Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Saturday, April 30, 2016

China seeks to "tighten grip" on religion

Of course it does.  Religious faith -- and religious authority -- are inconvenient and threatening to statist and anti-human dictatorships.  This bit probably isn't intended by the PRC to be funny:

China has taken an assertive tone with Tibetan Buddhism, too, emphasizing that Beijing holds authority over the reincarnation of the Dalai Lama. In November, Zhu Weiqun, a top ethnic and religious-affairs leader, wrote that having political control over reincarnation constitutes “an important manifestation of the Chinese central government’s sovereignty over Tibet.”

April 30, 2016 in Garnett, Rick | Permalink

Congratulations -- and thank you! -- to Richard Doerflinger

Mark Zimmerman reports, here, that Richard Doerflinger, "the U.S. bishops’ legislative point man for pro-life issues for nearly four decades," is retiring.  "Everything old is new again," he commented recently.  Here's a bit:

Doerflinger sees many signs of hope for the pro-life movement, including the personal witness of Pope Francis. “He’s doing something very important, getting back to the core message of God’s love and mercy. It’s in that context all these issues have to be placed,” he said.

The pro-life advocate also is inspired by “the crowds of young people we see every year at the Vigil Mass and March for Life. We have very enthusiastic young Catholics who understand these issues and are ready to take the lead on them.” . . .

I had the privilege of teaching one of Mr. Doerflinger's children at Notre Dame Law School and was able to meet him a time or two.  Like the article says, he was, and is, a "pro-life giant."  Well done, faithful servant.

April 30, 2016 in Garnett, Rick | Permalink

Thursday, April 28, 2016

The NCAA and Religious Colleges and Universities (UPDATED)

It's a longstanding piety -- at least since the Land O'Lakes statement -- among many in Catholic higher education specifically that Catholic universities should not be beholden to or bound by "external" authorities -- meaning, usually, ecclesiastical authorities.  But, of course Catholic universities are tightly constrained by and seem more than willing to be constrained by a wide range of "external" authorities, including accrediting and licensing bodies, government conditions on funding and contracts, grantmaking bodies, and -- of course -- the NCAA.  

As this USA Today story describes,  things are moving rapidly toward a confrontation between religious institutions' rules and expectations regarding sexual morality, on the one hand, and the expanding understanding on the part of the NCAA (and corporate sponsors of athletics) of the non-discrimination norm.  Here is just a bit:

The Education Department said in 2014 that transgender students are protected by Title IX. Since, dozens of religious schools — mostly smaller and lesser known, and none of the schools mentioned in this story — have asked for waivers that allow them to deny admittance to transgender students. And that has turned into a flashpoint for the NCAA.

Recently more than 80 LGBT organizations wrote a letter to the NCAA urging it to divest membership of religiously affiliated schools that ask for such waivers. “These requests,” the letter said, “are directly in conflict with the NCAA’s longstanding commitment to diversity and inclusion for all people regardless of sexual orientation and gender identity.”

. . . 

Schulz, chair of the NCAA board of governors, expressed willingness to take up the issue.

“I really liken it to some of the issues in the deep South for African American student-athletes going back to the 1960s,” he says. “We can look back now and say, ‘I can’t believe these teams weren’t playing each other because they had African-American basketball players.’ We can look back now and say, ‘That is unfathomable.’

“I’m not so sure that we wouldn’t look back in 20 or 30 years and say the same thing about some of our LGBT athletes. … We need to talk about it, but at the same time the NCAA has a powerful bully pulpit. And if we talk about inclusivity, I think it’s important that we take a stand on these social issues.”

In my view (as I've written here and here) it is usually a mistake to think that the non-discrimination norm, appropriately understood, requires governments (or, I am inclined to say, bodies like the NCAA) to punish, regulate, or even discourage religious institutions from adopting policies that reflect and promote their religious mission, even with those policies are not congruent with the rules that control the liberal state itself.  The NCAA should allow, say, BYU or Baylor to be themselves.  (I do not agree that policies reflecting traditional religious teachings on sexual morality are usefully compared to race discrimination.)  But, I am not optimistic either that the NCAA et al. will stay their hand or that religious universities with major sports programs will resist.  We'll see. . .. 

