan legislation gave several outs from prosecution for those who might otherwise be subjected to the statute’s enforcement. The first was to leave the jurisdiction “if the Winde Weather and Passage shall serve the same”. Thank goodness for the cooperation of the mercurial nature of the weather and tides! Another way to avoid prosecution and forfeiture of all possessions was to conform to the state religion where the temporal sovereign is the self-declared “supreme head”. But these “options” were as odious to English Catholics of the Elizabethan era as they would be to many of us today.
I would like to emphasize the portion of the Elizabethan statute that attempted to control education in such a fashion that only state-sanctioned education—which would of course undermine the competence of Catholic authorities and the presence of Catholic teaching—could be made available. An initial point about this element of the statute meriting attention is the will to control what is taught and what is forbidden to be taught. This was not simply a problem for Elizabethan times; it is of major concern today when Catholic institutions are pressured in some form or other to suppress the Catholic perspective and teachings or face the consequences that the regulators will decide. I can recall being present at faculty-appointments meetings where the suitability or unsuitability of candidates for teaching posts was discussed and where anyone “too Catholic” would likely be removed from further employment consideration. Another point worth considering here is what role, if any, do Catholic and Christian teachers of the law have in those matters dealing with the tack of curriculum development and the approaches to how substantive matters are to be taught? Clearly those of us who have taught law or continue to do so have many occasions to form intellectually and virtuously future lawyers, judges, legislators, regulators, and citizens so that laws concerning the authentic freedom of religion will not duplicate the grave harms present in the Elizabethan statute. Might we take a moment as we plan our instruction to consider the prophetic words of George Santayana: those who do not remember the past are condemned to repeat it?
Perhaps the words of Christopher Dawson, an Englishman and convert to Catholicism, might further inspire legal educators who consider themselves Catholic and Christian as they pursue their duty: “if Christians cannot assert their right to exist in the sphere of higher education [or any sphere, for that matter], they will eventually be pushed not only out of modern culture but out of physical existence.” Dawson further noted that his warning applied not only to those who live in totalitarian systems but also to those who live in the realms of the great western democracies.
As teachers of the law, we have an obligation to remind anyone with whom we come in contact about the dangers of the past that threatened libertas ecclesiae. If we do not, let us not look for scapegoats when we are condemned to repeat and experience these perils.
Wednesday, December 24, 2014
I apologize for my absence from this site for a bit, but some may find this truancy a blessing, but others may not. Nevertheless, I digress.
Tonight, we Catholics and many other Christians celebrate Christmas Eve. There was a time when Catholics in the United States celebrated this night with many of our fellow Americans and citizens and subjects around the world not only as a holiday but as a feast of the Church. But nowadays, this is less so. Christmas or the Holidays as Christmas is more popularly known these dys (which holidays, I am not sure: Lincoln’s Birthday? Ground Hog Day? Arbor Day? Etc.) seem[s] to be a celebration of something other than God’s gift of Himself for the salvation of humanity—God through His Son giving of Himself even unto death to rescue us from our sins in order that we might be with God forever. I was reminded of this loss after leaving the Dana Farber Cancer Institute yesterday following a long day of treatment and passing by the fashionable Chestnut Hill Mall near Boston where thousands were engaged in the frantic suit of buying gifts for family and friends. Mind you, buying gifts for loved ones is not the issue; but the fundamental reason of why we buy and exchange gifts in the first place is the issue. After all, there is something more to this celebration of Christmas (or the Holidays), is there not? Indeed, there is.
I was reminded of this today as my Jesuit Community buried another brother whose life and apostolic service to the Church and to the world were dedicated to this first principle of our faith and religious heritage just mentioned—remembering the reality of Christ. Yet, for many in the present age, this gift of Christ—God incarnate—is a strange notion or idea. But should it be? If this is a relevant and important question for us Christians, should it not also be, for us who subscribe to a project called Catholic legal theory, to address whether Catholic legal theory is an enterprise imbued with the celebration of Christmas and the gift that it is for not only the hereafter but also for our existence in this world and the universe that surrounds it? How do I answer my own question? Let me begin with this.
