Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Wednesday, August 31, 2016

Sunday Blue(s) Law

As a 19 year old newly returned to his native Texas in the late 1970's, I vividly remember the shuttered mall on Sunday. Vestiges of those Sunday Blue Laws are still present in Oklahoma - no liquor or car sales. But, this is not the case in most of the U.S. and hasn't been for decades. St. Gregory's University professor, Alex Schimpf, reflects on the culture's need for both leisure and worship, especially on Sunday.

http://aleteia.org/2016/08/28/leaving-a-land-without-a-sunday/

 

 

August 31, 2016 in Scaperlanda, Mike | Permalink

Tuesday, August 30, 2016

The Bishops' Labor Day statement . . . and "Hillbilly Elegy"

Reading the USCCB's Labor Day statement, I was reminded of J.D. Vance's recent memoir, Hillbilly Elegy (which I recommend).  Here's just a bit:

. . . Divorce rates and the rate of single-parent households break down along similar educational and economic lines. Financial concerns and breakdowns in family life can lead to a sense of hopelessness and despair. The Rust Belt region now appears to have the highest concentration in the nation of drug-related deaths, including from overdoses of heroin and prescription drugs.

The Church weeps with all of these families, with these children, whose homes and worlds are broken. . . .

There's a lot more in the statement (and in the book), of course.  But, on a first read today, and probably because I just finished reading Vance, this connection (which runs also, I think to both Charles Murray's and Robert Putnam's new books) jumped out at me.

August 30, 2016 in Garnett, Rick | Permalink

Monday, August 29, 2016

Is Rep. Brat's proposed Religious FIRE Act unconstitutional?

My Congressman, Dave Brat (R), recently introduced a bill that prohibits certain foreign nationals from making "any expenditure in the United States to promote a religion." I haven't seen much discussion or analysis, but the bill seems plainly unconstitutional because it discriminates against religion and is a content-based speech restriction that would fail strict scrutiny. Am I missing something? Here's a quick analysis:

Continue reading

August 29, 2016 | Permalink

"Public Faith: A Christian Voice for the Common Good"

Some thoughtful and committed folks, mostly younger evangelicals, have announced this venture and issued a vision statement responding to our current situation, which they describe as follows:

In the midst of another divisive election and a political culture that thrives off of conflict, many Christians and other Americans are tempted to check out and claim the posture of a conscientious objector or to dig in for even greater political hostilities. We believe that neither political withdrawal nor reinvigorated culture wars by Christians will help our nation and communities through the difficult challenges we face.

The headings in the statement include (A) "Pluralism and 21st-Century Religious Freedom"; (B) "Poverty, Stewardship, and Caring for the Most Vulnerable"; and (C) "Strengthening Families and Reducing Abortion."

Check it out.

August 29, 2016 in Berg, Thomas, Current Affairs, Religion | Permalink

Sunday, August 28, 2016

"Progressives Embrace Religious Liberty to Defend Social Action"

Religion News Service, through Crux, reports the shocking news. Progressive churches and social service ministries sometimes run up against legal regulations that prevent them from serving others, and they sometimes seek exemptions--including under those awful state religious-freedom statutes. They sometimes even do it when their work could cause "third-party effects," for example on homeowners in the neighborhood of a homeless shelter or food pantry. Who would've thunk it?

This is a reminder, as I've argued here, that religious freedom is for everyone, and deserves support from progressives and moderates as well as conservatives.

August 28, 2016 in Berg, Thomas, Current Affairs | Permalink

Thursday, August 25, 2016

"What Became of the Christian Intellectuals?"

Today, while in Boston visiting potential colleges with our son, we toured the JFK Presidential Museum. It's fascinating set of exhibits with artifacts, news footage, audio interviews, letters, etc.--well worth an afternoon when you're in town. One artifact was a marked-up invitation list for a 1962 White House state dinner honoring Andre Malraux, then France's Minister of Cultural Affairs. Here's the first page of the list:

JFK Museum - Dinner Invite List

They would have been decent table company, no? (I'll take the list as an official White House recognition that Murray and Niebuhr, as I've argued, should go together--even if the Niebuhrs for whatever reason were crossed off this dinner.)

