December 05, 2013
An op-ed (by me) on the Hobby Lobby case and RFRA
I have a short piece in the LA Times today about the Hobby Lobby / Conestoga Wood cases the Court has taken up. (As usual, the headline is not the essay-writer's fault.) Here's a bit:
The Religious Freedom Restoration Act reaffirmed an idea that is deeply rooted in America's history and traditions — namely, that politics and policy should respect and, whenever possible, make room for religious commitments and conscientious objections. True, religious liberty is not absolute, and, in a pluralistic society like ours, not all requests for exemptions and accommodations can, or should, be granted. Some religious liberty lawsuits will, and should, fail, but not simply because they involve what happens at work on Monday and not what happens in services on the Sabbath.
December 04, 2013
Lithwick's confusion about "humanity", corporations, and babies
The HHS cases being brought by for-profit businesses do not present the Court with philosophical or ontological questions, but rather statutory ones. Still, for many observers and activists, the temptation to re-work these questions as partisan/political ones is hard to resist, and Dahlia Lithwick's latest Slate essay is a perfect example.
Lithwick likes abortion rights, and doesn't like Citizens United, and so in the essay she works to connect Hobby Lobby's RFRA arguments with the reasoning in Citizens United and efforts in some states to provide greater legal protection to unborn children. She ends with this:
We can protect animals and unborn babies and corporations without also embodying them with a humanity they don’t possess. Turning everything and anything into a “person” ultimately also serves to turn persons into things.
The first sentence asserts that "unborn babies" do not "possess" "humanity," which is a strange assertion. There is no serious question about the "humanity" of unborn children; the debate is about the implications of their vulnerability, dependence, and developmental progress on their moral status. It also assumes that Citizens United or the Hobby Lobby RFRA challenge involve claims that "corporations" "possess" "humanity", which is not the claim. To say that X is a "person" for legal purposes is not to say that X is a human being. The second sentence, though, makes a point that has always made me very reluctant to embrace even the Christian cases for animal rights.
December 03, 2013
Notre Dame re-files its religious-freedom challenge to the mandate
I was very pleased to learn that, on Monday morning, the University of Notre Dame re-filed its challenge to the contraception-coverage mandate. Michael Sean Winters has more details and analysis (with which I largely agree -- especially the discussion of "the freedom of the church") here. And, the story in our local paper is here. And, a short piece by me, in Notre Dame Magazine, about the University's challenge is here.
The University's President, Fr. John Jenkins, issued what I thought was an excellent statement regarding the University's decision to re-file, notwithstanding the so-called "accommodation." (I have not yet been able to find a link to the statement.) Instead of limiting his discussion to sometimes-technical issues of "material" and "formal" cooperation, he talks in terms of mission, character, integrity, and pluralism:
Our abiding concern in both the original filing of May 21, 2012 and this re-filing has been Notre
Dame’s freedom—and indeed the freedom of many religious organizations in this
country—to live out a religious mission. . . .
As I said regarding our original filing, because at its core this filing is about the freedom of a religious organization to live its mission, its significance goes well beyond any debate about contraceptive services. For if we concede that the Government can decide which religious organizations are sufficiently religious to be awarded the freedom to follow the principles that define their mission, then we have begun to walk down a path that ultimately will undermine those institutions. For if one Presidential Administration can override our religious purpose and use religious organizations to advance policies that undercut our values, then surely another Administration will do the same for another very different set of policies, each time invoking some concept of popular will or the public good, with the result that these religious organizations become mere tools for the exercise of government power, morally subservient to the state, and not free from its infringements. If that happens, it will be the end of genuinely religious organizations in all but name.
This, it seems to me, is really what is at stake -- not only Notre Dame's legal right not to be compelled to do wrong, but its legal right to be Notre Dame.
December 02, 2013
"Why the World Doesn't Take Catholicism Seriously"
A bracing challenge -- very much in keeping with Pope Francis's ministry so far, I think -- from Matthew Warner. I have an uneasy sense that a similar challenge could be issued to "Catholic legal theory" . . .
Cloutier on Douthat, Francis, "conservatives" . . . and the rule of law
A good read, at Catholic Moral Theology, from David Cloutier. I would quibble with the invocation and ritual-denunciation of supposedly "Randian" talk and thinking among "conservative" Catholics (because I do not believe that, really, any meaningfully Catholic "conservatives" embrace anything like Ayn Rand's objectivism and do believe that we should avoid taking down straw-men).
Anyway, one of the things I liked about Cloutier's piece is his reminder that "secure property rights" -- and, I would extend this to "the rule of law" more generally -- have to be seen as essential aspects of any market-system that has any hope of contributing to authentic human development. It's not so much that "capitalism" in the abstract helps to lift people and societies out of poverty -- it is that a (reasonably regulated and relatively easily navigable and fairly transparent) market economy that rests on a foundation of rule-of-law commitments, well-designed social-welfare programs, and functioning legal mechanisms does so.
More on "re-enchantment"
A reader sent in the following, which might be of interest:
Regarding Mr. Bottum's recent posts, you may have already read Tel Aviv University Professor Yishai Blank's article - The Re-enchantment of Law, 96 Cornell Law Review 633 (2011), (available at http://cornell.lawreviewnetwork.com/files/2013/02/Blank-final-essay.pdf ). The abstract:
November 29, 2013
A reader's response to Bottum's response to Garnett
A MOJ reader send in these comments:
In Mr. Bottum’s last response, I think he misses the mark on a couple of points, particularly here:
"The first is thinking that advances in law and policy have any permanence: The pendulum swings, political gains are reversed, the House changes hands, and then what do we do? As for the second mistake, we wander into magical thinking when we suppose that law and policy can drive culture more than a little, when the culture is resistant."
