Mirror of Justice

"Human Dignity was a Rarity Before Christianity"

Also from the Church Life Journal, here's David Bentley Hart:

We speak today very easily, if not always sincerely, of the intrinsic dignity of every human person. For us, this is merely a received piety, and one of immemorial authority. And yet, if we take the time to wonder just how old a moral intuition it is, there is a good chance that our historical imagination will carry us only as far back as the “Age of Enlightenment” and the epoch of the “Rights of Man.” But our modern notion that there is such a thing as innate human worth, residing in every individual of every class and culture, is at best the very late consequence of a cultural, conceptual, and moral revolution that erupted many centuries earlier, and in the middle of a world that was anything but hospitable to its principles. And I am tempted to think that the nature of that revolution became visible for the first time only in the tale of Peter’s tears. . . .

"Why Is Christian Citizenship a Paradox?"

An (as usual) interesting piece from the Church Life Journal, published at Notre Dame.   Here's a bit:

. . . We often wonder whether the Christian faith entails a political doctrine, as it does a social one. This question is not relevant. For if Christians necessarily practice their citizenship, if there is such a thing as Christian citizenship, it does not designate a political regime which might be specifically Christian, in virtue of the following principle: “My kingdom does not belong to this world (John 18:36). In belonging to Christ, Christians belong to a kingdom which does not belong to this world but rather to God, a kingdom which has no necessary or even privileged political expression. Christianity does not entail any particular political doctrine, whether it be established or competing with it—and thus always of the same nature as itself: Christians live in the city without belonging to it and without supporting a competing political doctrine. The question of Christian citizenship is not one of which political doctrine might be derived from Christianity, but rather one of its very absence. Christianity does not consist of promoting or practicing a political doctrine in any way: it is essentially a way of living in the city. . . .

. . . Far from entailing a theocratic doctrine which would confer temporal power upon the ministers of the will of God, Romans 13:1 theorizes, beyond the relationship of the Christians to the law and the state, the main conditions of the common good as a universal good. These conditions, which I analyze in detail in my book, are threefold: the non-idolatry of power, the search for peace, and the respect for freedom, first and foremost religious freedom. However, they may also be summarized in a single condition: the patience of love. By the end of this work, the Pauline reference to the will of God completely loses its status of an “anti-democratic transcendence.” On the contrary, it becomes clear that it theorizes the conditions of a true democracy, if one thinks, following Claude Lefort, that a true democracy is not first and foremost a political regime and that the impossibility of appropriating power to oneself is its fundamental condition.[25] Only then might one consider that Christian citizenship, which has no necessary or even privileged political expression, nevertheless favors the establishment and preservation of a form of government and society that can be conceived of today as the best guarantee of the universal common good.

Legal Spirits 002: The Peace Cross Case

Mark Movsesian and I have our second Legal Spirits podcast up. This one is about the cert. grant in the so-called "Peace Cross" case out of Maryland. The 2-1 opinion in the Fourth Circuit was American Humanist Association v. Maryland-National Capital Park and Planning Commission.

Mark and I go through the facts (some of which are contested), the circuit opinion, the cert. petition, and the arguments about the Establishment Clause in these state-sponsored religious display cases likely to be confronted by the Supreme Court.

English translation of my interview in La Nuova Buss la Quotidiana (Italy) November 14, 2018

Question 1: Our society is defined as a "society of rights and freedoms", in which everyone can see legally recognized every will to obtain something (it is enough to desire something for it to be considered a right). Yet there has never been a more illiberal society than ours, in which it is enough to think that this approach to right and law is wrong to undergo trials or to be dismissed. Why?

RPG:  It is a mistake to define our society as merely “a society of rights and freedoms.” And it is nothing short of absurd to imagine that desiring something generates a right to it. The identification of true human rights and honorable liberties requires disciplined reflection on the nature, dignity, and goods of the human person and, relatedly, on the requirements of justice and the common good. That kind of reflection will reject the voluntarist theory of rights. It will conceive rights as protecting basic aspects of the well-being and fulfillment—the flourishing—of human persons. It will ground the right (and “rights”) in the good (and goods), rather than supposing that the right (and specific rights) can somehow be identified and rationally affirmed apart from reflection on the fundamental goods of human nature that rights, properly understood, protect.

When we understand and approach correctly the relationship between rights and human goods, we avoid falling into the illiberalism that is the fruit of the voluntarist conception of rights (and ethics generally) that is dominant today among secularist progressive elites. For example, when we understand the right of free speech as protecting the values of truth-seeking and democracy, we will have a greater respect for that right and a keener sense of its importance than is common today among the cognoscenti.  On this point, I would invite readers to see this statement I have released together with my friend and teaching partner Professor Cornel West:  https://jmp.princeton.edu/statement

 

Question 2: Why does the fact of recognizing certain rights based on the will and that, therefore, have nothing to do with the natural law, automatically produce the discrimination of the rights to life, to the freedom of expression of faith of other people?

RPG:  The voluntarist conception of rights is intellectually indefensible, indeed hopeless. It justifies nothing, but can provide a rationalization for anything. Where anything can be rationalized, the interests of those holding power will be served by dressing up their arbitrary exercises of will—even the most oppressive—in the language of ethics. Where, as in modern western societies, what Professor Mary Ann Glendon calls “rights-talk” enjoys special prestige, illiberal policies and activities (such as exposing unborn babies to the lethal violence of abortion and criminalizing the expression of dissent from unjust or otherwise morally unsound policies) will be defended in that language. What my great friend Rabbi Lord Jonathan Sacks says of the gross evil of anti-Semitism can be said any form of grave injustice: It will always be rationalized by its perpetrators in the language of the dominant discourse of the day.


Question 3:  We celebrate the declaration of human rights, whose language has also been assumed by the Church, but how come that since the Enlightenment proclaimed them, the right of life, social solidarity, the idea of the common good and the family weakened so much?

