Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Monday, December 17, 2018

"The End of a Walking Dead Doctrine?"

Here is my contribution to a symposium sponsored by the good folks at SCOTUSblog on the upcoming memorial-cross case.  Here are the opening grafs:

About four and a half years ago, here at SCOTUSblogcommenting on the Supreme Court’s then-recent decision in Town of Greece v. Galloway, I noted that it had been a while since the justices “had shared with us their intuitions, impressions, aruspicies, and auguries – that is, what Justice Breyer calls their ‘legal judgment’ – in a clean-and-straightforward Establishment Clause case involving ‘religion in the public square.’” Well, they have been asked to do it again.

One of the questions presented in The American Legion v. American Humanist Association is “whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross.” That the question is posed this way says a lot, but not much that is complimentary or edifying, about the state of First Amendment doctrine. After all, and obviously, the monument at issue in Bladensburg, Maryland’s Veterans Memorial Park does not just happen to be “shaped like” a cross any more than the name of California’s largest city just happens to “sound like” one of the titles of the Blessed Virgin Mary. It is, in fact, a cross – a 40-feet-tall Latin cross that, for nearly a century, has recalled and honored 49 local soldiers who, as its original donors put it, “have not died in vain.” The memorial is constitutional not because its troubling resemblance may be excused but because – the lower court’s speculations about the semiotics of shrubbery-placement notwithstanding – it is not an “establishment of religion.” A judicial doctrine, precedent or “test” that says otherwise is, for that reason, unsound. . . . 

Comments and criticism welcome!

December 17, 2018 in Garnett, Rick | Permalink | Comments (0)

Richard Ekins's "Judicial Power Project"

I wanted to direct a little notice to the very fine "Judicial Power Project" run by Professor Richard Ekins. The project has put together a few very interesting programs. Here are two:

First, an online collection of essays, the lead piece of which is by John Finnis ("Judicial Power: Past, Present, and Future"), and subsequent responses by various distinguished jurists, with a reply by Professor Finnis.

Second, an online symposium on a new book by Paul Yowell, Constitutional Rights and Constitutional Design: Moral and Empirical Reasoning in Judicial Review. The book's core claims concern the mismatch between the empirical judgments made by judges in constitutional rights cases and the institutional capacity of courts to make such judgments. The online symposium contains responses by several prominent legal scholars and judges, including Professors Adrian Vermeule and Erin Delaney, as well as Professor Ekins himself.

December 17, 2018 in DeGirolami, Marc | Permalink

Friday, December 7, 2018

The Tradition Project, Part III: The Value of Tradition in the Global Context

Next week, the third and final conference of the Tradition Project kicks off in Rome: "The Value of Tradition in the Global Context." The conference is the product of the joint labor of three institutions: LUMSA University in Rome (with our colleague Monica Lugato taking the lead), Villanova's Eleanor H. McCullen Center for Law, Religion, and Public Policy (ably stewarded by our MOJ colleague, Michael Moreland), and the Center for Law and Religion at St. John's Law School (directed by Mark Movsesian and me).

This session will feature a public address, on December 12, by Associate Justice Samuel A. Alito, Jr., of the United States Supreme Court, and four private workshops on the conference themes, ranging over the political, cultural, and legal dimensions of the role of tradition in the world today. Rick Garnett and Adrian Vermeule will be in our number as well. Here is the program.

December 7, 2018 in DeGirolami, Marc | Permalink

Monday, December 3, 2018

Perry Dane on Corporations

MOJ readers know that I'm interested in the role and rights of religious institutions. (See, e.g., this and this.)  I also think that Prof. Perry Dane (Rutgers) is one of the most interesting law-and-religion scholars working.  So, I suppose it's a bit "overdetermined", as they say, that I'm recommending this paper of his:

This essay on Corporations is a chapter in an upcoming volume on economic theology edited by Stefan Schwarzkopf.

The secular study of corporations has long regularly focused on three sets of concerns: (1) Is the idea of corporate “personhood” only a convenient shorthand for a complex set of relationships among human beings or are corporations in some important sense “real entities” with rights, duties, interests, or even intentions of their own? (2) How do the various aspects of corporate personhood differ from the qualities of human personhood? (3) What are the proper purposes or missions of for-profit and not-for-profit corporations?

This essay examines these perennial questions through a distinctive theological lens. It considers, among other topics, doctrines in Jewish and Islamic law about the religious meaning of secular corporations, debates about the spiritual worth and moral responsibilities of for-profit corporations, and ideas in several faith traditions about the ontological status of religious communities.

