Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

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Tuesday, January 13, 2015

The March for Life . . . and the University of Notre Dame

I am so proud and pleased that a contingent of 690 (!) students, faculty, and staff from Notre Dame will be travelling to bear witness at the annual March for Life in Washington, D.C.  (More here.)  "What Would You Fight For?", indeed.  Go Irish.


January 13, 2015 in Garnett, Rick | Permalink

Monday, January 12, 2015

Law and Morality Revisited


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.


RJA sj

January 12, 2015 in Araujo, Robert | Permalink

Walter Berns, RIP

The noted political philosopher and constitutional scholar Walter Berns died on Saturday at the age of 95. Berns wrote widely and perceptively about many issues, including and especially the First Amendment starting with his 1957 book Freedom, Virtue and the First Amendment. His writing on the religion clauses in his 1976 collection The First Amendment and the Future of American Democracy broadly (and presciently for the time) argued for a relaxed view of government aid to religion under the Establishment Clause and a no-right-of-exemption view of the Free Exercise Clause (he was quite critical of Wisconsin v. Yoder, for example). Indeed, in some ways Berns was an intellectual father of Employment Division v. Smith.

Berns's view that freedom of speech is at the service of cultivating a virtuous citizenry (and thus that cases such as Cohen v. California are wrongly decided) is widely rejected now, though one encounters a vestige of it in Justice Alito's dissents in Snyder v. Phelps and United States v. Stevens. Even those of us who agree with the now-dominant libertarian approach to freedom of speech, however, should appreciate the concerns that motivated Berns:

Morality cannot be legislated, we are told and have reason to believe, but the law can lend support to the moral dispositions of a people. Tocqueville had this in mind when he warned that the religion which had "struck its roots deep into a democracy" must be preserved, watched carefully "as the most precious bequest of aristocratic ages." The principle can be generalized to apply to all those decent habits that are required for self-government. Liberal democracies especially are limited with respect to the means they may properly adopt to generate these habits or moral dispositions, and it is therefore especially important that ours preserve those with which it began. The Supreme Court has not appreciated the role that law must necessarily play in this project. The First Amendment and the Future of American Democracy (1976), p. 228.

On a personal note, when I worked in Washington I lived in Chevy Chase not far from Berns, and I would frequently encounter him on the Metro red line after we had initially met at an AEI event on his book Making Patriots. We would talk about Iowa (he received his undergraduate degree from the University of Iowa), politics, and Supreme Court cases. He was a lively conversationalist and a grand public intellectual. Requiescat in pace.

January 12, 2015 in Moreland, Michael | Permalink

The Ideological Fragmentation of Public Law

I am recently back from the annual AALS meeting, during which I attended some of the offerings of the annual "shadow" Federalist Society Conference as well. Both meetings had several worthwhile programs. One of the most interesting features of both conferences was the extent to which political and ideological fragmentation has become more ordinary and prevalent in public law disciplines. I found this to be quite comforting. In this post, I want to explain why, and to describe some of what I saw at the two conferences in this respect. But first, some thoughts on law and religion as a discipline today.

For some time now, I have believed that the political and ideological divides among legal academics in the law and religion field have been growing. They have now reached cavernous dimensions. Paul Horwitz argues in this (superb) piece that law and religion scholars have been in a state of general consensus about free exercise/accommodation issues until extremely recently, but I see things a little differently. The disagreements about free exercise have been manifest at least since I have been studying and writing in the area--about a decade now and probably longer than that. But Paul is right that they have increased dramatically even within that period.

Paul is also right that there was a period of such consensus. But it was a much earlier time. It was the period when, for example, giants including Kent Greenawalt and Doug Laycock and Vince Blasi and Jesse Choper came of scholarly age, the period when Leo Pfeffer’s views were dominant in this area, and only a few outliers arguing for non-preferentialism like James O’Neill existed. One could be a liberal nel vecchio stile and with great complaisance in those days, but still support exotic religions (traditional Christian religions were never really on the agenda), confident in the view that the "great minds” of the past—Jefferson and Madison (Marshall, Adams, and so many others were rarely mentioned)—were on board in spirit. One bought one’s bona fides to argue for relatively expansive free exercise protections (it was the ‘60s and ‘70s, and people should be free to follow their stars and make themselves into whatever they wanted) with iron separationism when it came to establishment. But the bottom line was that one’s Establishment Clause views always drove the boat then, as, it seems to me, they do now. Free exercise in that period was an afterthought—a concession to the unusual and the strange. Sort of like the way many discuss the nature of excuses in criminal law. One is excused for one’s conduct because, notwithstanding its wrongfulness, one makes a concession to human weakness by allowing that one is not blameworthy for that conduct. That’s how religion was perceived—as basically somewhere between odd and wrongful, but not culpable, and therefore excusable conduct which should be accommodated where possible for those in need of such ministrations.  