RPG:  It is a long and complex story—one that we must be careful to avoid oversimplifying. The best, most comprehensive account I know is in a forthcoming book by the American legal scholar Stephen Smith entitled Pagans and Christians in the City. I myself had the honor of providing a Foreword for Professor Smith’s book. He charts the collapse of formerly Christian cultures into modern forms of paganism as they gradually lost their sense of the transcendent and began searching for meaning—and, indeed, the sacred—in purely worldly (immanent) things. Emotivism, expressive individualism, “me-generation” ideas about sexuality and the recreational use of drugs, what the late Christopher Lasch labeled “the culture of narcissism,” are all consequences (as well as partial and further causes) of the loss of the sense of the transcendent. In the new religion of immanentism, such things as abortion, divorce, and promiscuity are defended as if they were sacraments because seeking personal “fulfillment” (i.e. gratification, the satisfaction of desire), especially in sex, has been sacralized. In this context, the family weakens along with all other social bonds. The idea of unchosen moral obligations—an idea upon which true solidarity critically depends—becomes unintelligible and is perceived as arbitrary imposition.

 

Question 4: What are the rights most in danger in the West and what effects does a world in which the natural law is violated produce?

RPG:  The right to life of the unborn child, the newborn child, the cognitively impaired or physically disabled individual, the frail elderly person—these are all in jeopardy. Similarly, religious freedom and the rights of conscience (together with the related right to freedom of thought and expression) are in peril, as are the rights of children to a morally healthy upbringing and the rights of parents to direct the upbringing and education of their children. Where will replaces reason, where disciplined inquiry into the goods of human nature and the dignity of the human person is cast aside in favor of the identification of wants or desires with reasons and even “rights,” the only question will be who has the power to impose his arbitrary will on others. The efforts of those on the left to impose their ideology will inevitably produce a backlash from the right. Civil discourse and respectful engagement between the disputants becomes impossible—and soon is not even regarded as desirable. Neither side seeks truth, but only victory—“by any means necessary.” We descend into a Nietzschean nightmare.

 

Question 5: Many are persuaded that it is no longer necessary to talk about natural law. They claim that the world can no longer understand this language, since nature is now misunderstood by modern reason. Do you think that the new generations are able to start from this or that the approach towards them should be different, and for example start from the goodness of the Creator to then understand the goodness of his law?

RPG:  Having taught thousands of intellectually gifted young men and women at Princeton and Harvard over a period of more than thirty-three years, I can tell you that there is a great hunger for authentic reason. We must not misunderstand or underestimate our young people! They are fully capable of reasoning about human nature, the human good, human dignity, and human destiny. They simply need to be invited and encouraged to do it. And they need a certain amount of guidance. Happily, we need not rely exclusively on ourselves to provide that guidance. The great teachers of mankind, from Plato and Aristotle, to St. Augustine and St. Thomas Aquinas, to Rev. Martin Luther King, Elizabeth Anscombe, and Mahatma Gandhi are there to help us and our sons and daughters.  And there are many other great thinkers—from East and West alike—who are available to assist. We begin the process of education simply be exposing our students to these teachers and intellectual role models. Many of my students first learn about the concept of natural law from reading Martin Luther King’s Letter from Birmingham Jail. It teaches them that there must be a “higher law,” a law of reason itself, above the merely human (or positive) law, if unjust laws (such as laws rooted in racism) are to be identified as unjust and condemned as such. Many first encounter the critique of the contraceptive mentality and population control by reading Gandhi. Many are first exposed to the philosophical defense of chastity by reading Anscombe. Those who read John Finnis’s work, especially when complemented by the writings of the Greek philosophers, Roman jurists, and medieval theologians, come to appreciate the intellectual power—and contemporary relevance—of natural-law theory. So, based on my own long experience as a teacher, I scoff at the idea that “the world can no longer understand” the language of natural law. Now, this does not mean that other approaches to instruction in ethics and political philosophy have no place or usefulness. On the contrary, I encourage theological approaches, for example, so long as they are not proposed as the only way to teach ethics, or the only way that students today can be reached. To propose that we must make a definitive choice between natural-law theory and theological approaches to morality and moral questions is to commit the fallacy of proposing false alternatives.

Disagreeing with the Washington Post editors about statutes of limitations

It is, of course, entirely sensible for Catholic and non-Catholics alike to be angry, even disgusted, at the way many bishops and other Church leaders have mishandled credible allegations of sexual abuse and exploitation by clergy.  However, one response to this mishandling that I believe is sometimes thrown around (not only by trial lawyers but recently and several times by The Washington Post) too cavalierly is lifting/extending/re-opening/etc. statutes of limitations on lawsuits and prosecutions. 

Certainly, it would be unjust to make changes to limitations periods in a way that only affected Catholic clergy or dioceses.   (See this 2005 Mirror of Justice post.) And, these limitations provisions generally have "built in" to themselves or are subject to judge-made tolling rules of various kinds.  The statutes' protections are not and should not be absolute.  But, it is important to remember, that -- like the procedural safeguards we use in all kinds of contexts, including cases involving very serious offenses -- these rules reflect and serve crucial, fundamental due-process and fairness values.  It seems to me that, if they are to be revised, any such revisions should proceed deliberately and fairly, with appropriate consideration of the goods they serve. 

CEC Panel on Shield or Spear? The Power of Speech

Apropos of the exchange below concerning liberalism and Catholicism discussed by Rick and Adrian, and in particular with respect to Rick's suggestion that Michael Moreland might represent the missing Murray option, here is a discussion that Michael, Rick, and I had concerning the state of free speech in the US at the conference where all of the other thinking and talking was going on. 

It does not address the central issues of those other interactions directly. But it does so at least obliquely. You can get a sense for some of the range of that disagreement (but also for many areas of agreement) in the different positions that we each hold.

New paper: "The Sickness Unto Death of the First Amendment"

I’ve posted a new draft, forthcoming in the Harvard Journal of Law and Public Policy: The Sickness Unto Death of the First Amendment. Here is the abstract.

The sickness unto death, in Søren Kierkegaard’s work of the same name, is the anxiety and despair an individual experiences in recognizing that the self is separated from what is collective, extrinsic, or transcendent. Something like this condition now afflicts the First Amendment. The sickness unto death of the First Amendment is that the spectacular success of free speech and religious freedom as American constitutional rights on premises of liberal, individual autonomy has been the very cause of mounting and powerful collective anxiety. The impressive growth of these rights has rendered them fragile, if not actually unsustainable, in their current form. Their unprecedented expansion has brought on an awareness of their emptiness in serving the larger, common political good. The yearning for political community and shared purpose transcending individual interest has in turn generated vigorous calls for First Amendment constriction to promote what are claimed to be higher ends — in some cases ends that were promoted by the hypertrophy of the First Amendment itself.