The other day I took up our colleague and friend’s, Michael Moreland’s, suggestion/recommendation about Jesse Child’s new book and read God’s Traitors, a remarkable book that deals with Catholicism in Elizabethan (the first of that name) times. After devouring this text, I was led to another book of a related topic, Faith and Treason (dealing with Catholicism in the subsequent reign of James I) published by Lady Antonia Fraser in 1996. As a consequence of reading and reflecting upon both texts, I came to realize how our sisters and brothers in Christ—and my own brothers in the Least Society of Jesus—had to navigate a perilous course in a country that was not only Christian but, at one time in its history, indisputably Catholic. I am not suggesting here that the United States or, for that matter the rest of the world, should be a theocracy or a nation with an established church—the Catholic Church in particular. But what I am arguing is that our present day political, economic, and social cultures have lost something toward which Catholic legal theorists can contribute a remedy for the common good—ah, yes, the common good—of each and every one of God’s creatures. But the contribution is more than an academic enterprise—it is a gift of one’s self to one’s friends whoever they may be. And this is a point that periodically emerges in the Childs and Fraser books.
Childs offers an insight about this when she discusses the anti-Catholic legislation of Elizabeth’s Parliaments and refers to a poem penned by a member of a recusant family that mentions a Ciceronian maxim: Honos alit artes—honor nourishes the arts. What if the law with which we of the Mirror of Justice deal with actually nourished and promoted honor—honor being the virtuous life that understands what is the essence of the human person and the role of public norms in guiding all human persons to embrace the search for the common good rather than the politically expedient or, worse, the political objectives of a self-referential elite whose will is strong but whose objective intellect capable of comprehending the intelligible reality that surrounds us is weak or nonexistent at all? I think this is a major role, a vocation, of the Catholic legal theorist not only for today but for every day. Moreover, it is a gift of self that is intended to be given time and again.
If my assumption has merit, might we of this Mirror of Justice community extend a gift for the rest of our fellow creatures in this season of holiday gift-giving—a gift of self and our intellects and labors, such as they are, that offers the hope and promise of Christ in concrete fashion so that, if I may borrow from Lady Fraser’s conclusion, we become a people whose motives are noble and whose actions are upright. In particular, may this gift of one’s self provide the environment for the making of and the living by laws that reflect lives of virtue, and serve as models of human existence that merit duplication by those whom we encounter in this world as we people of God prepare for the next.
A blessed Christmas to you all!
Thursday, December 4, 2014
Media outlets have once again focused on the wave of sexual assault taking place on U.S. college and university campuses. The stories about the University of Virginia’s recent experience are illustrative of a national phenomenon. Of course the law has, through the Title IX provisions overseen by the Department of Education, been involved in the process. But is the fundamental purpose of these laws—to protect the young—really understood by all of those entrusted with the law’s execution?
Recently, I have been discussing these matters with Jesuit confreres who are on the respective campus committees of their schools that are attempting to assist these institutions in compliance with the Title IX provisions dealing with sexual assault. From discussions with these priests and friends, I think it safe to say that most schools are concerned about the need to comply with the civil laws. However, I question whether these committees in their entirety are looking at the root problems and the convergence of these problems that lead to campus climates where a combination of factors, not addressed by some interpretations of the law and therefore not addressed by the school committees, lead to the “perfect storms” of rampant sexual misconduct that bring great harm to many of our young people.
A friend of many of us here at the Mirror of Justice John Garvey, who is president of The Catholic University of America, has acknowledged that one of the underlying problems of these perfect storms is having young men and women live together in campus residence halls where their common life leads to sharing more than simply a roof overhead. Other elements of the perfect storms begin to enter the forecast, and these include: permissive attitudes about alcohol and other drugs on campus and, so-called, peer education programs that promote rather than deter sexual promiscuity. The forecast gets amplified by current trends to make toilet and shower facilities “gender neutral” so as to assuage the feelings of those students who “feel uncomfortable” with sex/gender assigned bathroom facilities. Another factor needs to be considered here: there are faculty and staff who find the sexual desires of students reflective of their own life choices. Consequently, some of these staff and faculty would not want to see their educational institutions make policy decisions pertaining to student housing and student life that contravene their own life-style choices.
