Mirror of Justice

Rienzi on Gosnell . . . and the troubling rise in infanticide

"Gosnell's Crimes Not Uncommon" is the title of Prof. Mark Rienzi's piece in USA Today.  Here's a bit:

. . . While murder rates for almost every group in society have plummeted in recent decades, there's one group where murder rates have doubled, according to CDC and National Center for Health Statistics data — babies less than a year old. . . .

. . . Gosnell's actions are readily explainable by a culture that embraces, and in some quarters celebrates, abortion as a constitutional right. Gosnell made his living by performing legal abortions, many of them late in the pregnancy. Is it really all that surprising that he might not have seen a significant moral difference in performing the abortion a few inches inside the birth canal rather than somewhere outside?

The law can be a potent moral teacher, which is a good thing. Laws against slavery and discrimination have helped reduce prejudice. Laws requiring accommodations for people with disabilities have helped them gain visibility and greater acceptance in society. . . .

It would be naive to think that our abortion laws do not carry a similar teaching power. . . . 

"The Freedom of the Church (New Revised Standard Version)"

When it rains, it pours (interesting church-state scholarship, that is).  Following up on my post about Paul Horwitz's new paper, here's another great offering on the same general topic, by John Inazu, called "The Freedom of the Church (New Revised Standard Version):

Significant discussion about the “freedom of church” has recently emerged at the intersection of law and religion scholarship and political theology. That discussion gained additional traction with the Supreme Court’s ruling in Hosanna-Tabor v. E.E.O.C., which recognized the First Amendment’s “special solicitude” for religious organizations. But the freedom of the church is at its core a theological concept, and its potential integration into our constitutional discourse requires a process of translation. The efficacy of any background political concept as legal doctrine will ultimately stand or fall on something akin to what Frederick Schauer has called “constitutional salience.” 

The existing debate over the freedom of the church obscures these insights in two ways. First, its back-and-forth nature suggests that translation succeeds or fails on the level of individual arguments. Second, its current focus on a mostly Catholic argument neglects other theological voices. The kind of cultural views that affect constitutional doctrine are less linear and more textured than the existing debates suggest. This paper adds to the discussion a Protestant account of the freedom of the church: the New Revised Standard Version. Part I briefly sketches the process of translation that any theological concept encounters in the path to constitutional doctrine. Part II summarizes the current debate in legal scholarship about the freedom of the church. Part III introduces the New Revised Standard Version through three prominent twentieth-century theologians: Karl Barth, Dietrich Bonhoeffer, and Stanley Hauerwas. Part IV assesses the possibility of translation, and Part V warns of the theological limits to translating certain theological concepts. The New Revised Standard Version reinforces some of the normative claims underlying the Catholic story, but it does so through a Protestant lens that is somewhat more familiar to American political thought. It also differs from the Catholic account in two important ways: (1) by characterizing the church as a witnessing body rather than as a separate sovereign; and (2) by highlighting the church’s freedom in a post-Christian polity.

I'm really honored that a scholar as prolific and interesting as Inazu has taken such care to respond to some of my own efforts -- and to press my arguments and claims, and to make me re-think my own views.

Much to my own (and, I'm sure, my dean's and my editor's!) disappointment, I'm a few years behind on my "Freedom of the Church" book project.  On the bright side, the book will be much better for having the benefit of Inazu's and Horwitz's criticisms and improvements. 

"The Freedom of the Church Without Romance"

Paul Horwitz has posted a must-read paper called "The Freedom of the Church Without Romance."  It's an important piece, by an important scholar, on an important subject.  In it, Paul engages -- carefully, critically, fairly, challengingly -- with some of my own efforts to think through the "institutional" dimension of religious freedom.  Here's Paul's abstract:

This Article is part of a symposium issue titled "Freedom of the Church in the Modern Era." Freedom of the church, roughly, connotes the independent nature or sovereignty of the church. The most dramatic moment in its development was the eleventh century Investiture Controversy, with its confrontation between Pope Gregory VII and Emperor Henry IV at Canossa, but it has a long prior and subsequent history. Recently, with the renewed scholarly interest in the institutional rights of churches and religious organizations and the Supreme Court's decision affirming the "ministerial exception" doctrine in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the idea of "freedom of the church" has taken on new champions--and critics. 