What binds these claims is the view that expansive First Amendment rights harm others or are more generally socially or politically harmful. In some cases, the same people who argued for the disconnection of free speech rights from common civic ends are now advocating free speech constriction to reconnect free speech to new ends said to be constitutive of the American polity. The same is true for religious freedom. But in a society that is deeply fractured about where the common good lies, imposing new limits on First Amendment rights in the name of dignity, democracy, equality, sexual freedom, third party harm, or any of the other purposes championed by the new constrictors is at least as likely to exacerbate social and civic fragmentation as to reconstitute it.

This paper describes the development of the First Amendment — and in particular of its ends and limits — through three historical periods. Part I concerns early American understandings, which conceived rights of free speech and religious freedom within an overarching framework of natural rights delimited by legislative judgments about the common political good. Part II traces the replacement of that framework with a very different one in the twentieth century, describing the judicial turn toward self-regarding justifications of speech that prioritize individual autonomy, self-actualization, and absolute anti-orthodoxy. The paper describes the crisis or despair of free speech and the coming of the First Amendment constrictors in Part III. It concludes briefly in Part IV by recapitulating the parallel paths of the rights of free speech and religious freedom. It is, in fact, remarkable that over the centuries, some of the most prominent justifications for and objections to the scope of these rights have proceeded pari passu and assumed nearly identical shape.

More on the Fall Conference, liberalism, and integralism

Here is a substantial post, at the Semiduplex blog, addressing the panel discussion that closed the Notre Dame Center for Ethics & Culture Fall Conference.  I'm still (!) mulling over what I thought about the conversation, but I encourage MOJ readers to watch it (or read about it).  I did have a sense that there was a missing "voice" or perspective, although I'm not entirely sure how to describe the position or stance I'm thinking of.  (Maybe Maritain/Murray/Wojtyla?  Maybe Michael Moreland!)

Thomas Oden

When Whittaker Chambers abandoned communism, he said to his wife “you know, I am leaving the winning side to join the losing side.” When the late Thomas Oden, under the influence of his Jewish friend and academic colleague Will Herberg, abandoned liberal or progressive Christianity to return to Christian orthodoxy, he harbored in his heart no such lament.  He knew that the victory he wanted—the only victory that matters—had already been won. It had been won nearly two thousand years earlier when Jesus offered himself as a sacrifice on a Roman cross at Golgotha for the remission of our sins and was raised by his Father from the dead. Christ’s triumph over sin and death really was, as far as Tom Oden or any other orthodox Christian was or is concerned, the only victory that matters. And that means we can dispense with any thought of being on the right or wrong side of history—the thing theological progressives and, indeed, all progressives worry about—and instead focus our attention, as Tom focused his—once the scales had fallen from his eyes—on getting on the right side of truth, which is to say, getting oneself on to the side of the one who said “I am the way, and the truth, and the life.”

But siding with Jesus for Tom Oden, or for any of us, was and is a costly form of discipleship—especially for those who aspire to professional success in the culture of the contemporary academy.  This is true especially of the theologian. For in an environment of deep and bitter hostility to Christian orthodoxy, the theologian is suspect from the start—simply because of his or her academic field. The temptation for the Christian (or Jewish or other theologian) is to be “purer than the pure”—which is to say, more secular than the secular, more liberal than the liberal—lest one frighten the horses and be made an example of. And yet Tom was willing to take the risk and, if it came to it, make the sacrifice. He was willing to be scorned and rejected, to take up his cross, as it were, and follow Christ.

Why? How?

As an orthodox Christian, Tom possessed and richly exemplified the theological virtue of hope. That was the quality of character that helped enable him to recognize that he was in no sense “joining the losing side.” And yet, he was a realist, a man of the world. He knew that there would be costs to his discipleship, risks, sacrifices. He knew that embracing Christian orthodoxy would render him highly suspect among the very people on whose good opinion his professional standing, future, and prospects for success rested. He knew that his orthodoxy—or what came in his case to be known as paleo-orthodoxy—would cost him professional opportunities and relationships and even treasured friendships. Indeed, because he had, before his change of heart, been a theological liberal—and a well-known and highly credentialed partisan of, and activist for, theological liberalism—he knew he would be regarded not only as a "fundamentalist" but also as a turncoat, a betrayer, the very kind of person who gives theologians a bad name, and who renders them suspect, among their unbelieving academic colleagues.

Moreover, he knew he would lose the standing he had as something of a big wheel in such organizations as the World Council of Churches. These organizations, like many of the denominations associated with them, had done what Tom himself had done. They had retained the forms and institutional structures of Christianity but replaced the substance of the faith with dogmas and practices drawn from secularist ideologies, such as those developed and promoted by figures from Marx and Freud to Beauvoir and Marcuse. In the crucial domain of ethics they had, to a greater or lesser degree, embraced an essentially Benthamite utilitarian view under the label “situation ethics.” Pastoral practice became reduced to secular psychological counseling ("therapy") as Christian content was evacuated from it. Tom had been on board with all of this, but he turned against all of it when he experienced his midlife change of heart. Marx and Freud were replaced by Athanasius and Augustine. The situation ethics of Joseph Fletcher, Tom abandoned in favor of the demanding but ultimately liberating ethics of the Gospel of Jesus Christ.

When it came to pastoral practice—the field in which Tom had built his reputation in his early years--Tom stopped looking to Freud and Carl Rogers and instead turned to Nemesius, Vincent of Nerins, and Gregory the Great. Truly, in the case of what Tom candidly described as his conversion from a form of neo-paganism with a merely Christian veneer to faith in Jesus Christ, his guides—the tools used by God in His providence to bring home a prodigal son--were the early ecumenical councils and the fathers of the Church. The brilliant young man whose early interests were in existential theology of the sort exemplified in the de-mythologizing program of Rudolf Bultmann, came to be shaped intellectually and spiritually by the likes of John Chrysostom and Justin Martyr.

In his moving and remarkable memoir, A Change of Heart, Tom reflected on his intellectual and spiritual odyssey.