The essay also discusses the role of the fraught idea of “idolatry” in conversations about corporations. And it ends by looking to Buddhist philosophy, contemporary neurological research, and secular theories of public choice and group decision-making to question the reigning assumption that there is a fundamental difference between “natural persons” such as human beings and “artificial persons” such as corporations.

December 3, 2018 in Garnett, Rick | Permalink

Sofia Carozza on Advent, neuroscience, and "Locke's Lonely Liberalism"

Sofia Carozza, a neuroscience-and-theology major at Notre Dame, has this very interesting reflection in the Church Life Journal on Advent, neuroscience, and "Locke's Lonely Liberalism."  Just a bit:

. . . Neuroscience alone shows us that our development and flourishing takes place through relationships of love. But in providing a corrective to Locke, developmental neuroscience is well supplemented by a Thomistic account of the human person. Such an account is particularly helpful when the development of the virtues is understood through the interpretive key of “second-person relatedness.”[9] This Thomistic concept, as argued by Andrew Pinset, is the idea that the “I” is formed in dialogue with the “you,” in an irreducible dialectical relationship. Second-person relatedness begins between the child and her parents, a relationship in which she starts to develop the human virtues and gain agency as a moral individual. However, Pinset argues that second-person relatedness is a continuum of relationship that extends even to the child’s connection with God. Through this divine I-Thou relationship, she experiences friendship with God and is thus bestowed the theological virtues.

This account of the human person accords well with neuroscience research. . . .

December 3, 2018 in Garnett, Rick | Permalink

Saturday, December 1, 2018

Feast of Edmund Campion and the English martyrs

Several years ago, our own Fr. Robert Araujo, S.J. (RIP) posted this, about Campion and other English martyrs:

Today, the first of December, is a special day in the liturgical calendar of the Society of Jesus—the religious institute to which I belong. It is the feast of the martyrs Saints Edmund Campion, Robert Southwell, and companions. Of course the English and Welsh Church offered up a good number of members of other institutes, the secular priesthood, and the laity who would not compromise on their Catholic faith but, by the same token, did not betray their loyalty as subjects of the temporal realm. In spite of what the temporal powers demanded of them, they simultaneously remained true to the faith and their sovereign.

It could have been Campion and Southwell and their companions that Cardinal George had in mind when he recently figuratively (and, perhaps, literally) stated that he would likely die in his bed; his successor in prison; and the latter’s successor a martyr for doing what Saint Paul in the letter to Titus reminds all Christians to be their duty: to encourage others in sound doctrine and to refute those who oppose it. [Campion and some of his companions were teachers, and they understood the value of authentic academic freedom to search for and present in public fashion the truth of God.] While such talk may be dismissed as hyperbole in the present age, is it?

We do not have to look far today to see that there are still martyrs, usually folk from ordinary walks of life, who are dying for the Catholic faith and for no other reason. This has been the history of the Church since its beginning; the tradition continues because people like Campion and his fellow martyred Jesuits understood well that they joined the enterprise of the Society of Jesus for one purpose alone: to strive especially for the defense and propagation of the faith and the progress of souls in Christian life and doctrine.

This is evident from reading Campion’s apologia which Father Campion submitted to Queen Elizabeth I’s Privy Council after his capture and before his execution. [The apologia (oft referred to as “Campion’s Brag”) is HERE] His words do not betray any disloyalty to his sovereign, but they confirm the sincerity and profundity of his faith in Christ and His holy Church. The so-called Brag is worth studying carefully, but these words stand out for me and, perhaps, others:

…The expense is reckoned, the enterprise is begun; it is of God, it cannot be withstood. So the faith was planted: so it must be restored…

Saints Edmund Campion, Robert Southwell, and companions: pray for us!

Don't miss the chance today to (re)read "Campion's Brag"!

December 1, 2018 in Garnett, Rick | Permalink

Thursday, November 29, 2018

The police in the chanceries

As most readers already know, the forces of "the state" in the form of police officers, even Texas Rangers, spent some twelve hours yesterday rooting around inside the Houston Chancery in what the same Chancery does not want to hear called a "raid."  The non-raid, prosecutorial action for records related to clergy sex was, as most readers also already know, of the home-base of the president of the U.S. Conference of Catholic Bishops, Cardinal DiNardo. 