UPDATE: . . . and we are seeing ("NCAA Will Not Host Final Four in Anti-LGBT States").  

April 28, 2016 in Garnett, Rick | Permalink

Monday, April 25, 2016

NOMOS LVI ("American Conservatism") is (finally) out

NOMOS is "the annual yearbook of the American Society for Legal and Political Philosophy."  Volume LVI, on the theme of "American Conservatism" is now out . . . about nine-and-a-half years after the papers it contains were presented.  Get your copy here!  My own contribution, "The Worms and the Octopus:  Religious Freedom, Pluralism, and Conservatism," is included.  Here is the abstract:

A formidable challenge for an academic lawyer hoping to productively engage and intelligently assess “American Conservative Thought and Politics” is answering the question, “what, exactly, are we talking about?” The question is difficult, the subject is elusive. “American conservatism” has always been protean, liquid, and variegated – more a loosely connected or casually congregating group of conservatisms than a cohesive and coherent worldview or program. There has always been a variety of conservatives and conservatisms – a great many shifting combinations of nationalism and localism, piety and rationalism, energetic entrepreneurism and romanticization of the rural, skepticism and crusading idealism, elitism and populism – in American culture, politics, and law.

That said, no one would doubt the impeccably conservative bona fides of grumbling about the French Revolution and about 1789, “the birth year of modern life.” What Russell Kirk called “[c]onscious conservatism, in the modern sense” first arrived on the scene with Burke’s Reflections on the Revolution in France, and at least its Anglo-American varieties have long been pervasively shaped by his reaction. As John Courtney Murray put it, Burke’s targets included those “French enthusiasts” who tolerated “no autonomous social forms intermediate between the individual and the state” and who aimed to “destroy[]…all self-governing intermediate social forms with particular ends.” I suggest, then, that to be “conservative” is at least and among other things to join Burke in rejecting Rousseau’s assertions that “a democratic society should be one in which absolutely nothing stands between man and the state” and that non-state authorities and associations should be proscribed. In other words, to be “conservative” is to take up the cause of Hobbes’s “worms in the entrails” and to resist the reach of Kuyper’s “octopus.” At or near the heart of anything called “conservatism” should be an appreciation and respect for the place and role of non-state authorities in promoting both the common good and the flourishing of persons and a commitment to religious freedom for individuals and institutions alike, secured in part through constitutional limits on the powers of political authorities. Accordingly, one appropriate way for an academic lawyer to engage “American Conservative Thought and Politics” is to investigate and discuss the extent to which these apparently necessary features or elements of conservatism are present in American public law. Pluralism and religion, in other words, are topics that should provide extensive access to this volume’s subject.

Thanks to the dedication of Sandy Levinson, Joel Parker, and Melissa Williams for bringing this long project to completion!

April 25, 2016 in Garnett, Rick | Permalink | Comments (0)

Friday, April 22, 2016

Are the "barricades of the culture wars . . . collapsing"?

In this piece, commenting on (among other things) the awarding of this year's Laetare Medal to Vice-President Biden and Speaker Boehner, my former Notre Dame colleague Cathy Kaveny writes:

What has changed in the past seven years? We now have widespread recognition that the barricades of the culture wars are collapsing upon us. No war—even a culture war—can become an indefinite and customary state of affairs without disastrous consequences. We can only recover by learning how to work together again—despite our deep differences—and learning to see the good in one another. 