This Article, from an author who has written supportively about freedom of the church and/or religious institutionalism in prior work, takes a deliberately unromantic look at freedom of the church. It evaluates it through two useful disciplinary lenses: history, and the economics of religion. Both historical and economic analysis of the concept of "freedom of the church" suggest the following conclusions: (1) The concept should be treated carefully and with a full awareness of its mixed history, without undue romanticism on the part of its champions, or a confident conclusion on the part of its critics that it is no longer necessary. (2) Whatever the concept of "freedom of the church" means today, the present version is decidedly diminished and chastened, a shadow of the medieval version. Supporters of freedom of the church should welcome that fact. Freedom of the church persists, and may have continuing value, precisely because it has become so domesticated. (3) There are solid historical and economic grounds for some form of freedom of the church or religious institutional autonomy. In particular, religion's status as a credence good, whose value and reliability is certified by religious agents such as ministers, strongly suggests that state interference with religious employment relations can be dangerous to a church's well-being and long-term survival. (4) The history and economics of religion also teach us something about the optimal conditions for freedom of the church--the conditions under which it is likely to do the most good and the least harm. In particular, they suggest that champions of freedom of the church ought to welcome religious pluralism and a strong non-establishment regime. 

The Article closes with some speculation about why there has been a recent revival of interest in freedom of the church, including the possibility that its resurgence, even if it is fully justified, also involves an element of rent-seeking by religious institutions. 

There are two broader underlying suggestions as well. First, there are good reasons to support some version of freedom of the church, but it deserves a more critical and nuanced examination by friends and adversaries alike. Second, legal scholars writing on church-state issues have paid far too little attention to the literature on the economics of religion.

My quick-reaction to the Gosnell verdict

Here's the instapunditry I did for National Review Online yesterday:

It is a good thing that the Philadelphia jury convicted Kermit Gosnell of
murder, because it is in fact clear that he committed murder. For the jury to
have done otherwise, given the graphic, detailed, and not-meaningfully-contested evidence, would have been a gross and depressing injustice. It would have delivered a huge blow to the rule of law in the City of Brotherly Love if the
members of the jury had allowed themselves to be distracted or confused by
Gosnell’s lawyers’ overheated attempts at obfuscation, by baseless charges of
“racism” and “elitism,” or by a distortionary dedication to an extreme version
of the pro-abortion cause.

It will be tempting to “move on.” But the temptation should be
resisted. Gosnell did horrible things to women and still-living babies, and
laughed about it, and it would be comforting to many of us if he were a Hannibal
Lecter–type aberration. And, of course, in many ways, he is. Yet his ability to
reduce unborn and “unwanted” children to objects, whose pain and death were
material for jokes, differs more in degree than in kind from the dignity-denying
premises underlying our abortion laws generally. We should take more time to
think, and worry about, this fact.

"Political Theology for a Plural Age"

This collection, edited by Michael Jon Kessler, looks really interesting.  My friend, colleague, and neighbor Patrick Deneen has an essay in it called "The Great Combination: Modern Political Thought and the Collapse of the Two Cities."   Here's the blurb:

New challenges that emerged in the postwar era have given rise to ongoing debate about the place of religion in public life, in the United States and in other established democracies, and this debate has dramatically reshaped the way scholars, policymakers, and religious leaders think about political theology.
Political Theology for a Plural Age examines historic and contemporary
understandings of political engagement in Christianity, Judaism, and Islam,
engaging political theologies not merely as a set of theoretical concepts but as
religious beliefs and principles that motivate specific political action. The
essays in this volume, written by leading thinkers and practitioners within each
tradition and their secular counterparts, examine a number of core issues at the
intersection of religion and politics. They contest the definition of political
theology, establish a common discourse across the three Abrahamic traditions,
and closely examine how globalization, secularization, and pluralism affect the
construction and plausibility of political theologies. Finally, they offer
insight into how political theologies might adapt to the shared global
challenges of the twenty-first century.

"I am not this body."