That period is dead. It has been dead since long before Paul or I started writing about these matters. For those who followed in the wake of the liberal consensus, what happened was—again, beginning from an ever-hardening view of what the Establishment Clause demanded—the end of the ‘60s and ‘70s with its taste for exoticism and weird pluralism. In its place arrived a new zest for notions of equality, nondiscrimination, leveling, and so on. To argue for "pluralism" full stop and for its own sake today is something of an anachronism (this comes through nicely in the column Paul reacts to today by Frank Bruni). Exactly what is there of worth about pluralism as an intrinsic good? In the interim from then to now, sexual equalities of various sorts have gone mainstream (they were not so when the earlier consensus reigned; at least one liberal law and religion scholar of the ancien regime only began to support gay marriage in the last decade or so). Equalities of other kinds have taken center stage.

The illusion of consensus could be maintained, for a time at least, but only until the new egalitarian mandarins were challenged. Those challenges have come in the abortion context and other substantive due process areas. With some exceptions, the challenges have largely failed. But they had never come from the religion clauses proper (or their statutory analogues). Now they have. And they have made manifest the instability of the former consensus and the fact of its breakdown over many years. To invoke religious freedom is no longer to appeal to a commonly recognized constitutional freedom; it is to whistle to your favorite mangy dog.

The consequence today is that increasingly, law and religion scholars share far less common ground than they did 40 years ago. Outside their own political/ideological constituency, they have much more work to do to convince one another of their arguments. Indeed, the fact that some scholars squarely within the liberal consensus are now felt to be raving right-wingers is itself a marker of the fragmentation and polarization of the legal academy. Doug Laycock may be many wonderful and admirable things; but conservative is not one of them. These movements within (and also outside) the legal academy sometimes--perhaps oftentimes—make it feel like legal scholars have less and less to say to one another. On occasion, I have felt this to be an unfortunate feature of law and religion scholarship--exhausting and depressing. More work feels political; less work feels scholarly; and so it goes. One begins to long for other sorts of work.

But the panels that I attended last week at the AALS and Federalist Society Conferences began to persuade me of two things. First, ideological fracture is a more general development in public law in the legal academy. Second, that fracture--and all that it brings--has positive as well as negative features.

On the first issue, on subjects ranging from administrative law to statutory interpretation to executive non-enforcement of the law, and even to the closer-to-home issue of public reason and religious expression, the ideological divides among legal academics are enormous. The panel on administrative law I attended ran the gamut from those supremely invested in the administrative law machine to those supremely invested in destroying it. I don’t know enough about the sociology of administrative law scholarship, but it would surprise me if administrative law panels of the distant past would have represented such a gigantic diversity of views. The tenor of the discussion was less in the nature of a conversation and more about what is ‘mainstream’ scholarship, and why it might be mainstream, with associated commentary about who on the panel could or could not be confirmable to the United States Supreme Court (which is not to say that the discussion was not civil…it certainly was). 

As for statutory interpretation, the superb lunchtime debate on the new statutory challenge to Obamacare persuaded me that King v. Burwell may do to the study of statutory interpretation what Hobby Lobby v. Burwell did to the study of religious accommodation. Textualism and intentionalism are taking on more and more distinctively partisan flavoring, and this will almost certainly reach a sort of climax if textualism takes down the PPACA (footnote: this is a little odd, of course, for those intentionalists out there who don’t toe the progressive political party line, but it worried some statutory interpretation people I know nonetheless).

Perhaps my favorite example concerned a point made by some of the panelists concerning executive non-enforcement of the law: the political valence of non-enforcement, they claimed, seemed a more natural fit for conservative than progressive politics. I’m not sure that is true, though I suppose it might be true if one substitutes “libertarian” for “conservative.” But the explicitly political register in which the subject was being debated drove the point home again. Public law is deeply riven ideologically.

