Mirror of Justice

My Love/Hate Relationship with Ronald Dworkin's Scholarship

Ronald Dworkin died last Thursday. I met him twice, but I doubt he could have picked me out of a lineup. Nonetheless, he had an enormous influence on my scholarship. Simply put, much of my scholarship has been directed against his. I do not mean this as a cheap shot. Dworkin was a scholarly giant writing squarely in the Kantian tradition, but I rebel against that tradition, or more precisely, a significant part of it.

It was Dworkin who first drew me into an interest in political theory. He wrote an essay on liberalism many decades ago in which he argued that liberalism was committed to the view that the state should be neutral about the good life. My reaction was that this was not the liberalism I knew and appreciated. The state had never been neutral about the good life, never would be, and never should be. Even more important Dworkin’s thesis (which was qualified and refined over the years) was set in a larger theory claiming that moral and political questions could all be resolved by reference to fresh deductions from a small set of premises. My reaction has been that free speech, for example, clashes with too many other values and interests to hope or expect that the right answer to these problems could ever be found by deductions from a small set of premises. To be fair, Dworkin conceded that a right like freedom of speech could be limited if it conflicted with another right, but the criteria for determining the content of a right were too elusive for my tastes. Over the years, I realized that I had a temperamental objection to grand theory. It was not just that I thought grand theory was pragmatically unrealistic. I did not want grand theory to succeed. It was too simple; too pat; too abstract; too rationalistic; and it insufficiently appreciated the passion, the earthiness, the romance and mystery of moral life.

At the same time, I realized that those who write in the tradition of grand theory have reasons of temperament to want it to succeed that go beyond pragmatic considerations, and I wrote about that (The First Amendment, Democracy, and Romance, Ch. 4) after giving a talk at NYU, the home of grand theory either in the realm of political theory like Dworkin or in the realm of ACLU free speech liberalism (NYU was the ACLU’s most important law school home many decades ago). My talk was not well developed, but the defensive reaction I received even from ordinarily gentle folk who fiercely resisted my psychological speculation showed me I was on to something. (In fairness, Larry Sager was enormously helpful).

If I disagreed with Dworkin on much and am grateful that he inspired me to fight against him, I agreed with much as well. One does not have to be a devotee of grand theory to recognize the importance of equality, dignity, and autonomy, and Dworkin championed all three in eloquent and thoughtful ways. Similarly there are many areas where instrumental arguments are out of place, as Dworkin so frequently argued. Even more important, Dworkin brilliantly argued that law is not just a set of rules, but policy arguments and moral principles are a part of law. Indeed, as I interpret him, Dworkin claimed that there was always a right answer not only to legal problems, but also to moral and political problems. This was the part of his theory that I most appreciate: moral skepticism is not an appropriate foundation for liberalism; it is an incoherent and psychopathic basis for law and politics.  I think this is an area where Mill and Dworkin (and Catholic social theory) come together though Mill laid more stress on our fallibility in determining what the right answer might be.

Dworkin was an eloquent champion of civil liberties and a public intellectual. He was an important moral, political, and legal theorist. He is gone. But he has left a body of work that will be influential for a long time to come.

 

Two Books Worth Reading

I have recently read two books that shed considerable doubt on scientific assumptions that the supernatural does not exist. The first is by Kyriacos C. Markides, The Mountain of Silence: A Search for Orthodox Spirituality (2001). The book explores the beliefs and practices of Orthodox monasterial life as practiced by monks and hermits. In particular, he follows a remarkable larger-than-life priest named Maximos to the island of Cyprus and reports on his actions, his views, and his spiritual practice. Most important for this post, he reports on numerous phenomena that can only be called miracles.