All of these factors lead to the perfect storms of sexual assault that currently exist on American campuses and will likely continue to exist until the fundamental purposes of the moral law and the civil law are viewed in the light of protecting our young people from living and other institutional circumstances that are dangerous to their health and wellbeing.
I know for a fact that many of my colleagues in the academy will regard my perspective as old-fashioned and not with the times; however, my retort is that in spite of being old-fashioned and not with the times the principles that I would propose for student life—including separate housing for men and women, intolerance of on-campus alcohol and drug abuse, and a cessation of freshman orientation programs that teach our young on the intricacies of how to have “safe sex”—should have a noticeable and remedial impact on the campus culture of the present age that sustain the perfect storms bringing havoc to so many college students today. Trying to comply with laws in ways that avoid dealing with the root problems that lead to and sustain the perfect storms is not the way to go about protecting those entrusted to our care.
Monday, December 1, 2014
Today, the first of December, is a special day in the liturgical calendar of the Society of Jesus—the religious institute to which I belong. It is the feast of the martyrs Saints Edmund Campion, Robert Southwell, and companions. Of course the English and Welsh Church offered up a good number of members of other institutes, the secular priesthood, and the laity who would not compromise on their Catholic faith but, by the same token, did not betray their loyalty as subjects of the temporal realm. In spite of what the temporal powers demanded of them, they simultaneously remained true to the faith and their sovereign.
It could have been Campion and Southwell and their companions that Cardinal George had in mind when he recently figuratively (and, perhaps, literally) stated that he would likely die in his bed; his successor in prison; and the latter’s successor a martyr for doing what Saint Paul in the letter to Titus reminds all Christians to be their duty: to encourage others in sound doctrine and to refute those who oppose it. [Campion and some of his companions were teachers, and they understood the value of authentic academic freedom to search for and present in public fashion the truth of God.] While such talk may be dismissed as hyperbole in the present age, is it?
We do not have to look far today to see that there are still martyrs, usually folk from ordinary walks of life, who are dying for the Catholic faith and for no other reason. This has been the history of the Church since its beginning; the tradition continues because people like Campion and his fellow martyred Jesuits understood well that they joined the enterprise of the Society of Jesus for one purpose alone: to strive especially for the defense and propagation of the faith and the progress of souls in Christian life and doctrine.
This is evident from reading Campion’s apologia which Father Campion submitted to Queen Elizabeth I’s Privy Council after his capture and before his execution. [The apologia (oft referred to as “Campion’s Brag”) is HERE] His words do not betray any disloyalty to his sovereign, but they confirm the sincerity and profundity of his faith in Christ and His holy Church. The so-called Brag is worth studying carefully, but these words stand out for me and, perhaps, others:
…The expense is reckoned, the enterprise is begun; it is of God, it cannot be withstood. So the faith was planted: so it must be restored…
Saints Edmund Campion, Robert Southwell, and companions: pray for us!
Friday, November 7, 2014
Many of the Mirror of Justice community, amongst others, have been following the work of and reports about the 2014 Synod on the Family. While the pace of the Synod’s work and observations about the Synod may let up a bit over the coming year, it won’t disappear as the work of the Synod will continue. In addition, the Philadelphia Archdiocese’s World Meeting of Families scheduled for next year will or should intensify the labors of the Synod.
I was surprised that there was little if any public discussion about the 1983 Charter of the Rights of the Family in the 2014 Synod. From my perspective, the Charter, while a document from the past, is surely related to the purpose of the Synod on the family. The relevance and significance of the Charter to the work of the Synod are critical. Yet, not much, if any, mention and discussion of this important document occurred during the Synod. Thus, this posting is designed to alert the members of the Mirror of Justice community to the role the Charter should have in the continuing work of the Synod.
First of all, a few general remarks about the 2014 Synod are in order. I share with many the view that texts, even ambiguously drafted ones, are important because the meaning of words and the ideas they represent are significant. We lawyers and others interested in the law and (Catholic) legal theory should agree with this point. Hence, the documents that have been generated by and that will be further produced by the Synod are critical to the legal, political, social, economic, and cultural issues concerning marriage and family life.