I went into ministry,” he said, “to use the Church to elicit political change according to a soft Marxist vision of wealth distribution and proletarian empowerment.”

"I was floating on the wave of secularization. Theologians were undertaking the ironic task of deconstructing the old religion in order to create a new religion. I functioned as a movement theologian, continuously shifting from movement to movement toward whatever new idea I thought might seem to be an acceptable modernization of Christianity.”

For this, Tom would reproach himself intensely. “I had,” he said, “drifted towards a Christ without a cross and a conversion without repentance.”

"Sadly, I had participated directly in the emasculating of many vitalities of the classic religious tradition I had received. In the early 1970s, I became a political penitent, keenly aware of the destructiveness of my former political history . . . I made effort to restore what had been damaged. Conscience required that I do what I could to repair the systems I had harmed."

It is important to understand that Tom did not repudiate every cause in which he had been involved in his earlier years. Above all, he continued to believe in and support the civil rights movement and its efforts to overcome a long and deplorable history of racial prejudice and injustice. He also continued to believe in what he would call “Christian feminism,” an approach to women and relations between the sexes that fully honored the dignity and equality of women while rejecting the sexual revolution and the radical feminism of figures such as Beauvoir and Friedan. In a section of his memoir entitled “Making Reparations,” he says:

"My past visions of vast plans for social change had irreparably harmed many innocents, especially the unborn. The sexually permissive lifestyle, which I had not joined but failed to critique, led to a generation of fatherless children. The political policies I promoted were intended to increase justice by political means but ended in diminishing personal responsibility and freedom. Many of the seemingly humane psychological therapies I had supported may have made people more miserable, less able to choose wisely or to seek the virtues required for happiness."

          Note the words “especially the unborn.” The increasing clarity of Tom’s perception of the inherent and equal worth and dignity of every member of the human family—irrespective of race, ethnicity, or sex, but also irrespective of age, size, stage of development, or condition of disability or dependency—was both a partial cause of his conversion and an effect. Abortion had become a central cultural and political issue in the years leading up to Tom’s change of mind and heart, and initially he supported the practice—something that he would soon regret and truly bitterly reproach himself for.

"Prior to the time of my turnaround, I had been teaching social ethics to young pastors. In classes I had been providing a rationale for their blessing convenience abortions. I had not yet considered the vast implications of its consequences for women, families, and society, but most of all for the lost generation of irretrievably aborted babies. When I tried to explain to God why I had ignored those consequences, the answer kept coming back to me:  no excuse. I had been wrong, wrong, wrong. The situation ethics on which those abortion arguments were made were unprincipled and careless of human life . . . I experienced an overwhelming wave of moral revulsion against the abortion-on-demand laws I had once advocated."

Tom made no excuses for himself. He offered no extenuating circumstances, no mitigating evidence. He was, he says, “wrong, wrong, wrong.” And for his delinquency, he had “no excuses.” Given such profound and sincere repentance, no Christian can doubt that God forgave Tom, and I’m sure that Tom, as I faithful Christian, knew he was forgiven. But he never stopped reproaching himself for the role he had played as an advocate of abortion in exposing unborn children to the lethal violence of deliberate feticide. And he bravely, selflessly, and resolutely sought to rectify the wrong he had done by becoming an advocate within his own denomination (the United Methodist Church) and more broadly for the right to life of the precious child in the womb.

          After his conversion from liberal to classical Christianity (a conversion Tom referred to simply as his conversion to Christianity), his scholarly work came increasingly to focus on the fathers of the Church, especially those from north Africa, such as Athanasius, Augustine, and Cyril of Alexandria. As far as he was concerned, the kind of “progress” in Christian theology that was worth making could best be made by recovering and developing the insights—especially pertaining to pastoral practice, or what Tom called “soul care”—of the great thinkers and teachers of the early Church. Tom also strongly believed in the importance of understanding and appreciating the contributions that Africans had made to the development of Christianity—from the very beginning. And he strongly encouraged African and African-American scholars and religious leaders to assist in the project of deepening our understanding and appreciation of African contributions to Christian theology.

          I’ve referred to Thomas Oden as “Tom” throughout this little reflection because he and I were friends. I got to know him in the early 1990s thorough the good offices of our mutual friend Richard John Neuhaus. I admired him for his intelligence, his integrity, his fierce devotion to truth, and his profound Christian witness. I am grateful to him for many kindnesses. Yesterday I had the pleasure of participating in a conference honoring him at Central Presbyterian Church in New York, where I offered the substance of this reflection. Eternal rest grant unto him, O Lord, and may perpetual light shine upon him.

Call for Papers: Notre Dame Center for Social Concerns Catholic Social Tradition Conference

Option for the Poor: Engaging the Social Tradition

2019 Catholic Social Tradition Conference 

March 21–23, 2019 | University of Notre Dame

The Option for the Poor conference will explore how the development and impact of this theological concept from the Latin American Church has been globally embraced by academics and practitioners to build a more just and humane world. If the moral test of society is how it treats vulnerable people, the signs of the times suggest there is significant room for improvement in communities around the world. By assembling experts in Catholic social ethics, the conference seeks to identify social issues and practical responses adequate to address the difficulty of resulting injustices.

 

Presenters should provide original and creative insights into the systemic problems faced by marginalized populations and how to address them through the lens of the Catholic social tradition. The Center for Social Concerns at the University of Notre Dame requests proposals and creative works regarding the development of the Catholic social tradition in the following areas:

— Historical development and critique of the social doctrine, and how Church mechanisms can support social change

— Identify present social issues and potential solutions in light of the Church’s teaching on the option for the poor

— How the Church can promote social action based on the option for the poor within today’s pluralistic society

Now accepting proposals for papers or creative works. Abstract is limited to 500 words. The deadline for submission is November 30, 2018.

More info here.

Notre Dame Center for Ethics & Culture host debate on "Catholicism and the American Project"

[Our own Adrian Vermeule provides this report from the (always excellent) Fall Conference of the Notre Dame Center for Ethics & Culture:]

The Center for Ethics and Culture Hosts the Debate

Last weekend, at an extraordinarily rich and instructive conference hosted by the Center for Ethics and Culture at Notre Dame, the closing panel was a conversation among Patrick Deneen, Phil Munoz, Gladden Pappin and myself, acutely moderated by Carter Snead. The set theme was “Catholicism and the American Project.”