I read this book in a reading group. One of our members knows the author and vouches for his integrity. After reading the book, I became convinced that scientific materialism could not possibly explain the events reported, and I very much doubt that the events were concocted, were dreams, or were otherwise fictitious. That said, I think the theology embraced by these monks, though sometimes qualified, too often seems to subtly denigrate those who care for and act in this world whether it is action for social justice or caring for children. I resist the suggestion that one has to be a monk to lead a fulfilling religious life though there is an impressive spiritual intimacy in monasterial life and, in fairness, the monks would not explicitly denigrate those who choose a life engaged in the world. I am reacting to a tone and a usually unspoken attitude.

Another book explicitly challenging scientific materialism currently sits atop the New York Times non-fiction bestseller list: Proof of Heaven: A Neurosurgeon’s Journey into the Afterlife (2012) by Eben Alexander. Although the book is somewhat repetitious, the story is riveting. Alexander, an academic neurosurgeon was struck by a sudden illness and was in a coma for seven days. He had previously thought that near death experiences felt real but were fantasies produced by the brain under severe stress.  His case was unique because the experience he had during his coma in his view could not have been produced by the brain because the part of the brain that produces thought and emotion was not functioning during his coma. His recovery from the illness was unprecedented. But his near death experience was even more impressive. Alexander richly details what he experienced and he has since learned that his experience is similar to those who also have had near death experiences. His experience has led him to the conviction that heaven and God are real. Proof of Heaven is a powerful book that will strengthen the faith of believers and might give second thoughts to those who think belief in the supernatural is simply nonsense.

What Was Mary Thinking?

The Catholic Bishops will not endorse the theology embedded in Colm Toibin’s novel, The Testament of Mary. Nor will any Protestant bodies. Indeed, religious conservatives such as Mark Shea (see here) are particularly defensive about the book’s depiction of a decidedly non-traditional Mary. He derides the book as “Catholic-hating detritus,” a “viciously dishonest little screed,” “a torrent of invective against the gospel through his Marian sock puppet,” that does for Mary what Dan Brown did for Jesus.

The comparison with Dan Brown is inapt in many respects. Most significantly, Toibin is an outstanding writer, twice shortlisted for the Man Booker prize, not the kind of writer who produces one-damn-thing-right-after-another page turners, however inventive.

I would think that anyone less defensive than a Christian conservative would recognize that the book’s heretical views make for a better novel: surprising, independent, unpredictable, and fresh.

Most important as Susan Stabile argues in an excellent review of the book (see here), “I like the encouragement to try to go beyond the little we have in scripture about many figures – including Mary – to try to understand what they must have been feeling. The book is a reminder that the figures about whose lives we read only snatches in the Gospels were real people with real – and complex – emotions.”  That is exactly right. A preoccupation with heresy misses the invitation to think about the humanity of Mary and the provocation to think about how she experienced the life of her son, especially the crucifixion.

Indeed, I would argue that reading The Testament of Mary is a form of prayer. It is not possible to read the book without wondering what Mary was really thinking. When Jesus was 12 and Jesus told her he was to be in his Father’s house, she did not understand. How did she understand the crucifixion? As a mother, did she come to think it was worth it?

There is a wonderful prayer site, sacredspace.ie (run by the Irish Jesuits but useful for Catholics and Protestants alike) which in addition to encouraging meditation and dialogue with Jesus, and commenting on gospel passages, promotes the kind of reflections of time, place, and emotions that inhabit Toibin’s book. It is ordinarily not easy for many of us to do. Insofar as Mary is concerned, Toibin’s book makes it impossible not to think about the life experience of Mary during a time period in which she is given Biblical short shrift.

 

Protestant Communitarianism and Catholic Individualism

The common understanding is that Catholics emphasize community and Protestants emphasize the individual. From the Catholic perspective human beings are social animals rooted in a community that begins with the family. Catholic support for the poor is rooted in the recognition that we are all made in the image of God, are all part of the human family, and that the option for the poor is a part of what it means to be a Christian. On the other hand, the common understanding is that Protestants emphasize the individual. One common path from that is a strong endorsement of the capitalistic system (where Catholic thought emphasizes the perils of unregulated capitalism) though quite different conclusions follow from Protestant individualism for evangelicals and mainline Protestants (though there are differences within those groupings). The former tend to limit support of the poor, for example, to the “worthy” poor; the latter tend to be closer to the traditional Catholic view in this respect though not in many others including women, sexual teachings, and the like.