This latest prosecutorial investigation of the Church for things having to do with clergy sex abuse is just one among a large and doubtless soon-to-grow number of similar legal actions across the country: at least fourteen states, the District of Columbia, and the U.S. Department of Justice in what could well become a nationwide investigation and prosecution.  That Pope Francis, acting through the Congregation for Bishops, recently directed the USCCB not to vote on its planned reforms "to hold bishops more accountable," as the agenda items were often described by the press, could conceivably end up having emphatically-unintended legal consequence in the possible federal case against the Church.  The Vatican's stated reason for disallowing the USCCB's planned vote was the meeting Pope Francis had already called for in in Rome in February to address "clergy sex abuse" and related issues on a universal scale. 

As to that "meeting," I am deeply sympathetic to the need for universal Church governance on these issues, and I hope Pope Francis, who after all is the man in charge, will finally provide the rules and enforcement that are necessary to begin to get the wrongs righted and the ship turned closer to the right direction.  I'm not immediately hopeful, however. 

Consider that when Archbishop McCarrick belatedly "resigned" from the College of Cardinals at the end of July, the Vatican's one promise was that McCarrick would be subject to a canonical trial for his alleged crimes.  But, as the Washington Post reported last week (Nov. 23), there is zero evidence that that trial, the mere public beginning of which could begin to repair some broken trust, will ever occur.  It may well occur, but who knows?  There is an easy, available, if imperfect, point of comparison in recent Church history.  When Pope Benedict's butler committed his crime ("aggravated theft"), the butler got a speedy, public canonical trial that the Vatican was eager for the world to witness and take note of.  At the very least, we can say that McCarrick is not getting anything resembling a speedy trial, and there are of course plenty of possible reasons, some of them sinister, for the slow, if any, progress in bringing McCarrick to canonical justice. 

Meanwhile, McCarrick is an old man (88),  and there is ample reason to suppose that the Vatican has little interest in having all the facts possibly at issue in his trial spread upon the record.  It's worth noting in this connection that those who wag their finger and point to Archbishop Vigano's violation of the pontifical secret rarely then draw the obvious practical conclusion that  Archbishop Vigano should be put on canonical trial.  As with McCarrick, can you even imagine what would come out in that court room for the world then to have to face?   Pope Francis will "not say one word" about Vigano's actions and un-refuted allegations, but he also will not cause his legal system at Rome to bring the law-breaking Archbishop to trial.  Why should not Vigano, like McCarrick, be tried for his alleged crime(s)?  (Of course, there is arguably good reason to conclude that Vigano should not be tried because in his case the positive law of the Church was displaced by the demands of higher law, but that's another question and it is emphatically not the position the Vatican has taken in not prosecuting Vigano).

All of which, along with so much more to the same effect in the recent news, brings me to my present point: "in the interest of public utility, crimes ought not remain unpunished" ("publicae utilitas intersit, ne crimina remaneant impunita").  This doctrine, first stated by Pope Innocent III in 1203, was an essential part of the Church's way of authorizing secular governments to create penal systems and punish criminals.  This new doctrine, as Richard Fraher has written, "helped to justify the [then] nontraditional punitive measures which communal governments enacted to ensure stability and curb violence in the new city-states."  Fraher continues:  "the motivation behind the development of the new criminal procedures . . . was the perceived need for efficient enforcement of the canon law, for the purpose of deterring deviant behavior."   And, lest anyone wonder, the historical record makes perfectly clear that deviant, criminal behavior by members of the clergy was crucial in the Church's decisions, as in 1203, sometimes to defer to the secular government in enforcing the criminal law.

Innocent III's accommodation of 1203 is just one example of the Church's out-sourcing some of the dirty work the Church, like the state, wanted, with good reason, to see done and done reasonably well, granted by all concerned that secular justice would fall short of the understood higher demands of higher law.  From Pennsylvania and New York and Texas and probably soon to California, the states are doing work the Church has long relied on them to do.

To be sure, however, what the states are doing today is done against a radically different Church-state "balance" than any Innocent III could have imagined in his worst nightmares.  But, as I have long insisted, at the heart of the problem has been the Church's refusal to follow and enforce her own law.  It wasn't groovy for "the Church of accompaniment" even to acknowledge the Church's legal power over her members, let alone to threaten penal remedies and sometimes enforce them.  But it was the "accompaniment" model that was at work when "Uncle Ted" was spiriting young men off to his long-notorious shore house.  

"The Church of accompaniment" failed us, all of us: the victims, first of all and foremost, but also all the rest of us who were owed a Church that was governed the way Christ intended his shepherds to safeguard the faithful.   So, while I am distressed by pictures of the police raiding one chancery after another, I am relieved and grateful to see the state starting to do for men, women, and children what the ministers of the Church have so miserably failed to do.  