A final example. The AALS sections on Jewish and Muslim law co-sponsored a session on religious reasons in political decisionmaking—that old chestnut, religion in the public square. What was striking to me was that the panel was composed of folks who discussed the perspectives of particular religious traditions on the subject. Jewish, Muslim, and Catholic perspectives, together with a Rawlsian perspective. If you went back 20-30 years ago, and attended an AALS panel on religion in the public square, would you see this composition? Almost certainly not. You would instead see a panel of scholars conversant in, if not wedded to, Rawls’s view of the matter. You would see a panel of philosophers or philosophically inclined scholars discussing the nuances of “public reason.” Of course, you still see such panels in many places. But the fact that this AALS panel was not so constituted—the fact that it was instead constituted by a broad array of very diverse political and religious perspectives—was quite an interesting development.

I have already suggested why the ideological fracture of public law might be a bad thing. There is simply less common ground between members of the academy; discussion is more exhausting; everything feels more political; more feels less scholarly.

But there are advantages too. For one thing, it is almost certainly true that there is simply a broader range of perspectives in public law at this moment than there was 30 or 50 years ago. Breadth of perspective might or might not be a good thing, but I tend to think that if the reasons for narrowness of perspective result from a kind of artificial exclusion of views (intentional or not), then the inclusion of a greater range of viewpoints is positive. It may also be the case that with greater variety of viewpoints comes greater precision in identifying exactly where one stands, as one's opinions come to be challenged from all sorts of angles that were previously hidden from view.

Positive or negative, though, it seems that these developments are here to stay: the ideological fragmentation of public law--at least in many fields--within the legal academy is very much with us. 

January 12, 2015 in DeGirolami, Marc | Permalink

Sunday, January 11, 2015

Catholic Legal Theory as a Part of Catholic Education


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.


RJA sj

January 11, 2015 in Araujo, Robert | Permalink

Saturday, January 10, 2015

Chaput: "Each of our lives matters."

In the January issue of First Things, Archbishop Chaput's 2014 Erasmus Lecture, "Stranger in a Strange Land," is featured.  I thought is was excellent, and was really moved by the closing paragraphs:

Each of our lives matters. Our journey does not end in the grave. What we do has consequences for our own eternity and those around us. Our lives gathered together as communities of faith and as a nation shape the conscience and the future of the “city upon a hill” that John Winthrop imagined and that we have inherited.

We were made by God to receive love ourselves and to show love to otherslove anchored in the truth about the human person and the nature of human relationships. That’s our purpose. That’s why we were created. We’re here to bear each other’s burdens, to sacrifice ourselves for the needs of others, and to live a witness of love for the God who made us—not only in our personal lives, but in all our public actions, ­including every one of our social, economic, and political choices. 

These words remind me of a C.S. Lewis passage, one that I've quoted in several of my own academic papers:

“There are no ordinary people. You have never talked to a mere mortal. Nations, cultures, arts, civilizations - these are mortal, and their life is to ours as the life of a gnat. But it is immortals whom we joke with, work with, marry, snub and exploit - immortal horrors or everlasting splendors. This does not mean that we are to be perpetually solemn. We must play. But our merriment must be of that kind (and it is, in fact, the merriest kind) which exists between people who have, from the outset, taken each other seriously - no flippancy, no superiority, no presumption.”


January 10, 2015 in Garnett, Rick | Permalink

Garvey, "Religious Freedom and the Love of God"

It's a few years old, but I stumbled across it again and thought that it definitely deserves regular re-reading.  Here is John Garvey's address, in June of 2012, to the USCCB, "Religious Freedom and the Love of God."  A bit:

. . . One thing we can say is that there has been a decline in respect for religious liberty. We can measure this in two ways. Think about a suit of armor. One measure of its protection is its scope, or the extent of its coverage. (A bulletproof vest covers the heart and lungs. A knight’s armor covers from head to toe.) The other measure is its strength. (A suit of armor will protect the knight against arrows but not against armor-piercing bullets.) 

Religious liberty these days is given a lot less scope. It protects priests but not teachers, Loyola but not St. Xavier, religious orders but not hospitals. Religious organizations like schools, hospitals, and Catholic Charities provide the public with valuable services. The government lets them do this work, but it is blind to their religious dimension. The problem with this way of parsing the work of religious institutions is that they do their work because of their religious beliefs. Catholic Charities does adoptions because the gospel tells us to care for the weak and vulnerable. Catholic universities exist because the gospel tells us to teach all nations. Migration and Refugee Services lives out the teachings of the Sermon on the Mount and Matthew 25. This is the heart of the Christian religion. Serving others – not just Catholics; all others – is not just a recommendation. It’s a requirement. 