I don't know anyone of serious intellectual heft--particularly not you, Professor Garnett--who thinks that advances in law and policy have any permanence, and certainly not in the arena of the culture war. But advances they are, and advances they will remain so long as they are vigorously defended.
Second, I don't agree that it is "magical thinking" to suppose that law and policy can drive culture "more than a little" where it is resistant. Historical examples abound in our country or elsewhere of a change in law driving a shift in culture. Depart from the culture wars for a minute, and look to two recent examples: seat belts and recycling. I'm too young to remember the seat belt push (a telling admission of my youth, since states only began enacting them in the 80s and 90s), but reading about it and discussing it with a college professor who used it as an example in teaching the Nichomachean Ethics leaves me with the impression that our attitude towards seat belt use today is directly a product of that legal campaign, and not an inherent widespread cultural desire to change.
The same point applies to recycling: we feel a discomfort if forced to discard glass and plastic in the regular trash. Why? There has been a cultural push, but I'd argue that it's equally the response to laws incentivizing recycling. People become attuned to the goal of the law and become uncomfortable when unable to comply--not because of a fear of punishment, but because the law creates the impression that a thing is good and desirable.
Even if one disagrees with my examples, the idea that the law has a strong role in shaping personal character and perceptions of morality is not a new invention. The idea has appeared in Western philosophical thought for millennia, starting at a minimum from Aristotle and renewed in turn by the Romans, St. Thomas, and some of America's own founders. I don't wish to make this a pure argument from authority, but I also don't believe they were engaging in magical thinking.
As to the rest of Mr. Bottum's argument, I don't find anything serious to disagree with, though I'm not entirely certain what his point is by the end. With regard to the serious pro-life intellectuals engaged in the legal battles of the culture war, I've never met one who seemed prone to believing that the process was the point. Perhaps Jody's experience is different. But at least among those who approach these issues with intellectual seriousness, I have seen legitimate outrage, not ginned-up outrage. It may be fatigue-inducing to write philosophical responses to the Women's Studies faculty again and again, seemingly falling on deaf ears except among an already-willing audience, but it remains important.
Not least, it remains important because it shows--so long as such arguments are advanced charitably and in good faith--that there is an intellectual seriousness and philosophical depth to the Faith and its Teachings that allows it to stand its ground against all the errors of modernism. The early Apostles stood on both sides of this argument, illuminating Christ's love for the world through martyrdom and engaging the Jews and Romans as serious intellectuals. I don't think it's about preaching social ethics rather than living the love of Christ. Each is necessary to the existence of the other.
"And he entered the synagogue and for three months spoke boldly, arguing and pleading about the kingdom of God; but when some were stubborn and disbelieved, speaking evil of the Way before the congregation, he withdrew from them, taking the disciples with him, and argued daily in the hall of Tyran′nus."
November 26, 2013
Bottum responds to Garnett on enchantment and engagement
I am very glad to report that Jody Bottum wrote up a response to my post from the either day, about the importance of staying engaged in the perhaps-tiring, in-the-trenches efforts to secure better legal protections for vulnerable people. Here is the response, in full:
November 25, 2013
"Boring and Doomed": On the (continued) importance of engagement
In this piece, at Patheos, Jody Bottum returns to one of the themes that ran through his recent and much-discussed Commonweal piece on same-sex marriage. The piece is called "Preaching Social Ethics: Boring and Doomed." "Christianity is fundamentally a metaphysics[,]" the piece states. "Christendom is mostly an ethics. Our trouble these days is that Christendom is broken."
As with the Commonweal essay, it seems to me that this piece says some important things that are true . . . but also some things that are potentially misleading. Certainly, as Jody writes (with more flair than I'm able to muster), Christianity is not just about what we are and are not supposed to do; it's about what and Who is. But, Jody closes with this:
Forget the culture-wars crap. It was a fight worth having, back in the day when there was enough Christendom left to be worth defending. But such as American Christendom was, the collapse of the Mainline has brought it to an end. Start, instead, with re-enchantment: Preach the word of God in the trees and rivers. The graves giving up their dead. The angels swirling around the Throne. Existence itself figuring the Trinity, in how we live and move and have our being. Christ crucified and Christ resurrected. All the rest can follow, if God wants.
I realize it's kind of the thing these days to declare one's weariness with, or to announce the futility and wrongheadedness of, "culture-wars thinking." And, again, such declarations are understandable. Christians should not be happy about warmaking and the nastiness, division, snark, and pain that attend today's politics and controversies are nothing to be happy about. Far better, and far more pleasant, to relish the world's enchantment than to argue about the ministerial exception or to complain about the latest silliness (or worse) being imposed on our children by the Edu-blob.
"Christ the King: That He Would Reign in Our Hearts"
I am grateful to Michael for noting yesterday's Feast of Christ the King. In my experience, preachers in Catholic parishes don't know quite what to do with this Feast. Usually, the day's "message" or "theme" has been (again, in my experience) somewhat privatized, and homilists have tried to translate the idea of Christ's "kingship" into (something like) the importance of making sure that our lives are not ruled by other gods and that we commit to "putting Jesus first in our lives" (and, certainly, we should).
And yet . . . especially in light of the current (and much needed) focus in the Church on religious liberty and the realities of both aggressive secularism and persecution, it's worth (re-)reading Quas Primas, the encyclical of Pope Pius XI that instituted the feast day in 1925, and remembering that this institution's purpose sounded more in political theology than in personal piety and devotion. This Feast is, among other things, a reminder that government is not all, that there are things which are not Caesar's, and that everything, in the end, is "under God.
This one-page bulletin insert, "That He Would Reign in Our Hearts," put out this year by the USCCB, does a good job, I think, of tying together the "public" and "private" dimensions of the Feast.
Viva Cristo Rey!