Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Wednesday, October 7, 2015

Francis and Religious Freedom Arguments

In my presentation on religious freedom arguments to "reach the persuadable middle," I conclude with three things to learn from Francis in this context.

First, he emphasizes (like others) that freedom for religious organizations is--not solely, but very significantly--"freedom to serve,” especially those in greatest need. As he said in Philadelphia:

[R]eligious liberty, by its nature, transcends places of worship and the private sphere of individuals and families. Our rich religious traditions [also] serve society…. They call to conversion, reconciliation, concern for the future of society, self-sacrifice in the service of the common good, and compassion for those in need. At the heart of their spiritual mission is the proclamation of the truth and dignity of the human person and human rights.
As John Allen remarked in the pre-visit story Rick blogged about some time back, Francis’s emphasis--on "giving the Church freedom and space to bring the Gospel to the ‘existential peripheries of society’"-- is "potentially a game-changer” in the debates over religious freedom. He speaks with credibility about serving those in need. Others with such credibility need to speak up too. As Allen says, this is one the few hopes we have that "the push for religious liberty [might] transcend the divisions often associated with the wars of culture.”
Second, Francis respects and acknowledges other interests and perspectives. In his dialogues with secular/nonbelieving journalists and others of differing views, he goes out of his way to recognize their good will and the contributions they make to the common good. Respect for others must appear not only in how one argues for religious freedom, but also in the substantive scope of freedom that one claims. It is both unsupportable as matter of principle and unwise as a matter of pragmatics to make overbroad assertions that fail to take account of legitimate concerns of justice or policy that may appear on the other side of a dispute. I'm not saying here where those lines should be drawn for any particular case; that's a subject for (many) other posts. I'm just saying that in asserting or defending the (crucial) right to religious freedom, one should also give the kind of sympathetic consideration to others' interests that we rightly claim they should give to interests of religious conscience.
Third, the case for religious freedom should be presented in a way that reflects joy. Not simply dark mutterings about the downfall of society--those dark mutterings are sometimes wrong,  I think, and even to the extent they're right, the challenges should be addressed joyfully. Plus expression of joy in the act of service. From Evangelii Gaudium, paras. 12, 15:
The life of the Church should always reveal clearly that God takes the initiative, that ‘he has loved  first’ (1 Jn 4:19) and that he alone ‘gives the growth’ (1 Cor 3:7). This conviction enables us to maintain a spirit of joy in the midst of a task so demanding and challenging that it engages our entire life…. Instead of seeming to impose new obligations, [Christians] should appear as people who wish to share their joy, who point to a horizon of beauty and who invite others to a delicious banquet.

October 7, 2015 in Berg, Thomas | Permalink

Tuesday, October 6, 2015

Fleming Rutledge on the Crucifixion

Fleming Rutledge is one of the great preachers of our time. Check out her "Generous Orthodoxy" website here--and get a hold of any (or all) of her sermon collections on Paul, or Romans, or the Old Testament, or Easter, or The Bible and the New York Times. She confounds both conservatives and liberals by preaching universal themes--original sin, amazing grace, and their social and cultural implications--that undercut all our more partial political perspectives. She was also one of the first dozen or so women ordained in the Episcopal Church.

Now she's released The Crucifixion: Understanding the Death of Jesus Christ, her "magnum opus" as The Christian Century's reviewer calls it. A bit of the review:

Don’t conservative and evangelical churches regularly preach the cross and the crucifixion? Yes, they do. But they often reduce these themes to formulaic, even mechanistic interpretations of their meaning, related only to individuals and their fate after death. Moreover, as Rutledge argues persuasively, such proclamations are often theologically incoherent, doing violence to the trinitarian nature of God and rendering the God now separated from Jesus Christ into a monster.

Perhaps partly in reaction to the predominance of such reductive and misleading interpretations of the crucifixion by conservatives and evangelicals, other parts of the church—mainline, liberal, and progressive congregations and their preachers—have had less and less that is substantive to say about the crucifixion. Pelagianism, ever knocking at the mainline door, sidesteps the cross to emphasize Jesus’ good works and his role as a moral exemplar and spiritual guide. Then proclamation tends to become telling stories about Jesus rather than preaching Christ crucified. In some mainline church settings, the crucified One is portrayed as just another innocent victim of the empire, not as the One whose death constituted God’s redemptive disruption of the world.

Protestantism has had a particular problem handling this problem of sin and redemption, reducing it either to "fire insurance" for the afterlife or confident prescriptions about social reform today. But as I see it, Catholic thinkers have to deal with the same issues. 

I'm running to the store (well, to Amazon) to get Rutledge's book.