"The Church has its own inherent right [nativum et proprium Ecclesiae ius] to constrain with penal sanctions Christ's faithful who commit offences."  CIC  can. 1311.  The U.S. bishops have acknowledged their awareness that "the McCarrick case" deeply troubles the American faithful, as it should.  When will the Church exercise the duty correlative to her right "to constrain with penal sanctions" in the case of McCarrick, appropriate sanctions not approached by his current life of comparatively comfortable exile in an obscure Kansas Friary?  Why exactly has McCarrick not been reduced to the lay state?  Only Rome can accomplish the available justice in the McCarrick case.  Will it?  McCarrick has still not so much as offered a public apology, only a denial.  


November 29, 2018 in Brennan, Patrick | Permalink

Tuesday, November 27, 2018

Chen Guangcheng on the Vatican's Pending Agreement with China

Regular MOJ readers know that I've regularly [ed.:  Try "obsessively"!] blogged over the years about the PRC's violations of its citizens' religious freedom and of the rights of religious communities, associations, and societies.  In particular, I have been very critical of the regime's assertions of authority over the Roman Catholic Church's episcopal appointments and training and ordination of clergy, and have strongly supported the so-called "underground" Church.  And, I have expressed skepticism about the much-discussed alleged/pending "deal" between the Holy See and the Chinese dictatorship.  (For a different view, read this post - "China and the Vatican: Principles for the Rationally Ignorant Catholic") by our own Adrian Vermeule and Gladden Pappin.)

My sense is that Chen Guangcheng speaks with authority, and persuasively, when it comes to matters of China and human rights, including religious freedom.  So, I urge MOJ readers to check out this piece, "A Pact with a Thief, a Deal with the Devil:  The Vatican's Pending Agreement with China," at Public Discourse.  Here's a bit:    

. . . In China, the CCP seeks to lead and control all. Religion, however, encourages goodness, reverence for the sacred, loyalty towards others, and veneration of an omnipotent spiritual power. Its set of refined values are at odds with the self-serving atheism and extreme party loyalty the CCP has long sought to inculcate in the population. Religion asks for trust in a higher power—higher still than the Communist Party can claim—and faith in ideas that are beyond the reach of the regime’s clutches.

Chinese people have been turning to religion—including Catholicism, Protestantism, Buddhism, and Daoism—in great numbers over the past decades as they emerge from the horrors of botched socialist policies. This trend has caused the CCP to feel threatened and anxious. It sees these disparate groups as competitors, leading it to intensify suppression with growing scope and vigor. . . .

For what it's worth:  It seems important that our evaluations of relations between the Holy See and China, and of the situation for Catholics in the PRC, and of the merits/wisdom of whatever arrangements (or compromises, even) are arrived at should proceed separately from the various ongoing debates about Pope Francis's style, perceived agenda, curial management, attentiveness to sex abuse and misconduct by priests and bishops, etc.  That is, I believe it is a mistake to lump or equate reservations about the pending agreement (or, what we think we know about it) with the various criticisms -- some of which are measured, some of which are quite hostile -- of this pontificate.  My own concerns, in any event, about the situation in and with China are (I hope!) untethered to the often unedifying online and other debates about the Pope, his assumed allies, etc.  Similarly, it does not seem to me that an appropriate respect for, attachment to, and submission to the Pope requires one to endorse the agreement (or, again, what we think the agreement is).    

November 27, 2018 in Garnett, Rick | Permalink

Sunday, November 25, 2018

Christ the King, Ruler of our hearts


On this Feast of Christ the King, I wanted to share the homily delivered at my parish, St. Catherine of Siena in Norwood, Massachusetts by our holy and learned parochial vicar, Fr. Thomas Sullivan: 

The Feast of Christ the King is of fairly modern origin in the liturgical life of the Church, having been established in only 1925. Pope Pius XI had good reason to remind the world of the Sovereign Kingship of Jesus Christ. For centuries, the united Christendom that grew from the remains of the Roman Empire was fracturing along national lines. Divisions were accelerated terribly by the Protestant Reformation and greedy rulers all too willing to sever ties with Pope and Emperor for their own gain. The following centuries saw bloody wars of religion, violent revolutions hostile to Faith, and the rise of secular and atheistic regimes. Everything came to a head with The Great War, the so-called War to End All Wars, the First World War.