The other day, the New York Times featured a really interesting piece -- one that is also strikingly written -- by Brian Jay Stanley, called "I am Not This Body."  An early paragraph goes like this:

I do not identify with my body. Ihave a body but I am a mind. My body and I have an intimate but awkward relationship, like foreign roommates who share a bedroom but not a language. As the thinker of the pair, I contemplate my body with curiosity, as a scientist might observe a primitive species. My mind is a solitary wanderer in this universe of bodies.

I'm not an expert, and these are really heavy questions, but I think the Catholic proposal is that we think about this differently.  It seems to me that it is essential -- "literally" essential -- that we human persons are embodied.  (We are, as Alasdair MacIntyre puts it, "dependent" and "rational" animals -- at least part of this "dependence" stems precisely from the fact that we are embodied.)

To be embodied is not to be just a body, of course -- but it is probably just as important to reject any kind of "ghost in the machine" dualism, which imagines the "real" person as a soul or spirit who simply lives in or employs as an object a body.  I would not be me without (sigh) this body (though I wouldn't mind a more fit version of it). 

At the end of the piece, the author seems to have moved from the insistence, that "I have a body, but I am a mind," to what struck me as a resigned reductionism, to the naturalistic (I think) error of claiming that particles and force are all there really is: 

I recall the sense of eeriness I felt several years ago when learning computer science, the eeriness of discovering the lifeless corridors of binary digits and microprocessors beneath the monitor’s meaningful display. The facade of humanized banners, buttons and icons on our screens masks an unstaffed control center of electrical switches, clicking on and off, their changing patterns of charges translating miraculously but mindlessly into the streaming wonders of words and colors we perceive.

So, too, pry behind the rich graphics flashing across the screen of being—the self-organizing of galaxies, the coordination of ecosystems, and the complexity of biological life—and you arrive at the imbecilic machinery of it all, electrons flowing through the circuit boards of the stars, motors whirring on the hard drives of our bodies. Beneath the intelligible there is only the unintelligent, a blank stare behind beautiful eyes, muteness behind the music.

I'm confident that there's more behind the music but . . . this is worth a read.

UPDATE:  I was informed by a friend and MOJ reader that the theme for this year's Fall Conference, sponsored by the Notre Dame Center for Ethics and Culture, is "Fearfully and Wonderfully Made:  The Body and Human Identity."  The Call for Papers, and more on the conference, is here.  And, the site features this really nice quote, by Gil Meilaender (who has written a lot on these matters):

 [W]e know a person only in his or her embodied presence. In and through that body the person is a living whole. For certain purposes, we may try to “reduce” the embodied person simply to a collection of parts, thinking of the person (from below) simply as the sum total of these parts. But we do not know, interact with, or love others understood in that way; on the contrary, we know them (from above) as a unity that is more than just the sum of their parts.- Gilbert Meilaender, “The Gifts of the Body”

Reno and Miller on capitalism and conservatism

The exchange at First Things between Rusty Reno and Robert Miller is well worth reading.   (Here's Rusty's opener, here's Robert's response, and here's Rusty's reply.)  Taken together, I think they shed a lot more light than do the typical "Randian!" and "Socialist!" accusations that fly around conversations about economic policy, including conversations among Catholics who embrace the Church's moral anthropology and social teachings.  My own sense is that Reno is right to remind us that the mis-use of "economic freedom" can lead to bad results.  But, that's true of freedom generally, and it's not an argument against economic freedom so much as a fact about the world, this side of Heaven, that should be taken into account when designing institutions and policies that, in appropriate instances, constrain that freedom.  

Now, Reno says that "conservatives" often don't see this -- that is, they don't see that economic freedom "creates problems."  That's not my experience, for the most part.  (More common, in my experience, are "liberals" who don't appreciate the real costs of misplaced regulations.)  [Update:  It was pointed out by a friend and correspondent that this kind of "tu quoque" is both distracting and a bad habit of mine.  It is both of these things.  To be clear, though, I didn't mean to suggest that the former mistake is somehow excused by the latter.]  But, in any event, it is clear that various problems are inevitable by-products of economic freedom and so a challenge for a decent political community is to try to solve those problems.  

