Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

A Member of the Law Professor Blogs Network

Thursday, July 24, 2014

school vouchers in a time of increasing intolerance

Catholic schools are "public" schools in the best sense of the word, contributing as they do to the public - and common - good of the communities they serve. In many communities, they serve non-Catholic and poor students and their parents.

As Rick Garnett has said on this blog many times, in a healthy society, the state ought to recognize the public character of these institutions and support them through vouchers or a similar funding mechanism.  When the public schools were de facto Protestant and an anti-Catholic spirit filled the air, many states adopted Blaine Amendments to prohibit public funds being used to support parochial schools. 

Could the Blaine Amendments - as ugly as they were - be a blessing in disguise in a culture that is increasing intolerant of religious dissent from secular orthodoxy? Because of the Blaine Amendments, Catholic and other religious primary and secondary schools - unlike religious colleges, which are dependent on federally subsidized student loans - have had minimal entanglement with government money.

There may come a day in the not too distant future when religious colleges and univesities will be faced with a choice: capitulate to the secular orthodoxy or ween yourself from the government teat. The Blaine Amendments unintentially shield many primary and secondary schools from this choice. Over a decade ago, James Dwyer wrote Vouchers Within Reason, which argued that vouchers might provide a way to bring relgious schools and their parental patrons to heels without have to padlock school doors or put parents in jail (his words, not mine). When I reviewed his book, less than a decade after the Religious Freedom Restoration was enacted with overwhelming bi-partisan support, I was hopeful that government strings attached to vouchers would not threaten the character and culture of these religious schools. I am much less hopeful today and therefore am inclined to see the Blaine Amendments as an unexpected blessing.  Rick, I'd be interested in your take.

 

July 24, 2014 in Scaperlanda, Mike | Permalink

Friday, July 18, 2014

Reflection on Religious Liberty and the Freedom of the Church

I learned much at the Libertas Workshop on religious liberty at Villanova and am grateful to Michael, Marc, Zach, and the other participants for an engaging three days.

Chapter 9 of John Courtney Murray’s “We Hold These Truths” has given me much food for thought. I have heard it said that the United States through Murray’s work gave the Church its modern understanding of religious liberty expressed formally in Dignitatis Humanae. But Murray, at least the Murray of Chapter 9, seems deeply skeptical of the American understanding of religious liberty. At one point, he writes: “Modernity rejected the freedom of the Church, in the twofold sense explained, as the armature of man's spiritual freedom and as a structural principle of a free society.” In other words, free society requires not merely freedom of individual consciences but freedom of the institutional church. In fact, freedom of conscience depends on and is formed within the cradle of the church, which must be free to define and shape its own destiny.

This raises several questions for me. 1) Did the Catholic Church adopt an American understanding of religious liberty in Dignitatis Humanae or did it learn from the American experience while developing its own distinctive understanding? 2) To what extent is freedom of the church possible in a religious pluralistic nation such as ours? 3) Is freedom of the church inconsistent with an American/Protestant understanding of churches as voluntary associations? 4) Is the level of dissent within the Catholic Church today due – at least in part – to the cultural acceptance even within the church of an atomized freedom of conscience weakly tethered if at all to the Church operating in its freedom? 5) Should the bishops exercise their teaching authority within the Church to clearly articulate where the American concept of religious freedom convergences and diverges from the Church’s self-understanding? 

July 18, 2014 in Scaperlanda, Mike | Permalink

Wednesday, July 2, 2014

Religious Freedom, Tolerance, and the black mass

A black mass is scheduled for the Oklahoma Civic Center on September 21 sponsored by this group. Here is Archbishop Coakley's statement responding to this disturbing news. WIth the Hobby Lobby decision this week, there has been much discussion about religious freedom in the news and on this blog.

A former student asked me: should sincrere satanists be entitled to the same religious freedom and tolerance as sincere adherents to other religions? Does the fact that satanists believe in God but worship God's enemy put them in a different category than Jews, Muslims, Christians, Hindus, Buddhists, Pagans, agnostics, and atheists? Does the fact that the black mass is an explicit inversion and mockery of the Catholic Mass put it in a different and unprotected or less protected category of "worship"? Could the framers have dreamt that black masses would be held openly in our country?

Fellow blogger, how should I respond to my former student?   