Pope Pius XI witnessed Europe’s near suicide -- nominally Christian nations tearing each other apart in an utter failure of Justice, and Mercy, and Charity. Had these Christian men heeded the Holy Father’s warnings and recalled their baptismal brotherhood, perhaps they could have avoided what was soon to follow in an even more horrifying World War. Instead, godless Communism and National Socialism wrought havoc in the ruins of Christian Civilization.


Ideas have consequences… and those who would impart their own brand of order on the world, disconnected from the Truth about God and the human person, wind up imposing disorder and misery. Our Lord warns us of this in his words to Pilate when he says, “You say I am a king. For this I was born and for this I came into the world, to testify to the Truth.”


Pope Pius didn’t establish this great feast only to rebuke world powers. He provided it for the benefit of his spiritual children. The lessons of this feast apply to every human being. Christ’s kingly testimony to the truth is just as relevant to us. And we should listen attentively lest we introduce chaos into our own souls.


The One who comes to testify to the Truth about man is the One who created man. The One who reveals the truth about God, is God himself, incarnate in human flesh. Original sin brought with it the ultimate disorders: body separated from soul in death, and soul separated from God. Christ the King extends the scepter of his clemency to us. The King of the Universe overcomes sin and death as he mounts the throne of his cross. If we submit ourselves to his gentle rule, we will find our way into his heavenly courts.


What does the governance of Christ look like? As Creator he gives order to the whole universe, and everything from the stars in the sky to the smallest seed in the earth follow the course he has set for them. He writes the natural law upon our hearts, inclining man to the good, to life over death, truth over lies, and relationship over isolation.


Christ the King gives us Commandments to obey, laws laid down for our own happiness. Christ the King sits as Judge of the living and the dead, but as King he also extends his mercy towards us. But in his governance, Christ the King is not distant; he doesn’t rule only by dictate. Christ the King has become our exemplar. He willingly submits himself to the same rule.


If we were to describe the ideal earthly king, we’d speak of a man who was of high moral character, not exempting himself from the laws he enforces, just in his decisions and generous to the poor. A man of deep faith who, while occupying a high office, humbles himself before God. In war, we admire the king who leads his men in battle, fighting for a just cause and the protection of the innocent and weak. We want a king who is one of us, so we can aspire to be like him, but also a king who is greater than us, inspiring our confidence and devotion. That’s exactly who Christ is.


Christ the King lives what he commands; he keeps the Commandments without the slightest offense against Charity. Christ the King fights the good fight as one of us, willing to suffer in order to console the sorrowing, even laying down his life for our sake. Though he was the Son of God "he did not deem equality with God something to be grasped," and so in his human nature, Christ the King humbles himself in obeying the will of his heavenly Father. He inspires us to imitate him out of love, and gives us the grace to persevere in that likeness.


By virtue of our baptism, all the faithful share in the Kingship of Christ. How do you exercise that governance? As parents you raise your children to follow the commandments: loving God and giving him due worship, honoring father and mother, and loving your neighbor as your very self. In civil society, you seek to establish an order based on truth, enacting laws in harmony with the order God has put into the world, never violating human dignity. But most fundamentally of all, you exercise your share in Christ’s Kingly office by governing yourselves, by exercising virtue and avoiding sin.


The human soul is a battleground on which occurs a fight for your lives, eternally-speaking. If we allow Christ to rule in our hearts, we will find peace in this life and happiness in the next. If we finally cast down the idols we’ve enthroned in our hearts, then Christ will enter in and never leave us. It’s in the hearts and souls of men that Christ wishes to rule. And when such people come together in Love and Truth, a new Christendom is founded atop the old. The Kingdom of God is at hand.


November 25, 2018 in Bachiochi, Erika | Permalink

Christ the King, Political Theology, and Fr. Miguel Pro

Re-posting this, from four years ago:

Today is the Solemnity of Christ the King.  In my experience, preachers in Catholic parishes don't know quite what to do with this Feast.  Usually, the day's "message" or "theme" has been (again, in my experience) something to the effect that we should ask if we are "putting Jesus first in our lives" (and, certainly, we should). 

And yet . . . especially in light of the emerging (and much needed) focus in the Church on religious liberty and the realities of both aggressive secularism and persecution, it's worth (re-)reading Quas Primas, the encyclical of Pope Pius XI that instituted the feast day in 1925, and remembering that this institution's purpose sounded more in political theology than in personal piety and devotion.  This feast -- which we celebrate, again, this Sunday -- is a reminder that government is not all, that there are things which are not Caesar's, and that everything, in the end, is "under God."

So . . . Here is a little Solemnity-appropriate reading:  Pope Pius XI's Quas Primas.  Great stuff.  "Viva Cristo Rey!"