In addition, when documents are drafted in one language, it is imperative that their translation into other languages be faithful to the original text, the intent of that text, and the objectives of that text. While my Italian language skills are imperfect, I think my command of that language is sufficient to state here that some of the English translations of various documents of 2014 Synod were flawed and thus misrepresented the gist of the original documents. I hope that the misrepresentations of the past caused by faulty translations not be repeated in the future work of the Synod for the texts that it will produce cannot afford mistranslations especially when the critical meaning of the original documents is at stake.
Second, I return to the important role of the 1983 Charter on the work of the Synod on the Family. The three-decades old deliberations behind and the preparation of the Charter were and remain significant. While the Charter was completed and promulgated a generation ago, its relevance to the present age and its concerns about the family have not been altered by the passage of time. So what does the Charter say? For those interested, its full text is HERE. For the convenience of Mirror of Justice contributors and readers, I will present some of its salient points here that are worth pondering as the work of the Synod continues.
The first point is that this document was produced by the Universal Church, that it, it is the work of the Holy See, the 1980 Synod of Bishops, and the bishops’ conferences around the world. Next, it was not prepared solely for the Church and her members; it is also addressed to all States, international organizations, institutions, and persons in order “to promote respect” for the rights of the family “and to secure their effective recognition...” In short, the Charter was prepared for all people of good will.
A second point about the text is its definition of family as being based on the institution of marriage which is “that intimate union of life in complementarity between a man and a woman which is constituted in the freely contracted and publicly expressed indissoluble bond of matrimony and is open to the transmission of life.”
A third point is the Charter’s accord with international documents such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights in the contexts of their definitions of marriage and the family—the basic cell or unit of society. The Charter further declares that as a natural society, the family pre-exists the State and all other communities and possesses rights that are inherent and inalienable.
A further point of concordance with international documents is the Charter’s reminder that States and international organizations have the affirmative responsibility of protecting the family through political, economic, social, and juridical measures.
The twelve substantive articles of the Charter elaborate upon its preambular principles I have just presented. These articles, moreover, are also in harmony with parallel principles found in international juridical and declaratory texts. However, one of these principles needs emphasis here, and that is that there is a natural complementarity that exists between man and woman that is essential to the relationship of spouses and the spouses’ dignity and rights. It appears that some of the participants at the 2014 overlooked this vital tenet; but it cannot be neglected without also ignoring the comprehendible reality of human nature.
A second principle from the substantive articles follows, and it is one that is frequently absent from many contemporary discussions or considerations of authentic human rights. This principle is the clear statement that human life is non-negotiable and must be respected and protected, absolutely, from the moment of conception onward. In this context, the Charter anticipates those who wish to make abortion access a “human right” by its stating that intentional abortion “is a direct violation of the fundamental right to life of the human being.”
As I have previously mentioned, the Charter deserves our careful reading and appreciation. Equally important is that the Charter demands the careful understanding and appreciation of the participants of the ongoing Synod on the Family. In its entirety, the Charter is also a pastoral document which enables Catholics and all people of good will to ensure the protection of the legitimate rights and responsibilities of families and each of their members.
As a number of folks have been asking me recently how I am doing on the health front, allow me to end today’s posting with this brief personal note containg some general information that is intended for the many wonderful people who have been praying for me. By the way, your prayers are deeply appreciated! I am now in my tenth chemotherapy; the first nine (including one clinical trial) have all ended in failure for one reason or another. The current therapy does not seem to be going well, but the doctors and I have agreed that a few more cycles are in order to ascertain whether I am receiving any benefit from this cocktail or not. Furthermore, another brain MRI done previously this week indicates that the lesion detected in my brain earlier this summer has grown considerably since its first detection; moreover, it appears that blood vessels in the vicinity of the lesion have also become enlarged and may be supplying the lesion with oxygen and nutrition that should be going elsewhere. I will have some more MRI work done this coming week along with another lumbar puncture to assess these developments in my central nervous system and to determine whether any cancerous B cells are present in my spinal fluid or not. These B cells have sometimes been detected in past lumbar punctures, but other punctures have been negative. Again, the point of this personal note is to thank all of you for your prayers for they are and remain vital to my wellbeing notwithstanding the challenges that I presently face. I can assure you of my own prayers for you in return. Let us also pray for our Church and for the ongoing work of the Synod.