This is how the group describes the black mass:

The modern form of the Black Mass is still practiced by modern Devil Worshipers to celebrate the perversion of the Catholic Mass still seen in society today.  The Black Mass as gone through a transformation to maintain practice within societal law.  The consecrated host is corrupted by sexual fluids then it becomes the sacrifice of the mass.  The blasphemy remains intact along with corruption of Catholic Mass.  Modern/Laveyan Satanists see this as ritual to mock the Catholic Mass in the form of a blasphemy rite used to deprogram people from their Christian background, however Religious Satanism sees the Black Mass as a religious ceremony to empower themselves and receive a "blessing" from the Devil.  The Black Mass being performed at the Okc Civic Center has been toned downed as to allow it  to be performed in a public government building.  The authenticity and purpose of the Black Mass will remain in tact while allowing for slight changes so that a public viewing can occur without breaking Oklahoma's laws based on nudity, public urination, and other sex acts. 

July 2, 2014 in Scaperlanda, Mike | Permalink

Thursday, June 19, 2014

Unaccompanied Minors Crossing the Border by the Thousands

First Things published my essay Tragic Compassion on the origins of our current crisis at the border.

Here is the beginning of the essay: "The Department of Homeland Security estimates that 90,000 unaccompanied minors will be apprehended attempting to enter the United States this year, up from 40,000 last year. DHS expects the number to grow to more than 140,000 next year. Ranging in age from six to 17, many of these minors travel more than 1,700 treacherous miles from Honduras across Guatemala and Mexico.

Overwhelming immigration authorities, many unauthorized entrants are released into the United States on the promise to report to immigration authorities, although federal authorities lack the will and the resources to ensure follow through. Others are being or will be housed on military bases in California, Oklahoma, and Texas. At least in the short term, there are concerns about adequate housing, health care, education, sanitation, food, and supervision as detention facilities attempt to cope with the influx. 

Misguided compassion led directly to this tragedy. How did we get here?"

June 19, 2014 in Scaperlanda, Mike | Permalink

Wednesday, February 5, 2014

MOJ at 10: Scaperlanda's reflection

My first post, written on February 10, 2004 was titled “Anthropology and the Structures of Injustice.” In that post, I suggested that “A (maybe THE) major structure of injustice in our society is a malformed anthropology, which provides the foundation for many of the other structures of injustice.” I continue to think this. 

A Chronicle of Higher Education (1/27/2014) article, “When I Was Young at Yale,” written by an English professor who co-taught a course with Richard Rorty at Virginia, where the objective of the course was “de-divinization,” supports my hypothesis. He writes: “We were out to wipe the highest aspirations of humanity off the blackboard—they were an encumbrance, a burden, a major inconvenience. Courage, compassion, the disinterested quest for ultimate truth: Let’s drop them. They were forms of oppression. They weighed people down.” Although this professor confessed to being “slow,” he finally realized that “If there were no ideals, or no creditable ideals, then the kids who were headed from Skull and Bones to Wall Street and the CIA were absolved, weren’t they? They didn’t have to be honorable; they didn’t have to seek the truth; they didn’t have to do what Auden told us all we had to try: ‘love one another or die.’ No, the kids from Yale [and, I would add, the rest of us] were free.”

I too am slow. I ended my first post with “We cannot force someone to accept our anthropology - our understanding of what it means to be human - but I think (like Rick) that there is good reason to raise the question and also hope (not to be confused with optimism) that this anthropological perspective will resonate with others. More on these two points later ...”

Ten years later, I continue to hope, but I am much less optimistic that this hope will be realized in the near term than I was a decade ago. Ten years ago, in my youthful (I wasn’t even 44 yet) naiveté, I imagined that the new springtime of the Church was just around the corner. I thought that if people understood the beauty of the Catholic Church’s teaching on the nature of the human person (instead of obsessing over and twisting a few aspects of this teaching), they would gravitate toward that worldview in large numbers at least philosophically. My co-edited book (with Teresa Collett), “Recovering Self-Evident Truths: Catholic Perspectives on American Law,” was an attempt to show that the Catholic Church had much to contribute to the discussion about labor law, immigration law, property law, contract law, etc.

My sense today (and maybe I am just an overly pessimistic nearly 54 year old) is that far from gaining traction, a Catholic anthropology is actually losing ground in the public sphere where debate is being shut down in the name of tolerance and diversity. I now expect a long winter before the coming spring. 