There is, to be sure, a lot to regret about the reality of the "culture wars" and the way they've distorted politics and harmed discourse -- among those things, in my view, is the common but unhelpful practice of labeling those with whom one disagrees politically as "culture warriors" -- although it seems to me that regret will not change the reality.  It is simply the case -- and it does not make one a "culture warrior" who is "obsessed" to notice it -- that there are determined, well-funded, and increasingly powerful institutions, actors, and forces at work in the culture, in politics, in the law, and in the academy (for example) that oppose strongly the moral vision, commitments, and witness of the Catholic Church and that are doing what they can -- and they can do a lot -- to marginalize the Church, her teachings, and her institutions in public life.  

I'm not entirely sure what Cathy means with her statement that "the barricades of the culture wars are collapsing upon us," but if she means that the institutions, actors, and forces I just mentioned are winning -- are overrunning the defensive "barricades" -- then I certainly agree.  They are not giving up or seeking a truce or peace, and there's no reason to think that they plan on finding ways to work together across deep differences.  Like Cathy, I think, I would very much prefer a politics that involved sincere and civil efforts to find common ground where it exists, to take half-a-loaf over nothing, to welcome incremental improvements and not insist on revolutions or routs, that didn't involve boycott threats and "bigotry" charges, etc.  I agree entirely with Cathy that politics is the art of the possible, that those who embrace the Church's social and moral teachings -- in their entirety -- have no choice but to not let the perfect be the enemy of the good, and that more "balance," compromise, and charity are needed in our politics.  I agree that it is "counterproductive" to insist on unattainable policy goals (though I think we cannot mute -- and Pope Francis is not telling us to mute -- our truth-telling about the injustice of our abortion regime).

At the same time:  it's a mistake to imagine that we can wish or good-will away the ongoing campaign against the Church's witness, work, and freedom.  This campaign is, again, a reality.  It has very real implications for, and poses non-imaginary threats to, our hospitals, universities, schools, social-welfare agencies, and social-justice activism.  It involves, first, conditions on funding, tax-exempt status, accreditation, and licensing, but it will not stop with conditions that we will be able, in theory, to take or leave.  By all means, let's work (and pray) for a better politics.  Let's be realistic, pragmatic, and -- perhaps -- resigned to certain new realities.  Let's also keep our eyes open.

April 22, 2016 in Garnett, Rick | Permalink

Monday, April 18, 2016

Great news: Notre Dame scraps plans for "liberal arts college" collaboration with China

The story is here.  For almost two years now, I've been very nervously awaiting the outcome of the decision-making process regarding the proposal to set up a "liberal arts college" in cooperation with the government in the PRC.  From the start, I thought (and said) that the proposal was not an attractive or defensible one, that it would involve close collaboration in real violations of academic freedom and human rights, and that it would compromise not only the University's integrity as a Catholic institution but as a university dedicated in a particular way to the liberal arts and the pursuit of truth through open inquiry.  In any event, the outcome and news are good.

Pray for the suffering Church in China.

April 18, 2016 in Garnett, Rick | Permalink

Notre Dame legend, Prof. David Solomon, to retire

Prof. David Solomon -- a longtime professor of philosophy at Notre Dame -- is retiring at the end of this semester.  (Here's a very nice tribute to him that appeared the other day in the campus newspaper.)  It's impossible to overstate the importance of Prof. Solomon's contributions not only to the formation and education of thousands of Notre Dame students but also to the University's Catholic character and mission.  Among other things, Prof. Solomon was the founding director of the Notre Dame Center for Ethics & Culture, which has been for nearly 20 years a center of vibrant inquiry and engagement on issues ranging from bioethics to J.R.R. Tolkien.  The Center's annual Fall Conference is, for many of us, among the highlights of the academic year.  

When I first came to Notre Dame, in 1999, I met Prof. Solomon through a mutual friend and colleague and, pretty quickly, my daily ritual included a bagel and coffee with David and a few others at Lula's, South Bend's initial effort at a campus-y coffee shop.  My first daughter spent a lot of time, as a baby, crawling around under the tables there and wiping crumbs on Prof. Solomon.  He welcomed and inculturated my wife and me into the University community and his love for and dedication to the place were inspiring and infectious.  It's very hard to imagine life at the University without him, his wit, and his generosity.  If you care about Catholic higher education -- and all MOJ readers should -- then you have good reasons to be grateful to David Solomon.  