As the video of the discussion shows, each of the panelists interpreted this theme differently and thus began from a different point. Deneen took it to mean “Notre Dame and the American Project,” and began by discussing their relationship. Munoz took it to mean “The American Project and Catholicism,” and began with an explication of the (putative) liberal virtues of the Constitution of 1789. In different ways, both Pappin and myself took it to mean “The Catholic Church and the American Project” — Pappin beginning with a general account of integralism and its relationship to ecclesiology, myself with an attempt to explain Leo XIII’s providential vision for an integral Church in America, and his condemnation(s) of the errors of Americanism.

I won’t indulge myself in any more spoilers, but here is a good straightforward report by Rod Dreher, and a clarifying take from Pater Edmund Waldstein. Enjoy!

Legal Spirits Podcast: "A British Version of Masterpiece Cakeshop?"

I'm pleased to announce that our Center's new podcast series, Legal Spirits, is underway!

In this first podcast, Mark Movsesian and I chat about the "British Masterpiece" case, Lee v. Ashers Baking Co. decided by the UK Supreme Court a few weeks ago, and we speculate about what its reasoning might suggest for future cases in the US of this kind.

Legal Spirits podcasts will address a broad range of interesting cases, issues, and ideas involving law and religion. Look for our next one about the recent 4th Circuit Establishment Clause cross case just taken by the Supreme Court, the consolidated The American Legion v. American Humanist Association/Maryland-National Capital Park and Planning Commission v. American Humanist Association.

"Inmate gets his wish, and gets executed"

Here's a news story on a recent "death-row volunteer" case:

A death row inmate who participated in the Special Olympics as a child wanted to be executed. But a lawyer—not his lawyer, another one—wanted to save him.

The U.S. Supreme Court Oct. 29 effectively took the inmate’s side in the unusual dispute, permitting Rodney Berget’s execution to go forward. South Dakota officials killed him that night.

Berget had testified at sentencing that he knew he was “guilty of taking Ronald Johnson’s life,” referring to the victim corrections officer he killed while trying to escape a previous prison stint. “I’m not going to beg the court or ask the court to spare my life,” he said. “I believe I deserve the death penalty for what I’ve done.”

I wrote an essay, a while back, on the issue of such "volunteers", on legal ethics, on my own experience with such a case, and on Catholic Social Thought.   Here's the abstract:

What should lawyers think about and respond to death-row volunteers? When a defendant accused of a capital crime attempts to plead guilty, or instructs his lawyer not to present a particular defense; when a convicted killer refuses to permit the introduction of potentially life-saving mitigating evidence - or even urges the jury to impose a death sentence - at the sentencing phase of a death-eligible case; when a condemned inmate refuses to file, or to appeal the denial of, habeas corpus and other post-conviction petitions for relief; when he elects not to object to a particular capital-punishment method, to call into question his own competence to be executed, or to file an eleventh-hour, last-ditch appeal citing newly discovered evidence of his innocence -what should lawyers do?

These are not questions of merely professional interest, narrowly conceived, for lawyers and judges. That said, the death-row volunteer is of particular interest to lawyers because he poses particularly chilling problems for lawyers. It is suggested in this paper that something is missing from our thinking and conversations about the death-row-volunteer problem: Our arguments - which sound primarily in the register of choice, competence, and autonomy - reflect and proceed from an unsound moral anthropology. That is, they proceed from a flawed account of what it is about the human person that does the work in moral arguments about what we ought or ought not to do and about how we ought or ought not to be treated. The unfortunate result is that the professed commitment to human dignity that drives and sustains so many capital-defense lawyers is often undermined by these same lawyers' responses to death-row volunteers.

Cardinal Zen on the Holy See / China Agreement

This editorial, titled (perhaps more tendentiously than the author would have preferred) "The Pope Doesn't Understand China", by Cardinal Zen, appeared recently in The New York Times.   I share some of the author's concerns.  (Certainly, foolish statements about condition in China like those of  Bishop Sorondo -- here -- do not inspire confidence in the soundness of the advice that Pope Francis is receiving on this topic.)  Although some diplomatic flexibility and procedural adjustments could well be warranted, in order to make the best of a bad situation and provide the best possible pastoral care to Catholics living in the PRC, it does not seem to me that there are reasons for optimism about China's regime when it comes to religious and political freedom.  Indeed, the evidence seems overwhelming that things are getting worse.

But . . . I know that some MOJ-ers disagree and/or think that I'm being too pessimistic.  (I'll admit being attracted to Mel Brooks's sound advice, "Hope for the Best, Expect the Worst.")  We'll see.

Gosnell: "When the Truth is Hard to Watch"

An up-and-coming film critic at the University of Notre Dame -- one Maggie Garnett -- has an eloquent and powerful review of the Gosnell movie up at The Rover.  Highly recommended!  A taste:

All women deserve better than abortion.

Do we avoid watching this movie because it conflicts with our beliefs? Because it makes us uncomfortable? Because it is disturbing? It’s undeniable that Gosnell is a pro-life movie and its content can be disturbing, but it is a movie that every single person should see. Yes, Dr. Gosnell is representative of the worst abuses of doctors in the abortion industry. Yes, the vast majority of clinics perform only legal abortions. Yes, the vast majority of clinics ensure only licensed physicians and nurses are administering treatment and medication. Yes, the vast majority of clinics keep their facilities clean and women safe. But the reality of the most careful, legal, and sterilized abortion is still the death of a human being, often following the choice of a mother who is frightened and feels as if she has no other option. The reality of all abortions is disturbing, heart-wrenching, and gutting.

Perhaps it takes a monster like Kermit Gosnell to move hearts and minds to recognize the reality of abortion, whether performed illegally or by the letter of the law.

The seats in the courtroom at Kermit Gosnell’s trial were largely left empty. It took a murder conviction to get people to pay attention. This movie, and its theater seats, should not be ignored in the same way.  It is a timely, powerful, and thought provoking film that cannot be set aside.