So I came back to our B&B thinking about the decline in public prominence of Christian intellectuals in America since 1962, and a friend pointed me to Alan Jacobs' new essay in Harper's--subtitled "What Became of the Christian Intellectuals?" Unsurprisingly with Jacobs, it's a great read. Here's a taste of his explanation (which, in full, touches on the careers of, among others, T.S. Eliot, Maritain, Niebuhr, Auden, Richard Neuhaus, Cornel West, and Marilynne Robinson): 

It was the Sixties that changed everything, and not primarily because of the Vietnam War or the cause of civil rights. There were many Christians on both sides of those divides. The primary conflict was over the sexual revolution and the changes in the American legal system that accompanied it: changes in divorce law, for instance, but especially in abortion law. (Many Christians supported and continue to support abortion rights, of course; but abortion is rarely if ever the central, faith-defining issue for them that it often is for those in the pro-life camp.) By the time these changes happened and Christian intellectuals found themselves suddenly outside the circles of power, no longer at the head table of liberalism, Christians had built up sufficient institutional stability and financial resourcefulness to be able to create their own subaltern counterpublics. And this temptation proved irresistible. As Marilynne Robinson has rightly said in reflecting on the agitation she can create by calling herself a Christian, “This is a gauge of the degree to which the right has colonized the word and also of the degree to which the center and left have capitulated, have surrendered the word and also the identity.” 

As they say, read the whole thing.

August 25, 2016 in Berg, Thomas, Religion | Permalink

Law and Tradition in America: My Reply

I have a reply to the essays of Professors Bernstein, Levinson, and Stoner up at the Liberty Fund blog. It is the last in this series, and I've enjoyed it very much. Here is a portion from the middle, responding to some of Professor Levinson's challenging remarks:

It is a somewhat different thing to reply to Professor Levinson, who has earned more attention in this reply by being considerably less sympathetic than my other interlocutors to the value of exploring the relationship of tradition in law. He makes three primary points: 1) My essay was pitched at a sufficiently abstract level so as to be criticized with the aphorism that we are all traditionalists in America so long as we are essentially liberal Progressives (or libertarians). 2) American Founders such as the authors of the Federalist Papers were revolutionaries, not traditionalists, so that the predominant American political-legal tradition is liberal Progressivism, if not radicalism. 3) To the extent a non-liberal-Progressive traditionalism has been part of American intellectual history, it has been responsible for terrible things—slavery most prominent among them—that have rightly been abandoned.

As to the first point, it is difficult to think of anybody (not even Professor Levinson’s traditionalist incarnation, Edmund Burke, would qualify) who holds that a positive view of tradition implies or requires stasis or the total absence of change. Even for those, like Burke, well-disposed to adhere to past patterns of behavior, it is necessary to devise new ones if only because the situations to which those traditional patterns must be applied are different than those that preceded them—“confirming the wisdom of what remains,” as Professor Stoner has it. At any rate, though the relationship between tradition and social change is complex, at least this much may be said: It is not a one-sided affair. It is not all tradition and no change or progress. Otherwise, we would all be liberal Progressives.

Perhaps the differences between Professor Levinson and me are therefore more matters of mood, disposition, or emphasis. He lights up at those moments in American culture and history in which people exercise their freedom to “denounce” the inheritance of the past. It is probably fair to say that I find such moments less electrifying, though I agree with Professor Levinson that they do exist.

I offer the Madison of the National Bank controversy. He counters with the Madison of Federalist 14 (though I might observe that a “decent regard to the opinions of former times” is not the same as an indecent contempt for them).

I could parry with language in Federalist 15 (“experience” as “the best oracle of wisdom”) or the very final Federalist 85 (“No human genius, however comprehensive, is able by the mere dint of reason and reflection to effect it. The judgements of many must unite in the work.”). Or even Federalist 2, in which John Jay notes with some pride that “Providence” has seen fit to give the country to a people “very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long ad bloody war, have nobly established general liberty and independence.”

Doubtless Professor Levinson would have a riposte at the ready, and so it would go on. He characterizes these as internal “contradictions” within The Federalist but they may simply be different features of the moral and political experience of these three authors, each representing its own portion of wisdom. Many of them do not vindicate liberal Progressivism in the least.

In fact, it severely distorts the American Founding to call it either committed to a liberal Progressive ideological program or rabidly radical. True, there were elements of the Old World that were cast off by the new nation, but as historians from Forrest McDonald to Eric Nelson have (in their own ways) shown, the temper of the American Founders may have been even more traditionalist than their English progenitors. Early Americans were the inheritors of an English constitutional traditionalism that was centuries old. Their revolution was motivated by the Crown’s denial of what they perceived as their traditional, ancient rights as Englishmen, rather than by the desire to denounce and exchange those rights for something altogether and radically different. What they desired for themselves was what they already knew well as the tradition of self-government in liberty.

The English Bill of Rights was a model for ours, just as the Act of Union was a model for our federalism. As Greg Weiner has put it in his fine recent essay for Law and Liberty, “Of course, the colonists were deeply affected by the ideas of the Enlightenment, as they were by the ideas of antiquity (far more essentially a staple of their curricula).” Tradition and change were at least equally parts of their political and intellectual constitution. As they should be (but regrettably are not) of ours.