The communitarian/individualistic emphasis seems to be turned upside down on Sundays. The communitarian Catholics turn into individualists at Sunday Mass. It is possible for a visitor to walk into a Sunday Mass (of course, there are exceptions) and be spoken to by no one except a person assigned to hand out a program (of course, contact is made with others when the exchange of the Peace of Christ is made during the service, but the Vatican advises parishioners to stay close to their places). In stark contrast in the overwhelming majority of Protestant churches, it is not possible to walk into them as a visitor without being greeted by many. It is sometimes overwhelming. It is hard to go into such churches and simply pray at the outset of a service. The passing of the Peace in many of these churches is an occasion for greeting most of those present.

I imagine a Protestant walking into many Catholic churches feels unwelcome. A Catholic walking into a Protestant church feels barraged. But there is more. I do not mean to criticize Catholics or Protestants here (I aim to describe general patterns). I believe that the reason Catholics are not as social when they gather for Mass is that there is a sense of the sacred in church, and a sense that the right thing to do is to quietly pray. There is surely no intention to make visitors feel unwelcome. Similarly, Protestants are not trying to make visitors feel uncomfortable. Quite to the contrary, they are simply making clear that visitors are welcome. I wonder, however, what impact this difference in the ritual has on the communitarian sense of Protestant congregations and without arguing against a sense of the sacred, I wonder whether the sense of the sacred works against community bonding in Catholic congregations. 

cross-posted at religiousleftlaw.com

Reflections on the Meaning of Christmas and the Real War Against It

Rabbi Michael Lerner writes that Christmas and Chanukah share a spiritual message: that it is possible to bring light and hope in a world of darkness, oppression and despair. With regard to Christmas in particular, he says: “Christianity took the hope of the ancients and transformed it into a hope for the transformation of a world of oppression. The birth of a newborn, always a signal of hope for the family in which it was born, was transformed into the birth of the messiah who would come to challenge existing systems of economic and political oppression, and bring a new era of peace on earth, social justice and love. Symbolizing that in the baby Jesus was a beautiful way to celebrate and reaffirm hope in the social darkness that has been imposed on the world by the Roman empire, and all its successors right up through the contemporary dominance of a globalized rule of corporate and media forces that have permeated every corner of the planet with their ethos of selfishness and materialism.”

Fox News and their ideological compatriots denounce what they describe as a War on Christmas. But John Brueggemann, writing in Lerner’s Tikkun (see here), is not moved by the crocodile tears of Fox News. Nonetheless, he is concerned about the real war on Christmas: “There is a war under way. But it is not about whether a Christmas tree can be mounted here or there. It is about whether the market will define the sacred. Advent invites Christians to do exactly the opposite of what the Christmas shopping season urges: slow down, get ready for something out of the ordinary, look to the most important promises of God and neighbor, and ponder what gifts we have to offer. For Christians, Jews, Muslims and other people of faith seeking a different sense of time and a different future for the world, we share a common cause in facing this threat together.”

I went to a solstice celebration the other night. Rabbi Lerner makes sense of that celebration, “Radical hope is also the message of Christmas. Like Chanukah, it is rooted in the ancient tradition of a winter solstice celebration to affirm humanity's belief that the days, now grown shortest around December 23rd, will grow long again as the sun returns to heat the earth and nourish the plants.  Just as Jews light holiday lights at this time of year, so do Christians transform the dark into a holiday of lights, with beautiful Christmas trees adorned with candles or electric lights, and lights on the outside and inside of their homes.”