I am grateful for Blessed John Paul II and Pope Benedict XVI and their sound philosophy and theology (I suspect that the Theology of the Body will take root in the long run) in the decades after Vatican II.  Rational argument still needs to be made, and the two of them along with faithful theologians and philosophers, have kept the Church on solid intellectual ground. But, I sense a shifting of the wind, and I am equally grateful for Pope Francis with his emphasis on being a living witness to Christ’s love and mercy. I suspect that love and mercy showered on those who have lost hope will have a greater impact in the long term than any argument the best of us could make.  As a result of my shift in emphasis from arguing with others to being present to others, I have become one poor correspondent on MOJ.

February 5, 2014 in Scaperlanda, Mike | Permalink

Sunday, December 29, 2013

Eve Tushnet and the Holy Family

Although Eve Tushnet's "Coming out Christian: How faithful homosexuals are transforming our churches" (The American Conservative Jan./Feb. 2014, subscription required) was not written with the Feast of the Holy Family in mind (at least to my knowledge), it is a fitting reflection on this feast.

She writes that "Gay Christians are finding 'chosen families' in many different ways," including living in "intentional communities" and embracing the "nearly forgotten Christian traditions in which friendship is treated as a form of kinship that carried obligations of care."

She also argues that the presence of celibate gay Christians in Christian communities those communities embrace the Cross: "The sentimental, Disney view of marriage was always wrong.  Marriage changes our loneliness but rarely cures it. ... But for a long time American Christianity has sought to fix loneliness and suffering rather than accepting them as part of the core of Christian experience. ... Because marriage, the standard solution to the problem of loneliness is typically unavialable to gay Christians, we've had to confront loneliness earlier and more publicly than many of our peers." 

She ends with: Jesus - unmarried, marginalized, misunderstood, a son and a friend but not a father or spouse - is the preeminent model for gay Chrisitans. In this, as in so many things, we ar just like every body else."

December 29, 2013 in Scaperlanda, Mike | Permalink

Friday, November 29, 2013

The Social Kingship of Christ: A Question for Patrick

On the Feast of Christ the King, Patrick quoted Fr. Aidan Nichols, OP: "[P]ublicly recognising divine revelation is an entailment of the Kingship of Christ on which, despite its difficulties in a post-Enlightenment society, we must not renege." Patrick continues: "I agree with Fr. Nichols's judgment, of course, but I have to wonder whether any other contributor to this blog also agrees.  Enthusiasts of the First Amendment's agnosticism will have a hard time on this one." 

Right after the above quote, Fr. Aidan says:

Where the ethos of society is such that an elected legislature may be trusted to regard the Judaeo-Christian tradition as normative, the Church should be accorded her rightful place as “mother and mistress”. (The Edwardian priest-novelist Robert Hugh Benson’s The Dawn of All will give you the idea.) Where that is not possible there should at least be, in the former Christendom, a recognition of the historic role of the faith in forming the human patrimony.

Patrick, you have given this much more thought than I have, but it seems to me that these are the money lines for our situation.  I assume you agree with me that the ethos of our society is not such that the elected legislature can be trusted to regard the Judaeo-Christian tradition as normative. If so, then we can and should fight for a) our religious freedom along with the religious freedom of others (the agnostic position) and b) a recognition that Christendom played an historic role in forming the human patrimony.  The EU's refusal to give recognition to this patrimony in its proposed Constitution gave rise to Joseph Weiler coining the phrase Christophobia.

By my reading, in the American context this would not be considered First Amendment agnosticism but would be considered First Amendment realism.  Do you agree Patrick? Or, what am I missing?

November 29, 2013 in Scaperlanda, Mike | Permalink

The Culture Wars and Beyond: A response to Jody and Rick

In responding to our current cultural situation, two questions are paramount: 1) How am I called to respond? and 2) What is my judgment of the current situation?  These questions underlie the argument between Jody Bottum (here) and Rick Garnett (here).

In a recent Patheos essay, Jody writes: Forget the culture-wars crap. It was a fight worth having, back in the day when there was enough Christendom left to be worth defending. ... Start, instead, with re-enchnatment." I don't understand how we benefit from a house divided.  Why can't God be calling Jody to get out of the culture wars and focus on re-enchantment of the world through literary means while simultaneously calling Rick to fight for the legal rights for the unborn and religious freedom for all?  I don't see it as an either/or but a both/and according to our unique call.