 

August 25, 2016 in DeGirolami, Marc | Permalink

Alan Noble on Protecting Religious Colleges, with Sympathy for LGBT Students

Alan Noble, a professor at Oklahoma Baptist University, responds to the welcome dropping of the onerous proposed regulations on religious colleges in California. He notes that the issue will surely return, perhaps as soon as next year. The way forward, he argues, is to preserve the freedom of religious (among other) colleges to maintain their thick identity through policies on student conduct, while making sure that LGBT students have notice of policies that will affect them and also have the ability to exit the college and attend elsewhere without severe cost. Along the way he explains in concrete terms why the colleges' freedom matters and should be protected, why LGBT students may face difficulties that call for a sympathetic response, and why the Bob Jones model of handling the problem--strip the colleges of tax exemption--while perhaps appropriate for the situation of race discrimination, is inappropriate for this situation. A small sample of the arguments:

If [other] students were prohibited from using their government aid at these religious schools, [as a sanction for the schools' policies,] the consequences would be severe for these communities. But the policy would also represent a weakening of the U.S.’s commitment to support dissenting views. Religious schools offer public benefit with the education they provide, but also in their cultivation of thick beliefs that may differ from public orthodoxy....

     No response to these scenarios can erase all the conflicts and heartbreak between students, families, and academic communities, but through a model of communication, mutual respect, and dignity, schools can create a healthier environment for everyone....

     ... By increasing transparency about Title IX exemptions and codes of conduct, easing the transfer process for students who cannot abide by the codes of conduct, and taking a strict stance on bullying and abuse, religious schools can retain their distinctive mission while protecting students.

One need not agree with everything in this piece, and the details about disclosure/notice and exit can matter a lot. But overall, IMO, the piece is a good example of how to argue for the freedom of colleges and other religious nonprofits, in the face of current challenges, in a way that is most likely to convince those in the middle who are open to persuasion.

August 25, 2016 in Berg, Thomas, Current Affairs | Permalink

Wednesday, August 24, 2016

"This was the funeral of a great and good man who had spent a life worthy of praise and imitation."

Mike Barnicle's write-up of the life and funeral of John Timoney is just as he describes the remembrances offered at it: "true, telling, and to the point." The opening paragraphs: 

Up on the fourth floor of the Frank E. Campbell Funeral Home on Madison Avenue, there were at least 300 stories standing in a long line that had formed by 2:30 on Monday, a soft, summer day in Manhattan. The stories were told mostly by men who worked for, with or alongside a magnificent and honorable policeman named John Timoney who was claimed by cancer at the age of 68 a few days earlier and now lay in wake as hundreds lined the sidewalk outside waiting patiently to pay their respects.

John Timoney was a sentinel of the city. And his life, his accomplishments and his very demeanor stand as a vivid antidote to the toxic behavior of another man from New York City who manages to incite a fear of the future by constantly hinting or even claiming that America is being stolen by some who do not belong here or rigged by some others in political power.

August 24, 2016 | Permalink

More on Gushee, "middle ground", and dishonesty

A reader called my attention to this piece, from Mere Orthodoxy, which also responds to the David Gushee column I linked to yesterday.  It's dead-on, bracing stuff. Again:  those who fret about "culture warriors", "culture-war rhetoric", etc., while imagining or pretending that the aggression in that "war" isn't coming from progressive and intolerant egalitarians, are, well, mistaken.  Here's a bit:

The trouble here is that [Gushee's account] completely misrepresents what is actually happening. What we are witnessing is the triumph of one understanding of reality over another. As I noted last week, market-enabled, government-backed individualism is ascendant; Christianity is in decline.

This transformation will have wide-reaching social consequences that extend well beyond the redefinition of marriage to accommodate same-sex couples and give them access to legal benefits enjoyed by married couples. Again, you can argue that this is a good thing. Many will. And that’s fine. I’d prefer it, actually. But let’s be clear on this point: We aren’t witnessing a transformation effected by an objective, impersonal force called “progress” in which entrenched social conservatives are acting to oppose it. We are witnessing a conflict between two groups with rival conceptions of reality that are incompatible on certain key points. That is the story here even though you’d never guess it from Gushee’s remarkably dishonest account.

And here’s the thing: If we’re honest about the fact of the conflict playing out in front of us, we can be honest about the stakes of the debate, which are enormous: Either we are completely autonomous, self-defining human individuals and the government has an obligation to protect our right to self-definition or we enter into a world given to us in a certain condition, shaped by certain factors outside our control, and filled with norms, rules, and laws we are powerless to change and can only submit to. Gushee’s attempts to obscure this fact do nothing to change it.

August 24, 2016 in Garnett, Rick | Permalink