UPDATE:  More, on Miguel Pro, S.J., here.


November 25, 2018 in Garnett, Rick | Permalink

Christ the King and "Quas Primas"

Re-upping this, from 7 years ago:

In my experience, preachers in Catholic parishes don't know quite what to do with the Feast of Christ the King[.]  Usually, the day's "message" or "theme" has been (again, in my experience) something to the effect that we should ask if we are "putting Jesus first in our lives" (and, certainly, we should). 

And yet . . . especially in light of the emerging (and much needed) focus in the Church on religious liberty and the realities of both aggressive secularism and persecution, it's worth (re-)reading Quas Primas, the encyclical of Pope Pius XI that instituted the feast day in 1925, and remembering that this institution's purpose sounded more in political theology than in personal piety and devotion.  This feast -- which we celebrate, again, this Sunday -- is a reminder that government is not all, that there are things which are not Caesar's, and that everything, in the end, is "under God."

November 25, 2018 in Garnett, Rick | Permalink

Wednesday, November 21, 2018

Garnett, "'There Are No Ordinary People': Christian Humanism and Christian Legal Thought"

Here is a (very) short contribution of mine to a volume celebrating the new-ish casebook, Christian Legal Thought:  Materials and Cases, edited by Prof. Bill Brewbaker and our own Patrick McKinley Brennan.  Cardinal Sarah, Cormac McCarthy, and C.S. Lewis all make appearances.

November 21, 2018 in Garnett, Rick | Permalink

Tuesday, November 20, 2018

Steven D. Smith's *Pagans & Christians in the City: Culture Wars from the Tiber to the Potomac*

Steven D. Smith's long-awaited book Pagans & Christians in the City is now available. I was delighted that Steve invited me to provide a Foreword. I'm reprinting it here in the hope that it will encourage you to read the book. Steve has produced a truly extraordinary work of scholarship--one with profound implications for contemporary cultural and political life.



It was the distinctive claim of the most influential late twentieth-century liberal political philosophers, including most notably John Rawls and Ronald Dworkin, to be proposing theories of political morality that identified principles of justice (and suggested institutional structures and practices to implement those principles) that were neutral as between controversial conceptions of what makes for or detracts from a valuable and morally worthy way of life. This was liberal orthodoxy for something approaching forty years. Of course, it had its critics, including conservatives, natural law theorists and other neo-Aristotelians, certain sorts of utilitarians and libertarians, and even a few unorthodox (“perfectionist”) liberals; but it was far and away the dominant view.

Like a number of other critics, I argued (first in my 1993 book Making Men Moral: Civil Liberties and Public Morality and then in many other writings) that the “antiperfectionism” (or “neutrality”) to which the orthodox liberalism of the period aspired (or at least purported to aspire) was neither desirable nor possible. What Rawls would eventually dub and defend as (merely) political liberalism was—unavoidably—built on premises into which had been smuggled controversial substantive ideas about human nature, the human good, human dignity, and, indeed, human destiny—ideas that competed with those proposed by alternative religious and secular “comprehensive views.”

Today little effort is made by liberals (or what are these days more often called “progressives”) to maintain the pretense of neutrality. Having gained the advantage and in many cases having prevailed (at least for now) on battlefront after battlefront in the modern culture war, and having achieved hegemony in elite sectors of the culture (for example, in education at every level, in the news and entertainment media, in the professions and in corporate America, and even in much of religion), they no longer feel any need to pretend.

Take, for example, the issue of marriage. When, in the 1990s, the effort began in earnest to redefine marriage to include same-sex partnerships, advocates of that position frequently claimed that they merely sought to establish a regime of matrimonial law that was neutral as between competing conceptions of what marriage is or ought to be, and similarly neutral as between competing ideas of good and bad, right and wrong, in the domain of human sexual conduct and relationships. This reflected the orthodox liberal political theory of the day—or, in any event, its rhetoric. But twenty-five years or so later, with marriage having been redefined by the Supreme Court of the United States (and by referenda or legislative action in a number of other nations), virtually no one on either side doubts that marriage as redefined embodies substantive ideas about morality and the human good—ideas that differ significantly (indeed, in key respects profoundly) from those embodied previously in marriage law, ideas that, according to partisans of the redefinition of marriage, are to be preferred precisely because they are superior to the ideas they supplanted.