Religious liberty also has less strength. It is weaker than it once was. This happened as a matter of constitutional law in 1990 when the Supreme Court traded the rule of Sherbert v. Verner2 for the rule of Employment Division v. Smith.3 The first amendment rule once was that religious liberty is protected unless the government has a compelling reason to override it – like protecting the national security in time of war, or preventing the taking of innocent life. Now the rule is that religion is protected against discrimination; but otherwise the government can ignore religious claims for any legitimate reason (like the aesthetic preferences of a historic preservation code). 

Smith invited religious people to seek protection from the elected branches of government rather than the judiciary, as a matter of statutory and regulatory law rather than constitutional law. In the last year we have seen the elected branches deny that protection. When the law forces Catholic Charities to choose between living the beatitudes and affirming behavior (like gay marriage) that the Church proscribes, freedom of religion is altogether lost. Catholic Charities has to set aside one or another of its beliefs: either the charity or the obedience they are called to in the gospel. . . .

January 10, 2015 in Garnett, Rick | Permalink

"Silence" is coming!

Great news:

Paramount Pictures is in talks to acquire U.S. distribution rights to Silence, and the tentative plan is to release the film November 2015, right in that holiday corridor where awards-bait pictures dwell. Silence is one of those pictures on Scorsese’s bucket list, an adaptation of the Shusako Endo novel that Scorsese has longed to make for more than a decade. The project finally came together whenEmmett/Furla/Oasis Films principals Randall Emmett and George Furla committed the production financing, with Corsan Entertainment co-financing. Shooting will get underway in Taiwan. The film takes place in the 17th century, where two Jesuit priests face violence and persecution when they travel to Japan to locate their mentor and to spread Christianity. The script is by Scorsese’s Gangs Of New York scribe Jay Cocks, and the filmmaker has pulled together a cast including Liam Neeson, Andrew Garfield, Ken Watanabe and Adam Driver.

January 10, 2015 in Garnett, Rick | Permalink

Human equality without God?

Many, including our own Michael Perry, have explored the question whether the "morality of human rights", or claims about "human dignity", are meaningful if it is not the case that human beings are created, sustained, and loved by God.  In this piece ("If There's No God, Are Humans Equal?"), philosopher Christopher Kaczor engages a version of the question.  (The piece of a review of  Our Declaration: A Reading of the Declaration of Independence in Defense of Equality, by Danielle Allen.)  He asks, "[h]uman equality clearly ­cannot rest on qualities such as wealth, virtue, and intelligence, which are ­unequally distributed among us. So, what is it that makes all of us equal?"  Good question!


January 10, 2015 in Garnett, Rick | Permalink

A papal witness for the defense

My comments posted here at MoJ and at First Things regarding papal authority on empirical questions of the sort investigated by the natural sciences (such as the questions at issue in the debate over climate change) have drawn skepticism (and even allegations of bad faith) in some circles. This despite the fact that none of the critics seems willing to say that my account of the Catholic understanding of such authority is erroneous. Their complaint seems to be with the timing of my comments. And some even suggest that I'm ignoring the "fact" (as they imagine it to be) that there is no legitimate scientific debate about climate-change issues, since they are "settled." The allegation is that my comments are meant preemptively to license dissent from the encyclical letter on the environment that Pope Francis is preparing.  And so:

The defense calls as its witness Jorge Bergoglio:

"Now, it's not an easy issue because on the protection of creation and the study of human ecology, you can speak with sure certainty up to a certain point then come the scientific hypotheses some of which are rather sure, others aren't. In an encyclical like this that must be magisterial, it must only go forward on certainties, things that are sure. If the Pope says that the center of the universe is the earth and not the sun, he errs because he says something scientific that isn't right. That's also true here. We need to make the study, number by number, and I think it will become smaller. But going to the essence is what we can affirm with certainty. But, you could say in the notes, in the footnotes, that this is a hypotheses and this and this. To say it as an information, but not in the body of the encyclical which is doctrinal and needs to be certain."  (Source: http://www.catholicnewsagency.com/news/full-transcript-of-popes-in-flight-interview-from-korea-96141/)

(Thanks to my friend Matthew Byrne for the source.)

January 10, 2015 | Permalink