Position of possible interest to MOJ readers

We are looking for a new Program Manager for the Terrence J. Murphy Institute for Catholic Law, Thought, and Public Policy, which I co-direct.  The Institute is an interdisciplinary venture the University of St. Thomas the Center for Catholic Studies and the School of Law, working to engage the church, the academic community, and the public in rigorous discussions that bring historical and contemporary Catholic perspectives to bear on debates in law and public policy.  From Augustine and Aquinas to Galileo and Thomas More, on to Montesquieu, Mother Teresa, Saint John Paul II and Pope Francis, the vibrant programs of the Murphy Institute plumb the interdisciplinary riches of the Catholic intellectual tradition and draw upon other academic disciplines and faith traditions to engage the church and community, facilitate scholarship, provide public policy analysis, and support student scholars.

 A link to the job posting is  HERE.

Jesuit Universities, the Pro-Life Issue, and the Institutional Examen

 

In a recent post at the America Magazine website, John J. Conley, S.J. asks “Can A Pro-Life Scholar Survive in Academia?”

In the piece, Conley recalls the experience of Stéphane Mercier, a lecturer in the philosophy department at the Université catholique de Louvain in Belgium.  Mercier gave a lecture in February 2017 entitled “Against the Alleged Right to Choose Abortion” in which he argued that it is morally wrong to engage in the direct killing of an innocent human being, and that the act of abortion is precisely this kind of killing.  He also buttressed his argument “with philosophical refutations of common pro-choice theses.”  And yet, as Fr. Conley recounts, as a direct response to this lecture, Mr. Mercier was suspended from teaching at Louvain and told that his contract would not be renewed.

In a public statement the Université catholique [sic] de Louvain assured the public that Mercier’s lecture was “in contradiction with the values supported by the university.”  The bishops who comprise the University’s Board of Governors—including the Archbishop of Malins-Brussels who serves as Grand Chancellor of the University—offered no support and “declared that they would not intervene in the case.”  A spokesman for the bishops objected to Mr. Mercier’s “inflammatory rhetoric,” namely, referring to abortion as “murder.”

It is difficult to see how Mercier’s description of abortion as “murder” is not in keeping with Louvain’s “values” as a Catholic university given that the Catholic Church has, at the highest levels of its teaching authority, referred to abortion as an “infamy” (Gaudium et Spes ¶ 27), an “unspeakable crime” (Id. ¶ 51), and, indeed, “murder” (Evangelium Vitae ¶ 58).  One wonder’s what the administrators at Louvain must think of Pope Francis’ recent comment that going to an abortion doctor is “like hiring a hitman.”

Certainly, there are, as Michael Perry has explained, prudential decisions that the person arguing against abortion must make in describing the act that he or she opposes.  The rhetoric one employs can profoundly affect how the conversation proceeds.  If one’s goal is to persuade another person who supports “a woman’s right to choose,” it may well be imprudent to describe abortion as “murder” since this may end the exchange before it has had a chance to really begin.  Persuasion is not simply a matter of the truth of one’s premises, logical validity, and the coherence of one’s argument, though each of these is important.  Persuasion is also a matter of trust and good faith – belief that the interlocutors are not really opponents, but people who may approach the topic from different points-of-view, but who are ultimately engaged in a shared enterprise.

So, while Mr. Mercier’s choice of words may or may not have been imprudent and off-putting to his audience, given the Catholic Church’s unshakeable commitment to the sanctity of every human life from conception to natural death, it is difficult to see how Mr. Mercier’s thesis was “in contradiction with the values supported by the university” insofar as the Université catholique de Louvain claims to be Catholic.

The Belgian bishops decision not to intervene in the inner workings of the University is in keeping with the respect that the hierarchy has shown for the autonomy of Catholic universities since the Second Vatican Council.  The Land O’Lakes Statement, signed by the representatives of sixteen Catholic universities in North America, was, as Alice Gallin, O.S.U. described in her book Negotiating Identity, a “declaration of independence from authorities outside the university” including church officials (p. 129).  In the Land O’Lakes Statement, the signatories declared: “[T]he Catholic university must have a true autonomy and academic freedom in the face of authority of whatever kind, lay or clerical, external to the academic community itself” (§ 1).

Later, in the Apostolic Constitution Ex Corde Ecclesiae, Pope John Paul II likewise recognized that every Catholic university must possess the “institutional autonomy necessary to perform its functions effectively and guarantees its members academic freedom, so long as the rights of the individual person and of the community are preserved within the confines of truth and the common good” (¶ 12).

A bishop can, of course, simultaneously respect the institutional autonomy of a Catholic university and call out the university for its failure to understand and live its Catholic identity.  Indeed, the bishop could even call out the university for its failure to honor the principle of academic freedom.  Here, Louvain failed to uphold both the University’s claimed Catholic identity and the principle of academic freedom in spectacular fashion.  

Catholics in the academy who seek the assistance of their bishops in upholding the Catholic identity of the institutions where they serve are accustomed to disappointment.   But it is not impertinent to suggest that Catholic bishops should offer fraternal correction to the Catholic universities within their dioceses when these institutions misstate the nature of Catholic identity and undermine that identity by their actions. 

Thus, although Ex Corde recognizes that “[t]he responsibility for maintaining and strengthening the Catholic identity of the university rests primarily with the university itself” (art. 1, ¶ 1), it also provides that “[i]f problems arise concerning this Catholic character, the local bishop is to take the initiatives necessary to resolve the matter” (art. 5, ¶ 2).   Likewise, the Code of Canon Law provides that the local bishop has the authority to determine that a university may not “bear the title or name of Catholic university” (Canon 808) where the institution fails to manifest an authentic Catholic identity.

The examen is a fixture in Jesuit spirituality – a method of prayer that St. Ignatius taught in in his Spiritual Exercises.  The person who takes up the examen is invited to place him or herself in God’s presence; recall the different moments of the day; reflect upon what he or she did, or said, or thought in those instances and whether those occasions drew the person closer to God or further away; and reflect on how to collaborate more effectively with God’s plan in the future.  Thus, when taken up earnestly and with sincerity of heart, the examen can be a method of real self-improvement, moving closer to God and to fulfilling the specific vocation he has entrusted to each of us.

Recently the Association of Jesuit Colleges and Universities (AJCU) published Some Characteristics of Jesuit Colleges and Universities: A Self-Evaluation Instrument.  The document was prepared as a kind of institutional examen.  The AJCU intends for it “to be used by Jesuit universities and colleges in the United States as a tool for self-improvement, particularly with regard to their fulfillment of their Jesuit and Catholic identity” (p. 1).   Thus, the document’s method of proceeding is to pose a series of questions centered around a number of characteristics that Jesuit colleges and universities ought to manifest.  