So now that the pretense of neutrality has been more or less abandoned, and is on its way to being forgotten, what is the substance of the perspective (or ideology or, perhaps, religion) that is now fully exposed to view—and not merely to the view of its critics? And what shall we call it?  In the book you are now reading, Steven Smith sets for himself the task of describing and analyzing it, and he gives it a name: paganism. The label is provocative. Professor Smith’s reasons for choosing it, however, go well beyond a mere desire to provoke. What he perceives (rightly in my view) is that contemporary social liberalism (“progressivism”) reflects certain core (and constitutive) ideas and beliefs—ideas and beliefs that partially defined the traditions of paganism that were dominant in the ancient Mediterranean world and in certain other places up until the point at which they were defeated, though never quite destroyed, by the Jewish sect that came to be known as Christianity.

Of course, some progressives will suppose that Smith is deploying the term “pagan” epithetically, that he is resorting to disparagement or a kind of rhetorical abuse of his religious or political opponents. The term “pagan” (despite being claimed—or reclaimed—by followers of certain New Age movements) continues to have largely negative connotations in our culture, so few people (outside New Age circles) formally identify themselves as pagan. But the first and most important thing for a reader to understand in approaching this volume is that Smith means something very particular in using the word—he uses it to characterize ideas and beliefs that a great many people today, especially those in the ideological vanguard, have in common with people of, for example, pre-Christian Rome. This does not mean that the modern people Smith has in mind share all the ideas and beliefs of ancient Romans (such as belief in gods like Jupiter, Neptune, and Venus), but rather that some of the central ideas and beliefs that distinguish them from orthodox Christians and Jews—and, one could add, Muslims—in our day are ideas and beliefs they have in common with the people whose ideas and beliefs Christianity challenged in the ancient world.

Secular progressives, no less than other people, or people of other faiths, have cherished, deeply held, even identity-forming beliefs about what is meaningful, valuable, important, good and bad, right and wrong. They may not believe in God, or a transcendent and personal deity, but certain things (as Professor Dworkin expressly acknowledged—indeed, asserted—in work published near the end of his life) are sacred to them—things they live for and would be willing to fight and even die for (racial justice, LGBT rights, environmental responsibility, etc.). They have faith—and a faith. They generally regard it as a reasoned and reasonable faith, but that doesn’t mean it’s not a faith. (Many Christians and Jews regard their faith as reasoned and reasonable. Indeed, it is a doctrine of Catholicism that true faith is reasoned and reasonable.) So what is it about the secular progressive faith that warrants Smith’s labeling it “pagan”? After all, though not theistic, it is certainly not (in any literal sense) polytheistic. Smith explains:

Pagan religion locates the sacred within this world. In that way, paganism can consecrate the world from within: it is religiosity relative to an immanent sacred. Judaism and Christianity, by contrast, reflect transcendent religiosity; they place the sacred, ultimately, outside the world.

Now, Smith concedes that this characterization oversimplifies things a bit. But the oversimplification is mainly in the description or characterization of Judaism and Christianity, not secular progressivism. The biblical faiths conceive God as transcendent, to be sure, but not in a way that excludes elements of divine immanence. In Jewish and Christian doctrine, a transcendent God sanctifies the world of human affairs by entering into it, while still transcending it. And God’s transcendence means that for the believer this world is not one’s true or ultimate home—we are “resident aliens.” Smith contrasts Jews and Christians with pagans on precisely this point: “The pagan orientation . . . accepts this world as our home, and does so joyously, exuberantly, and worshipfully.”

Now, Christianity, had it been a religion of pure and exclusive transcendence, might have simply rejected this world and not concerned itself with its affairs. The authorities of pagan Rome might then have left it alone, treating it as one more odd or exotic religion. But it’s not that kind of faith. So it took an interest in the world’s affairs and developed ideas about such things as authority; obligation; law, including natural law; justice; and the common good—ideas that challenged pagan ideas in practices in a variety of areas, some of them profoundly important.  A central area was sex.

Smith argues that within the pagan “matrix of assumptions, the Christian view of sexuality was not only radically alien, it was close to incomprehensible.” About this he is certainly right historically. But consider that the Christian view of sexuality is today, within the “matrix of assumptions” of secular progressivism, perfectly aptly described as “not only radically alien, but close to incomprehensible.” Consider again the debate over marriage, as just one of many possible examples. The biblical and natural law conception of marriage as the one-flesh union of sexually complementary spouses is not only “alien” to secular progressives, who understand “marriage” as a form of sexual-romantic companionship or domestic partnership, but nearly incomprehensible—except as a form of bigotry against people who are attracted to and wish to marry (as progressives understand the term) people of their same sex. Or consider the view that nonmarital sexual conduct and relationships, including homosexual ones, are inherently immoral. That, too, is regarded by a great many secular progressives as not only unsound, but unreasonable, outrageous, scandalous, even hateful. They can account for it, if at all, only as religious irrationalism, bigotry, or, as many today now claim, a psychopathology.