UPDATE: This tribute by Fr. Bill Miscamble is excellent.  A bit:

David has loved being a teacher and a philosopher and his labors have allowed him to seek the good and to touch the lives of many students. Of course, as a philosopher he has emphasized the role of the intellect, but this has never been done by him at the expense of the heart. No doubt over time he has come to appreciate ever more deeply and in the manner of St. Thomas that love must have the final word, for only love can truly complete the intellect’s knowledge. He has given of himself for his students, his colleagues, and his friends and Notre Dame is a much better place because of him.

April 18, 2016 in Garnett, Rick | Permalink

Sunday, April 17, 2016

"Conversations" with Kristol . . . and Robert George (on history, Unger, Hegel, etc.)

I really enjoy Bill Kristol's "Conversations" podcasts.  Some of my favorites (I listen when "running") have been with Mitch Daniels, Justice Alito, and Leon & Amy Kass.  And now, there's the latest, which features our own Robby George.  It's really good.  Check it out.

Here's a bit, from the transcript, on "history":

GEORGE: It’s a tough challenge, but things always seem impossible until people do them. We are still, even those of us who are conservatives, to some extent in the grip of the Hegelian-Marxist idea that there are laws of history and society that generate outcomes quite independently of what individual actors or people organize together do. Now, that’s a really stupid view.

KRISTOL: Somehow deep in the modern world. Progress goes in one direction, more or less.

GEORGE: Just think of how much traction folks on the Left get out of accusing their adversaries of being on the wrong side of history. Many of their adversaries are actually concerned about that. They’re worried about being on the wrong side of history, as if history were endowed with the powers of judgment with God to determine what’s right and what’s wrong, separate the sheep from the goats on the last day, so to say. But of course, history – this is why I say it’s stupid – history is an impersonal sequence of events. It has no power to judge than a rock outcropping or a golden calf. It’s just literally an idol.

KRISTOL: It’s a powerful idol. Bill Buckley doesn’t get enough credit for standing athwart history. That was a very important thing just to say. He didn’t believe history had a movement either, I don’t think. But he thought it was important to show people that a young, well-educated, intelligent, fun-loving person could say no. You know, one forgets just in the mid-50s how bold that was, I think, and how much people did believe in a sort of decayed version of Hegelian-Marxist history with a capital H.

GEORGE: We’re still in its grip today. Can I say one more word about that, Bill, before you move on? You’ll probably find it surprising that I was not taught this view, but strongly reinforced in this view when I was a student at Harvard Law School by a leftwing professor. It was actually Roberto Unger who strengthened my belief in the radical contingency of history and my skepticism about the Hegelian-Marxist idea of a progressive history because although he was on the Left, he was a radical anti-Marxist when it came to the idea of laws of history and society. Radically skeptical about them, as well he should be. And you know, I don’t agree with various other aspects of his thought – on this, I think he was absolutely right – but he was a very strong influence on me.

KRISTOL: That’s interesting. I remember he was such a prominent – considered far on the Left in a way. Radical Left, as you say. More radical than Marxist almost.

GEORGE: And some people both on the Left and the Right just regarded him as a very sophisticated Marxist. When he himself said, “No, I’m not that. You’ve misunderstood me,” people were puzzled.

There was an exchange he had in the University of Minnesota Law Review years ago after his first book was published, Knowledge and Politics, when Tony Kronman who later became a very prominent law professor, Dean of Yale Law School. Tony Kronman in a review of Knowledge and Politics just identified Unger as a sophisticated sort of Frankfurt School Marxist. Unger wrote back in saying, “No, you’ve completely misunderstood me.” Kronman couldn’t understand, and Unger said, “The thing that you most misunderstood me about is I can’t be a Marxist because I do not believe in a dialectic of history. I don’t believe in the inevitability of anything. I believe in the radical contingency of history. That idea is much more comfortably categorized as a Catholic idea.” Unger himself was not a believer. But he said, “That’s much more easily categorized as, say, a Catholic idea than as a Marxist idea.”