One of these characteristics is the responsibility of the University’s leadership to “competently communicate[] and enliven[] the Jesuit, Catholic mission of the institution” (p. 5).  Here the document acknowledges, albeit implicitly, that Jesuit universities have a problem with fulfilling their mission because they have a problem of personnel.  Because they are committed to a standard of “excellence” Jesuit universities “adopt the standards of the academy that value scholarly productivity . . . while devaluing an integrative understanding of knowledge that is rooted ultimately in transcendent questions” (p. 7).

Even in those instances where institutions are successful in hiring Catholic leadership, the majority of our lay people come without adequate formation or interest in learning about and implementing the mission beyond humanistic concerns, like “care for the person” or a “commitment to service.”  In the absence of a “thick” understanding of the tradition, these good and well-intentioned leaders will be uncertain about how to hire faculty and administrators who explicitly engage the university’s mission and establish and promote programming that links directly to our Jesuit, Catholic identity.  How does the institution hope to address this issue?  

This is the question that will be determinative of the future of Jesuit and Catholic higher education.  Without faculty who know and embrace the intellectual tradition and carry it forward in their teaching and research, Jesuit and Catholic higher education will cease to exist.  The name “Jesuit” may remain on the door, but it will cease to be a meaningful descriptive.  It will stand as an empty epithet, a phrase hollow of any significance other than as a merely historical reference.

A cynic, born of experience, might conclude that the exercise of going through the institutional examen is just another example of what James Burtchaell, C.S.C. described in The Dying of the Light as “the untiring Jesuit energy for self-study” (p. 624).  Navel-gazing, whether Ignatian or otherwise, is a useless exercise.  It is not genuine self-reflection and it cannot lead to genuine change.

In his post, Fr. Conley says that “over the years, I have heard accounts of appointments and promotions denied because of faculty members’ pro-life positions.”  Faculty and administrators who have no interest in navel-gazing, but who wish to make use of the examen as a serious opportunity for institutional reflection and reform might ask themselves: “Have qualified faculty candidates who are pro-life scholars been denied appointments at our institution?  If so, why is this the case?  Have we hired faculty candidates knowing, in advance, that they have written and plan to write in favor of abortion as morally licit and legally justified?  If so, why is this the case?  Does our university have a intellectual and social justice commitment to the Church's teaching on abortion?  If no, why is this the case?”

Absent a serious and honest engagement with these kinds of questions, the institutional examen is destined to be nothing more than the latest addition to a library shelf already full of volumes dedicated to Jesuit identity -- mere words, gathering dust -- while the universities they seek to guide continue on their path away from the gospel of life. 

 

Bradley on Catholic social thought and Catholic higher ed

Here's a very worthwhile interview with my friend and colleague, Prof. Gerard Bradley, thanks to the good people at the Lumen Christi Institute.

Recalling the legacy of John Saint John Paul II

Here's a post I did, the day after Blessed Pope John Paul II's death, back in April of 2005:

I'm sure that many of us are reflecting on the effect that the Holy Father had on our faith and lives, and thanking God for the gift of his ministry and example.  It also makes sense, here on MOJ, for us to consider what the Pope's work and thought might mean for law and legal theory.  A few thoughts:

First, many of the Pope's writings focus on the importance of culture as the arena in which human persons live, thrive, and search for truth.  His was not a reductionist Christianity -- one in which the choices and hopes of persons drop out of the analysis, and are replaced merely by one "dialectic" or another. Nor is Christianity merely a matter of a rightly ordered interior life.  We are precious and particular, bearing the "weight of glory," but also social, relational, political -- and cultural.  And, he recognized, law both shapes and is shaped by culture.

Second, the Pope returned again and again to the theme of freedom.  Certainly, for lawyers -- and particularly for lawyers living and working in our constitutional democracy -- questions about the extent to which law can and should liberate (and, perhaps, liberate-by-restraining?) are appropriately on the front burner.  It's fair to say that John Paul II proposed an understanding of freedom -- and of its connection with (T)ruth -- that contrasts instructively with the more libertarian, self-centered understanding that seems ascendant in our law (particularly our constitutional law) today.

Third, I imagine we will be working out for decades the implications of the Pope's proposal that the God-given dignity of the human person, and the norm of love, richly understood, should occupy center-stage in our conversations about morality -- rather than utilitarian calculations, historical movements, or supposed categorical imperatives.  This proposal seems particularly powerful when it comes to the matter of religious freedom.

Finally, there is the (perhaps, at first) surprising fact that, at the end of the 20th Century, it was a mystical Pope who "stepped up" and reminded a world that had been distracted, or perhaps chastened, by reason's failures, and had embraced a excessively modest, post-modern skepticism, of the dignity and proper ends (without overlooking the limits) of reason.

There's a lot more to say, of course.  I would, for what it's worth, encourage any MOJ readers who work with or advise law journals to consider commissioning essays, or even symposia, on John Paul II's jurisprudential legacy.

Cert Petition Filed in Religious Accommodation Case

A cert petition has been filed in Patterson v. Walgreen Co., a potentially important case under the religious-accommodation provision, section 701(j), of Title VII. And St. Thomas Law's Religious Liberty Appellate Clinic, which I supervise, has filed an amicus brief on behalf of Christian and Muslim organizations supporting the petition.

Patterson, a trainer for workers on Walgreen's phone-assistance line, was fired after he was unable to do an emergency training session on Saturday, his Sabbath (he is Seventh-day Adventist). But his unavailability on that occasion caused no harmful consequences: the training session went forward the following Monday and Walgreen's met the schedule it had articulated for the new phone-call policies. Instead, Walgreen's articulated that it must fire Patterson because this one-off situation would start recurring more regularly in the future, since its other trainer (who had swapped shifts with Patterson in the past) was going to move to a different company because Walgreen's was planning to sell that division in a sale to take place several months down the line. As a result, Patterson was fired at that moment based on a projected set of circumstances beginning nine months later.