What we hear and how we answer will be influenced, I suspect, by our assessment of the current state of our culture. The Christian who believes that we live in a truly post-Christian culture where Christian understandings of the human person, of reason, of truth, of goodness, and of beauty fail to get any traction might conclude that his or her time is better spent re-enchanting the world with beauty to provide an opening to the human heart that - when expanded - will be more open to the Good News and all that the Gospel entails. On the other hand, the Christian who believes that arguments on behalf of the unborn (or the poor, or the immigrant) and arguments for religious freedom can still gain traction in our culture, will, if called to do so, continue to make those arguments vigorously in the public square, our courthouses, and legislative assemblies.  

It seems to me that there is room for both/and!

 

November 29, 2013 in Scaperlanda, Mike | Permalink

Sunday, November 24, 2013

Christ the King

“Who – or WHAT — really rules our lives?” 

Christ the King!

November 24, 2013 in Scaperlanda, Mike | Permalink

Sunday, October 6, 2013

Evangelizing Mars

Suppose we discover an advanced human civilization on another planet marked by a great divide between economic and educational classes but suffering at both ends of the spectrum from a quiet desperation caused by a gnawing emptiness and hunger that grows continually deeper despite continuous consumption of everything from the latest technology to cheap and often vulgar entertainments to food to sex. An almost endless array of choices faces members of this society with no concrete criteria by which to choose among goods.  Loneliness abounds.  This civilization’s mythical religious traditions of the past no longer provide meaning and guidance in their lives. Although “reason” had always had a tough time supplanting the impulse of arbitrary power, “power” now reigns supreme in the face of collapse of faith in reason. The family structure is fractured as are the political structures. Social bonds have become completely untethered. In this “civilization” many employers view workers as disposable means to the end of production and the fetus in the womb is often viewed as a disposable by-product of sexual autonomy.

As we begin a natural process of interacting with these neighbors, Pope Francis encourages missionary orders to proclaim the Gospel to this newly discovered civilization.  How to bring Christ to this particular world with its myriad problems and dysfunctions?  As the missionaries discern how to preach the Gospel to this particular people at this particular time, they begin to realize the daunting nature of the task. But, they have a powerful ally – the law written on the heart - on their side.  Even if the people of this planet deny it, these missionaries know and trust that the natural law resides deep within each person.  Following the tried and true method of Alcoholics Anonymous, and risking the label relativist, the missionaries will take the people of this civilization and their consciences as they are, trusting that with this starting place, these consciences will develop to conform to the objective truth as their world is re-enchanted with the message of a God of mercy; a God who is Love – who loves so much that He sent His only Son to be one with them and to suffer and die for them.

The missionaries know that to be successful they must live the Gospel and literally become Christ for these people. As hope comes to this lost people, the missionaries know that they will be open to hearing about the authentic freedom and happiness that comes from living according to God’s design.  Although it will happen in fits and starts (after all, how many centuries did it take for the Christian West to root out the evil of slavery?), license – the false freedom of choice – leading to emptiness and despair will be replaced with living a moral life. For these people who breathe the narcissistic air of their culture, the saving hope of Christ must precede the Church’s moral teaching just as the adulteress experienced the loving gaze of and act of mercy from Christ BEFORE He tells her to go and sin no more.

This alien world is our world, or at least I suspect that Pope Francis thinks so. Despite the multiple signs to the contrary, many of us live, breathe, and operate as if this post-Christian civilization can be re-Christianized from within by re-membering our Christian, including moral, heritage. Pope Francis, I suspect, thinks we are wrong.  He thinks that that this iteration of Western Civilization – the civilization that emerged from the ashes of the Roman Empire – is dead.  We may not see it yet, but the dual projects of Reformation and Enlightenment, which have taken root over the last 500 years with the accompanying divorce of faith and reason and ultimate collapse of both, have run their course effectively destroying this iteration of Western Civilization. 


Vatican II prepared us to respond to this reality, but we needed 50 more years or so to make clear that the Church was not changing its fundamental teachings before we could begin to proclaim the Gospel to this alien civilization in which we live.  As this iteration of Western civilization dies and a new one rises from the ashes, we can rest assured that Christ will not abandon the Church.  Come Holy Spirit!

October 6, 2013 in Scaperlanda, Mike | Permalink | Comments (2)