October 6, 2015 in Berg, Thomas | Permalink

Saturday, October 3, 2015

"Getting to Purple: Religious Freedom Arguments to Reach the Persuadable Middle" -- at CLS in NOLA

Today I gave a presentation at the Christian Legal Society's national conference in New Orleans. The presentation is called "Getting to Purple: Religious Freedom Arguments to Reach the Persuadable Middle" (here are the power point slides). It continues with the three kinds of arguments--civil libertarian, civic republican, and pragmatic--that I've laid out earlier in an article called "Progressive Arguments for Religious Organizational Freedom." The continued goal is to try to bridge what appear to be the hardening lines between conservatives and liberals over the value of religious institutional freedom.

I conclude the presentation with some lessons to draw from Pope Francis, who is a great model for both Catholics and others seeking to defend the freedom of religious institutions to serve others in a joyful and sacrificial spirit. I'll blog about that separately.

And for a lagniappe (Creole for "bonus or extra gift"), here is a picture from New Orleans with church-state associations. It's a jazz band at a wedding that had just finished in the church at the old Ursuline convent. You might remember that when the Ursulines nuns feared that their school for orphan girls would become subject to disruptive American regulation after the Louisiana Purchase, they wrote President Jefferson, who responded that 

the principles of the Constitution [a]re a sure guaranty to you that [your property] will be preserved to you sacred and inviolate, and that your Institution will be permitted to govern itself according to its own voluntary rules without interference from the civil authority.

(Rick, Carl Esbeck, Kim Colby, and I discuss Jefferson's letter to the Ursulines in our overview of historical sources of church autonomy, here, at p. 182.)


Ursulines Wedding 2

October 3, 2015 in Berg, Thomas | Permalink

Wednesday, September 30, 2015

John Allen on Francis and the Religious Freedom Signals

Here. It doesn't mean he necessarily supports Kim Davis in all her assertions, or even the Little Sisters of the Poor, but it is at least a symbolic statement in favor of a broad right of conscience, and perhaps meant to reassure conservatives more specifically on these issues.

To put the point in crudely political terms, Francis is a figure who utterly defies the usual left/right divides, equally capable of meeting Kim Davis and embracing poor immigrant children at a Harlem school – seeing both as part of a continuum of concern for human dignity.

September 30, 2015 in Berg, Thomas | Permalink

Thursday, September 24, 2015

Francis on the Golden Rule

Gosh, there are a lot of striking phrases in Francis's address to Congress today. Millennial Journal has 25 of them. Here's one that especially hit me. In explicating the Golden Rule, he said:

Let us treat others with the same passion and compassion with which we want to be treated. Let us seek for others the same possibilities which we seek for ourselves. Let us help others to grow, as we would like to be helped ourselves.

The Golden Rule means more than just "Don't harm others." It has many positive, and not just negative, implications. We want more than just not to be harmed, and we (as individuals and in society) should give more than that to others.

September 24, 2015 in Berg, Thomas | Permalink

Monday, September 21, 2015

The Jim Gaffigan Show: "There's Nothing Normal About Being Catholic" (said affectionately)

Does anyone else watch The Jim Gaffigan Show, on TV Land? It's a situation comedy based on Gaffigan's real life as a stand-up comic with five kids; he's also a practicing Catholic, although sometimes sheepish about it in ways that make for funny situations. In the episode we just saw, "My Friend the Priest," Jim is booked on the Tonight Show with Jimmy Fallon; his wife invites their priest, Father Nicholas (who is Zimbabwean) to join them, and Jim worries that having him in the audience will make everyone uptight and kill the laughs. The plot twists around from there. In a more recent episode, "Bible Story," a video of Jim carrying a Bible in public (which he's doing because he's running an errand for his wife) goes viral and "outs" him as a Catholic. As the real Jim Gaffigan tells the story, this episode captures much of the show's point:

Our show is just inspired by the life that Jeannie and I lead. This is one episode; this is not the pilot episode. Our show is not just about that [fictional Jim] is paranoid about being outed as a Catholic, as a Christian. One of the the things that Jeannie and I touched on is that I’m a stand-up comedian. I live in New York City, downtown Manhattan, on the bluest island in the country, and 90 percent of my friends are devout atheists.

There’s nothing normal in our society about having five kids; there’s nothing normal about being Catholic; there’s nothing normal about going onstage and making strangers laugh. That’s one of the conceits of it.

The Jim Gaffigan Show is near the end of its first season but was just renewed for a second. It's worth checking out.

September 21, 2015 in Berg, Thomas | Permalink

Friday, August 28, 2015

"Agape, Gift, and Intellectual Property"

In the years ahead, intellectual property and related legal and policy questions will become even more important than they already are. The Catholic Church has had things in the past about intellectual property rights and common good; and the Church and other Christian bodies will need to say more in the future. Following up on my previous work in this vein, I've posted "Agape, Gift, and Intellectual Property" on SSRN. The abstract:

The scope of protection of intellectual property (IP) has become a social justice as well as a legal and business issue, especially in the international arena, where disputes continue over whether expanded IP rights help or harm people in developing nations. Scholars writing in the Christian tradition have begun to respond to these questions, analyzing IP-related issues in the light of Christian theological themes such as creation, stewardship, and solidarity with the poor.