The cert petition argues for review on the ground, among others, that the circuits are split on whether the employer may use such speculative future harms to meet its burden of justifying a refusal of accommodation: i.e. showing the accommodation would cause "undue hardship [to its] business." More broadly, while the accommodation provision has sometimes provided protection for employees' religiously-based dress and grooming,  it's been ineffective at protecting varying Sabbath observances because the Supreme Court has interpreted the burden of showing "undue hardship" to require only a showing of a "more than de minimis harm." TWA v. Hardison, 432 U.S. 63 (1977). As the third question presented, the cert petition calls for reconsidering Hardison's interpretation.

Our amicus brief for Christians and Muslims explains how "[a]llowing employers to rely on predicted future events creates at least three problems that undermine the effectiveness of the [accommodation] provision":

First, it allows employers to fire or otherwise adversely affect employees now based on events that might never occur—events that might never necessitate the firing. Second, reliance on future, hypothetical events makes it much more difficult to identify specific accommodations that might be available at the time the conflict arises. Third, reliance on speculative or hypothetical harms relieves the employer of the duty to search for reasonable accommodation—and at the worst, may incentivize employers to dream up scenarios of future hardship.

In addition, we support the petition's argument that the Hardison interpretation of "undue hardship" should be reconsidered, based on several grounds involving the statute's text and purpose:

      The ordinary meaning of “undue hardship” at the time the accommodation provision was enacted (1972) ...  is irreconcilable with a standard of mere “de minimis” cost....

      [T]he premise of the de minimis standard has been undercut by [the] Court’s recent decision in EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015) ... [which] makes clear [unlike Hardison] that [the accommodation provision] requires protection against the effects of a religion-neutral employer policy....

      A weak interpretation of [the] accommodation provision is particularly harmful to religious minorities, who are particularly likely to come in conflict with formally neutral employer policies reflecting the majority’s norms.

Aaron Bostrom, class of 2020, did an excellent job drafting significant portions of the amicus brief.

Civility and the pursuit of justice

Lest we grow complacent in attributing the degrading of our political culture solely to Donald Trump, Hillary Clinton steps forward to remind us that the race to the bottom is readily susceptible to a bipartisan effort. In a recent interview, she explained, "You cannot be civil with a political party that wants to destroy what you stand for, what you care about. That's why I believe, if we are fortunate enough to win back the House and or the Senate, that's when civility can start again."

Her comments reflect a fundamental misunderstanding of civility's role in the pursuit of justice.  As I explained earlier this week in an op-ed,

The means we employ in the political pursuit of our chosen values and priorities bear witness to how we view our fellow Americans.

As [Martin Luther King Jr.] reminded us during the tumult of the civil rights movement, “Hate is always tragic. It is as injurious to the hater as it is to the hated. It distorts the personality and scars the soul.”

That prison cells, firebombs and police dogs could not shake King from his commitment to civility speaks volumes about its importance to his work — and to ours.

Here is the lesson for Americans today who seek to defend their cherished values and priorities in the public square: Civility is not ultimately about manners; it’s about affirming our shared dignity and acknowledging — albeit sometimes through gritted teeth — that politics calls us to relationship.

When we allow our disagreements to obscure the dignity of our political opponents, we’re forgetting why King thought such battles were worth fighting in the first place.

You can read the whole thing here.

"China's Crackdown on Christianity"

Story here.  Very troubling.  A bit:

China’s crackdown on religion has taken a significant turn over the last two months, reaching a sustained intensity not seen since the Cultural Revolution. Outside the Three-Self Patriotic Movement churches—the state-sanctioned Christian churches—Christians have been facing steadily increasing pressure for the last 10 years. In 2017, the crosses of hundreds of churches were removed in Zhejiang Province. Cameras and other monitoring devices were also installed in churches throughout the province.

The situation is not isolated to Christians. Authorities in the Xinjiang Uighur Autonomous Region have been working to develop and implement a massive electronic surveillance system straight out of Nineteen Eighty-Four, including facial and iris recognition, speech recognition software, and even DNA sampling. Chinese authorities have also instituted a reeducation program, detaining Uighurs in “reeducation camps” and even luring Uighur students studying abroad to return to China under false pretenses, only to be detained.

Some G.K. Chesterton for today . . .

Re-read "Lepanto," and thank Don Juan (and the Holy Rosary!).

Our Lady, the Holy Rosary, and Lepanto

Remembering Rev. Robert J. Araujo, S.J.: Priest, Lawyer, and Scholar     Thursday, November 8, 2018 5:30 p.m.   Loyola University Chicago School of Law Power Rogers & Smith Ceremonial Courtroom, 10th Floor 25 E. Pearson Street, Chicago   Rev. Robert J. Araujo, S.J. was a beloved member of the School of Law faculty and the inaugural holder of the John Courtney Murray, S.J. University Professorship. He was a dedicated teacher, a devoted priest, and a good friend to many at Loyola.    Father Araujo received both his BA and his JD from Georgetown University. He later continued his legal studies at Columbia University where he received both an LLM and an SJD.  He also earned degrees from the Weston Jesuit School of Theology (MDiv and STL) and Oxford University (BCL). An accomplished scholar, Father Araujo was the author of several books and numerous articles on natural law philosophy, statutory interpretation, international law, and Jesuit education.   In addition to holding various teaching positions at Loyola University Chicago, Gonzaga University, St. Louis University, Fordham University, and Boston College, he also served as Permanent Observer and Attaché and Legal Observer for the Holy See to the United Nations.   Father Araujo passed away in October 2015. To honor his memory, a number of his friends and former colleagues prepared a collection of essays that have now been published as a book, Priests, Lawyers, and Scholars (Franciscan Univ. Press 2018).  Please join us for a panel discussion to celebrate Father Araujo's life and the publication of the book.   Panelists Ronald J. Rychlak, Jamie L. Whitten Chair of Law and Government and Professor of Law, University of Mississippi Elizabeth Schiltz, Co-Director of the Murphy Institute for Catholic Thought, Law and Public Policy, Herrick Professor of Law and Thomas J. Abood Research Scholar,  University of St. Thomas David DeWolf, Professor Emeritus, Gonzaga University School of Law Stefanus Hendrianto, S.J., Society of Jesus (West), book contributor and editor A reception will follow the discussion. The event is free and open to the public.   Registration is requested.     RSVP [email protected]