April 17, 2016 in Garnett, Rick | Permalink

Wednesday, April 13, 2016

McConnell on the Religious Non-Profits' (and Administrations) supplemental arguments

Mark Silk says that the religious non-profits "caved" in the contraception-coverage-mandate litigation.  I think he's quite wrong.  As Michael McConnell shows, here, the matter is far more complicated.  And, the latest round -- far from showing that the Little Sisters et al. were overreaching (or, as some persist in mistakenly insisting, distracted or pulled off course by their lawyers).  Conclusion:

On a highly polarized issue, the Supreme Court deserves credit for seeking a solution that protects the rights of religious parties under RFRA while still accomplishing the government’s goal of free access to contraception. The Little Sisters have always said they simply want to be left alone to carry out their good works without violating their religious beliefs. Their supplemental brief proves the point, showing that there is no inherent conflict between their religious beliefs and the government’s goals. The government’s brief seems to acknowledge the handwriting on the wall. Because it can use a less restrictive means to accomplish its interests, it must.

April 13, 2016 in Garnett, Rick | Permalink

Quick Takes on "Amoris Laetitia"

Like (I strongly suspect) the vast majority of commentators who have commented publicly on the new apostolic exhortation, I have not read Amoris Laetitia carefully and in its entirety.   I've read a fair bit of commentary, though . . . which reminds me of one of my favorite bits from the (wonderful) film, Metropolitan:

Audrey Rouget: What Jane Austen novels have you read?

Tom Townsend: None. I don't read novels. I prefer good literary criticism. That way you get both the novelists' ideas as well as the critics' thinking. With fiction I can never forget that none of it really happened, that it's all just made up by the author.

Anyway, three "quick takes":

First, the document is too long.  It just is.  (Another film reference . . . "too many notes.")  It's length makes it less likely that it will have the pastoral and evangelical effects that I believe the Holy Father wants it to have.  Few lay people will read the whole thing and -- I strongly suspect -- not even all conscientious, well-meaning, pastorally-minded priests will read the whole thing, either.  This means that the document's "message" will, unfortunately, be in no small part a function of spinners and quote-hunters, whose goals in spinning and quote-hunting might not be the same as Pope Francis's.  

Second, as I've noted on some other occasions, regarding the reactions among commentators to Pope Francis's statements and writings, I'm seeing -- and, to be clear, it might not be a representative sample -- a disappointing amount of "this document is great because it's making those I disagree with politically and in the Church uncomfortable and angry."  I understand, entirely, the appeal of schadenfreude but if one's analysis, evaluation, and reception of the document are simply a function of that emotion, then it could well be that it is one, and not one's opponents, who doesn't "get" Pope Francis.  

Third, and more substantively.  I share the concern -- and not, I feel confident, because my "heart" is particularly "hard" on these matters -- that the document is making so much (again, in the limited parts I've read) of the importance of not letting "rules" get in the way of mercy, accompaniment, invitation, evangelization, etc., that it will be read as suggesting that the truths and goods that the Church's "rules" reflect and serve are themselves the obstructions and stumbling blocks.  It is, for example, the Truth about the Eucharist, and not only a rule about receiving it, that is implicated in debates about whether those who are in second civil marriages may receive it.  (To say this is not to be the "pharisee," nor is it to disagree with the Holy Father that the Eucharist “is not a prize for the perfect, but a powerful medicine and nourishment for the weak.")

One more thing:  As someone who hates "Valentine's Day" (as it is celebrated in the United States), I wish the Holy Father had given it a big, fat anathema.

April 13, 2016 in Garnett, Rick | Permalink