It seems to me that Christmas is best understood not as a day of enforced holiday cheer or a day to focus on how we might or might not enjoy our material gifts, but a day of thanks for our lives, a day to recall that we are obligated not to treat the gift of our lives as pointless, and a day to reflect upon how we might bring more light to the lives of others.

 

How Many American Catholics Should Receive Communion?

Placing particular emphasis on the gay marriage issue, John J. Myers, the Archbishop of Newark, New Jersey, maintained in a pastoral letter here that Catholics who cannot assent to the Church’s teachings on marriage and the family “must in all honesty and humility refrain from receiving Holy Communion until they can do so with integrity.” Many reacted to the letter as if it were unprecedented, but I do not believe it is.

The U.S. Conference of Catholic Bishops in 2006 here insisted that “If a Catholic in his or her personal or professional life were knowingly and obstinately to reject the defined doctrines of the Church, or knowingly and obstinately to repudiate her definitive teaching on moral issues, however, he or she would seriously diminish his or her communion with the Church. Reception of Holy Communion in such a situation would not accord with the nature of the Eucharistic celebration, so that he or she should refrain.” In context, as I read it, a Catholic is obstinately rejecting doctrines of the Church if he or she has given up trying to believe that the Church’s moral teaching is correct. What distinguishes the letter of Myers from the statement of the Bishops is that Myers identifies the failure to assent to a specific moral teaching as bringing about separation from the Church. If Myers is right about this, it seems to me that the overwhelming majority of American Catholics should not be receiving Communion. To reject the Church’s teaching on contraception is to reject the teaching authority of the Church, and the overwhelming majority of American Catholics do exactly that. My guess is that relatively few of American Catholics who reject the contraception teaching are still trying to accept Church teaching on the issue.

It is not surprising that the Conference of Bishops is more circumspect about what causes separation from the Church than Archbishop Myers. Nonetheless, the same day the Bishops stated that the failure to accept the teaching of the Church on moral issues should cause one to refrain from receiving Communion, the Bishops in separate documents reaffirmed their teachings on contraception and same sex relations. There is already a crisis in the teaching authority of the Bishops. If they follow the lead of Archbishop Myers in being specific about which moral teachings cannot be rejected while continuing to receive communion, Catholics will either leave the Church or contumaciously receive Communion anyway. In other words, the Emperor will lose many of the clothes that are left.

 

Ross Douthout on Liberal Christianity: You'd Think the New York Times Could Do Better

On July 14, Ross Douthout wrote a column in the New York Times about “the collapse of liberal Christianity.” In particular, he focused on the Episcopalian Church which he claimed had followed retired Bishop John Shelby Spong in adopting every liberal idea ever promulgated by a liberal theologian. Spong famously denied the existence of miracles in general and the physical Resurrection of Jesus in particular. He denied the existence of a traditional God and the coherence of praying to an imaginary God who cares about what happens in the world. Douthout blames the decline in Episcopalian membership and the decline in liberal Christianity on the acceptance of liberal beliefs. He sees little difference between liberal Christianity and secular liberalism.

There is a lot that is wrong with this picture. First, there is no reason to believe that the leaders of the Episcopal Church are as theologically liberal as Spong. Indeed, Rowan Williams, the Archbishop of Canterbury, has stated that Spong’s core theological beliefs “represent a level of confusion and misinterpretation that I find astonishing” (although Williams’ own views are more nuanced than those typically understood by parishioners). See here. I can find no evidence that the Presiding Bishop of the Episcopal Church, Katharine Jefferts Schori shares Spong’s theology. In reading some of her sermons, it is clear to me that she has a quite different conception of Divine caring and human prayer. See here. I am fortified by a post by Matthew L. Skinner (an Associate Professor of the New Testament at the Luther Seminary in St. Paul) on Taryn Mattice’s Facebook page that says, “Ross Douthat is starting to drive me crazy with his consistent sloppiness as a commentator on the American religious scene. It's easy to make fun of Spong, but to strongly associate him with the recent actions of the Episcopal Church USA is... just stupid.”