Miller's essay, I think, does a lot of good things, but what I most appreciate is what I would have thought is his pretty modest point that (paraphrasing) "to attack those who oppose all regulation and believe in unregulated 'laissez faire' capitalism is to attack a straw man.  Such attacks should not -- especially in the name of the Church's social teaching -- be made and, instead, we should focus on pushing 'conservatives' to embrace those regulations and policies that enhance the opportunity for genuine flourishing, and respond to the real costs of free markets, and on pushing 'liberals' to realize that government regulations do not justify themselves and that, in some cases, they can do more harm than good."  I think this is actually where most people are -- few are "Randians" (even if they are attracted to some libertarian themes and ideas) and few (in America, anyway) are real collectivists (even if they are attracted to some redistributionist or communitarian themes and ideas).   

Religious-freedom protections and marriage legislation in Delaware

A number of law professors (including Tom Berg and I) submitted the other day this letter (Download Delaware letter) to legislators in Delaware, urging them "to ensure that any bill legalizing same sex marriage does not infringe the religious liberty of organizations and individuals who have a traditional view of marriage." This letter is similar to the ones -- which have been posted here at MOJ before -- that the group has submitted in several other states.  The letter is basically consistent with the arguments and proposals contained in this recent article, "The Calculus of Accommodation," by Prof. Robin Fretwell Wilson, which I think is very well done.

"A Priest Walks into a Bar . . ."

The current issue of Imbibe:  Liquid Culture has this profile (Download Fr. Bill) of my friend and Notre Dame colleague (and Columbia Law School grad) Fr. Bill Dailey -- the "honorary chaplain of the D.C. Craft Bartenders Guild" -- which includes his reflections on the very Catholic (and boozy) ideas of fellowship, ritual, and hospitality.  Mix up an Old Fashioned, and take a look.

On proselytism, evangelization, and the First Amendment

One of the issues raised in the various posts by Bob Hockett, Michael Scaperlanda, Patrick Brennan, and MOJ-friend Paul Horwitz is the challenge of defining "proselytism."  The word (like "discrimination", perhaps) has acquired a connotation of "persuasion, advocacy, or communication of an aggressive, underhanded, intolerant, insulting, or disrespectful kind."  Of course, it need not be involve any of those adjectives.  A few years ago -- as part of a very enjoyable lecture series organized by Patrick -- I did a paper called "Changing Minds:  Proselytism, Religious Freedom, and the First Amendment," in which I tried to underscore the fact that "proselytization," correctly understood, should not and need not involve any unworthy tactics or dignity-denying premises, but can and should be understood as an invitation -- and invitation to "come over," and to change not only one's mind, but one's view and way of life.  Here's a bit from the abstract:

Running through and shaping our First Amendment doctrines, precedents, and
values is a solicitude for changing minds - our own, as well as others'. Put
differently, the Amendment is understood as protecting and celebrating not just
expression but persuasion - or, if you like, proselytism. There are, therefore,
reasons grounded in our Constitution and traditions for regarding proselytism
and its legal protection not as threats to the common good and the freedom of
conscience, but instead as integral to the flourishing and good exercise of that
freedom. This same solicitude for persuasion and freedom pervades the writing of Pope John Paul II, who regularly insisted that the Church's evangelical mission
does not restrict freedom but rather promotes it. The Church proposes - thereby
inviting the exercise of human freedom - she imposes nothing. The claim here,
then, is that proposing, persuading, proselytizing, and evangelizing are at the
heart of, and need not undermine, not only the freedoms protected by the
Constitution, but also those that are inherent in our dignity as human persons.

With respect to the recent and ongoing argument here at MOJ about "Mikey" Weinstein and the DoD, it seems to me that -- putting aside what I regard as the facts that Weinstein is a hateful bigot who should no more be a part of even merely symbolic consultation with our government than should Fred Phelps and that it is entirely appropriate, on this site or any other, to express concern about such consultation -- it seems to me really important that any regulations and policies designed to (quite appropriately) protect our men and women in the service from abuses of superiors' authority (whether those abuses involve unwanted and aggressive religious messages, or take any other form) not reflect a premise or presumption that the content of traditional religious teachings and practices is substantively objectionable and therefore not-to-be-discussed-or-advocated in the armed services and also not reflect a premise or presumption that evangelism itself -- the invitation to "come over" -- (as opposed to abusive instances of it) is objectionable, even among members of the service.