This paper, written for a Pepperdine Law School symposium on love and justice, explores potential implications for IP of another central Christian theme, agape: the form of love, independent of particularistic loyalties, that is most distinctive of Christian ethics. Agape in turns connects with the idea of “gift”: that creativity, among other human attributes, is a gift that humans receive (from a divine giver, Christians and other religious believers say). In Christian thought the sense of gift, and gratitude for the gift, connects to love of God and neighbor: the response of gratitude to God is to use the gift to benefit others. I connect these themes to those critics of IP rights, such as Lewis Hyde, who appeal to the virtues of a “gift economy” in which knowledge is shared rather than commoditized. Economies based on gift, and gratitude to the giver, have been thought to have a dark side: they can reinforce personal indebtedness and social hierarchies. But, following on the work of other Christian thinkers, I argue that the gift-giving economy can be universalized, and made more egalitarian, if we maintain, or recover, the sense that the human talents that produce goods are themselves gifts from a universal source (in Christian and other religious thought, from the God who gives all gifts in the first place).

Creativity is thus a fundamental gift we receive, and IP law should encourage the response of gratitude: dissemination of that gift to others to benefit them, and empowerment of others to realize their own creative gifts. The paper concludes with suggested general implications for IP law and policy.

August 28, 2015 in Berg, Thomas | Permalink

Tuesday, August 11, 2015

"Liberal Arrogance"

Tony Jones is an interesting blogger. He's a former leader in the "Emergent" movement among young evangelicals, a movement that one needs to understand in order to see where evangelicals are likely to head in the future. (That in turn should be a matter of interest to those asking the same questions concerning Catholicism.) Now Tony tends liberal more frequently, but he still has evangelical elements. (He has a new book out called Did God Kill Jesus?, grappling with the tough theological questions about the meaning of Jesus's Atonement.)

At any rate, Tony has a new post up on "Liberal Arrogance." It isn't, and isn't intended to be, an analytical review of this phenomenon. But it came into my inbox just as a bunch of other complaints and news stories about the same phenomenon arrived, some of them (like Tony's) complaints by people who themselves are mostly liberal. (See. e.g., Jonathan Haidt on Morning Joe today talking about political correctness on college campuses, in response to a recent Atlantic story about standup comics who run into this when they play college venues.)

"Liberal arrogance" is in danger of becoming like the weather (apologies to Mark Twain). Everyone talks about it, but no one does anything about it.

August 11, 2015 in Berg, Thomas | Permalink

Monday, August 10, 2015

More on Non-Profits (Especially Religious Ones) Providing Civic Services

Thanks, Marc, for the interesting post. I too see a difference in trends between (1) excluding religious or private groups altogether from state-promoted social efforts and (2) subjecting them unyieldingly to conditions (e.g., nondiscrimination conditions) that may effectively exclude them. I think the former impulse--to exclude religious (or more generally private) groups as such has weakened over the last 30 years, with no reversal of that recently. Obama has mostly continued the Bush administration's effort to enlist faith-based groups in social services (and channeled additional funds to FBOs in the 2009-10 stimulus package); the contribution of those groups has been commended in the 2012 Democratic platform (see p. 15) and in speeches by both Barack and Michelle Obama.

But the second impulse above, to subject groups rigidly to accompanying conditions,  has significantly strengthened  in recent years. I think it's an open question how much of this is attributable to the gay-rights revolution, and how much to the broader establishmentarian idea that the state can and should make use of religions that are willing to conform fully to the state's norms. (As Marc suggests, the latter approach is one that separationists have warned against for a long time.)

August 10, 2015 in Berg, Thomas | Permalink

Tuesday, August 4, 2015

Kasich Makes the Debate?

The NY Times "Upshot" blog reports that Ohio governor John Kasich is doing well enough in the GOP presidential race, despite his late entry, that he seems likely to squeeze into Thursday's debate. That is good news, I think, because for a couple of reasons Kasich is a candidate from whom people ought to hear more. (In contrast to the dude at the top of the GOP polls.) First, Kasich sounds many of the themes of "compassionate conservatism" that I think have  been very muted (unfortunately so) in recent Republican politics with the rise of Tea Party anger about government. Second, during this time of polarization, Kasich has, as governor, worked with both sides of the aisle.

I would still disagree with Kasich on a lot of issues (I'm a Democrat, albeit a conflicted one). Moreover, I am not saying there aren't other GOP candidates who have done the two things above.  But Kasich has done them more, and/or more recently, even when polarization was often the path of least resistance.

August 4, 2015 in Berg, Thomas | Permalink