Douthout’s suggestion that the decline in liberal Christianity is caused by its liberalism is marred by the triumphalist implication that the Pope of his Roman Catholicism has been wise to steer the conservative course. Douthout does not discuss the staggering exodus of Anglo-Catholics from the Catholic Church. According to Putnam and Campbell in American Grace, the decline of Anglo-Catholics in Roman Catholicism is about the same as that experienced in mainline Protestantism (this decline is significantly disguised by Latin American immigration). They say that the second largest religious group in the United States is composed of those who have left the Catholic Church. And consider those who are left behind. They are notoriously polarized. But the majority of Roman Catholics seem to reject the authority of the leadership. The majority of Catholics in the pews reject most of the stubbornly conservative teachings of the Pope and the Bishops. They stay in the Church despite these teachings, not because of them (others, of course, stay because of them). Perhaps it is just me, but I think the crisis of authority within the Catholic Church is far more serious than the turmoil in the Episcopalian Church.

Diana Butler Bass maintains (see here thanks to Taryn Mattice for the link) that what is really going on is a loss of faith in all forms of institutional religion. I think the real story is quite complicated. Some leave churches because they are too liberal and some because they are too conservative; some leave because there has been change regardless of left/right tilt; some leave because of institutional stodginess, corruption, or beaurocracy.  And many stay. The sociology of religion defies simplicity and does not lend itself to the partisan posturing of Roth Douthout.

Most galling to me of all the Douthout claims is the assertion that the Episcopal Church (and liberal Christianity) offers little not afforded by secular liberalism. I wonder if anyone could walk into a Episcopal Church on a Sunday morning and mistake it for a secular gathering. Does Douthout really think that the sacramental life of a church is a meaningless charade? In this connection, consider Rowan Williams in response to Spong again, "I have never quite managed to see how we can make sense of the sacramental life of the Church without a theology of the risen body; and I have never managed to see how to put together such a theology without belief in the empty tomb. If a corpse clearly marked ‘Jesus of Nazareth’ turned up, I should save myself a lot of trouble and become a Quaker."

Does Douthout think that the faith experience and commitments of a congregational community are secular? Yes, there are secular aspects. But Douthout’s glib dismissal in comparing liberal Christianity and secular liberalism is journalistic malpractice.

Santorum, Kennedy, and Religion

Rick Santorum has recently attacked John Kennedy’s speech to the Houston Ministerial Association on separation of church and state. In some respects, if his interpretation of the speech is correct, he has a point. Santorum maintains that the separation of church and state should not be absolute, that there should be a role for people of faith in the public square, and that government should not be able to impose its views on people of faith. On these three points, he is at least partially correct. Separation of church and state has never been absolute in the United States. Religious arguments have always been made in the public square. “In God We Trust” appears on the coins. (Removing the slogan would be a political non-starter). In the absence of overriding reasons, government should not be able to restrict the actions of people of faith when it violates their free exercise of religion.

I assume that Santorum believes that there are limits on the free exercise of religion. I doubt that he would prevent government from restricting a religion that places human sacrifice at the heart of its liturgy. I do wonder whether he thinks that government should be able to give religious reasons for its actions. Our current system welcomes religious arguments in the public square, but requires that any government action responding to those arguments must be grounded in a fully adequate secular justification.

Finally, the reports of Santorum’s remarks do not discuss his position on the central issue in Kennedy’s speech. Kennedy was responding to the argument that as a Catholic, he would be taking his orders from the Vatican. In response, he took refuge in church and state constitutionalism. I think this was unsatisfactory. As a Catholic and as a President, he was required to act in a moral way as he understood morality so long as he could give a secular justification for his actions. The deeper question was what kind of Catholic he was. Most Catholics take the views of the Pope and the Bishops seriously, but if in conscience they cannot accept the teachings of church leaders, they do not. Kennedy’s speech should have emphasized that as President, he ultimately had to answer to his conscience, not the Pope’s. To put it another way, Kennedy’s speech should have emphasized freedom of conscience, not separation of church and state.

No doubt, Santorum rejects some statements of church leaders which he does not regard as official parts of the Magisterium. Perhaps he accepts all parts of the Magisterium. But I wonder if he believes he is required to accept all parts of the Magisterium regardless of what would otherwise be his personal views. Whatever the religious and moral merits of a position requiring acceptance of the Magisterium no matter what, it is a political cross that is rather heavy to bear. If Santorum believes that there is a strong role for moral conscience against church teachings (as Aquinas did, even if it led to excommunication), he should say so.  

cross-posted at religiousleftlaw.com

 

 

 

The Bishops' Response to the Obama Revision

In partial response to Bob's question, According to the Bishops, "It [the Obama revision] would allow non-profit, religious employers to declare that they do not offer such coverage. But the employee and insurer may separately agree to add that coverage. The employee would not have to pay any additional amount to obtain this coverage, and the coverage would be provided as a part of the employer's policy, not as a separate rider."
The Bishops apparently are objecting that the contraception insurance is not a separate rider."See http://usccb.org/news/2012/12-026.cfm
Even assuming the Bishops are correct in their characterization, this objection seems excessively precious to me. It seems to exalt form over substance. I do not see how this distinction gives rise to a morally serious objection involving religious freedom.

On the other hand, I do not believe the Obama revision applies to private for profit employers with religious objections. Although I recognize that by subscribing to the Taco Bell example, I will be thought by most people to have walked into outer darkness, I think it appropriate to honor those objections, if, but only if, there is no economic incentive for employers to make the objection. An employer (including religious hospitals and universities) should not economically benefit from a religious exemption. As I have previously argued, see here, the employers should be required to increase employees' wages by the amount the employers save because of a religious exemption. (With the possible exception of a very closely held business corporation, I would not expect that business corporations would have consciences to invoke).

The Bishops are concerned about self-insuring employers with religious objections and religious insurance companies. With respect to the former, I wonder how many of these are individuals who have consciences and how many are business corporations that as artificial entities who do not. If they are individuals with a good faith objection, I would compel them to increase wages by the amount they would save from a First Amendment exemption and have the government provide social insurance. 

As to the latter, I would like to know about religious insurance companies. I have not heard of them. My tendency is to think that business corporations have no free exercise rights, but if there is an unincorporated insurance company run by a private person, I would balance the free exercise interest against the government interest, and the possibility of alternatives. But I think more facts are needed here to analyze the factors.

I conclude by noting again the irony that amidst the internet explosion surrounding Obama's insensitivity to free exercise interests that little attention has been paid to the fact that the award for constitutional insensitivity to religious freedom still belongs not to President Obama, but to the conservative's favorite justice: Antonin Scalia. 

 

 

A Solution to the Contraception Insurance Issue

The administration has signaled that it is looking for a compromise to the contraception insurance issue. How about this? Those employers who conscientiously oppose providing contraception insurance to their employees should not be able to profit from a religious exemption. Accordingly, the employers should be required to increase employees' wages by the amount the employers save because of a religious exemption.

The employer might not want to pay higher wages, but could have no serious religious objection to the requirement. Employees could use the money to purchase insurance for contraception if they wished or for other purposes at their option.

From the perspective of the administration, this proposal has a disadvantage. A major reason for requiring employers to include contraception as a part of their insurance was to encourage greater use of preventative services by employees. One way to mitigate this disadvantage would be to afford a tax deduction for the premiums required to purchase contraception insurance. The fringe benefit of insurance was not taxable in the first place. Indeed, from the perspective of the administration, it would make sense to make all contraception expenses tax deductible or, alternatively, even a tax credit. If the evidence showed that tax policy of this character would increase contraception, we could expect abortions to decline in turn. Of course, the Catholic Church would oppose any such tax policy on moral grounds, but it could not argue that the policy would violate its religious freedom.