As the historian Kyle Harper notes in a passage of his recent book on the transformation of beliefs about sexuality and morality in the ancient world (quoted by Smith), sexuality “came to mark the great divide between Christians and the world.” Christian ideas about sexual norms (rejecting fornication, adultery even by men, homosexual acts, pornographic displays, and so forth) were revolutionary; and the pagan establishment was no more welcoming of revolutionaries—even nonviolent ones—than any other establishment is. So paganism could not, and did not, tolerate the Christians—even when Christianity was far too weak to pose any real challenge to political authority. It was not that Roman authorities refused to allow minority religions of any kind in the empire; those that could coexist with the dominant paganism were allowed to do just that. But the Romans perceived Christianity as a threat—and Christian ideas about sex (and, in consequence, about Roman sexual practices) figured significantly in that perception. They feared that Christianity would, in Smith’s evocative phrase, “turn the lights out on the party.” And that, of course, is what Christianity eventually did.

But in our own time the lights have been turned back on and the party is going again. In the 1940s, Alfred Kinsey, the Saint Paul of the modern sexual revolution, convinced a lot of people that sex is a human need—that psychological health and wholeness generally require it, and that Judeo-Christian norms of sexual morality, when embraced, result in stilted, even twisted, personalities. In the 1950s, Hugh Hefner, neopaganism’s very own Saint Augustine, persuaded people that pornography was, or could be, innocent fun and that the “Playboy philosophy” of sexual indulgence was the way for up-to-date, sophisticated people to lead their lives. The “gay rights” or “LGBT” movement has made the affirmation of homosexual conduct and relationships the “civil rights cause” of our day. Disagree? “Bake the cake, bigot!”

Christians and other traditional religious believers have been knocked back on their heels. Reversing the sexual revolution (despite the growing evidence of its doleful social consequences, especially for children) in any of its major dimensions seems inconceivable. Few believe that its forward march can be paused or even meaningfully slowed down. The vast majority of Christians think that the most they can hope for in this new epoch of pagan ascendancy are some protections for their own liberty to lead their lives as they see fit, in conformity with their faith, and not to be forced to facilitate or participate in activities that they cannot in good conscience condone. Progressives say, after all, that they are all for individual autonomy and liberty. Of course, that claim will likely prove to be, to borrow a phrase from Hillary Clinton, “no longer operative.” Many Christians and other believers despair even of the possibility of protecting their children from being indoctrinated into the beliefs of the governing elite, the new ruling class (or what perhaps might better be described as the old, but repaganized, ruling class). They believe we have entered a new Diocletian age. They not unreasonably suppose that it is precisely this reality that is being signaled when progressive intellectuals, such as Mark Tushnet of Harvard Law School, say things like this:

The culture war is over; they lost, we won. . . . Taking a hard line (“You lost, live with it”) is better than trying to accommodate the losers, who – remember – defended, and are defending, positions that liberals regard as having no normative pull at all. Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown. (And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.) I should note that LGBT activists in particular seem to have settled on the hard-line approach, while some liberal academics defend more accommodating approaches. When specific battles in the culture wars were being fought, it might have made sense to try to be accommodating after a local victory, because other related fights were going on, and a hard line might have stiffened the opposition in those fights. But the war’s over, and we won.

So there you are. The neopagans are in no mood to be “accommodating.” Christians and others who dissent from progressive orthodoxy can expect “the hard-line approach.” They are to be treated like the defeated Germans and Japanese after World War II.

For Christians and other dissenters from neopagan orthodoxy, then, the question is, What is to be done? How should they respond to Professor Tushnet’s “hard-line” approach—an approach that will indeed be, and in fact is being, implemented by people who want to ensure that Christians never again get near the light switch and that they are properly punished for having switched off the lights to the party in the first place? It’s a question that, for Christians, is as urgent as it is important. But to even begin answering it, we need a sober, penetrating, deeply insightful diagnosis of our condition and account of where we are and how we got here. Professor Smith deserves our deep thanks for providing it.

Robert P. George

McCormick Professor of Jurisprudence

Princeton University

November 20, 2018 | Permalink

"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. . . .

November 20, 2018 in Garnett, Rick | Permalink

"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.

November 20, 2018 in Garnett, Rick | Permalink

Monday, November 19, 2018

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.

November 19, 2018 in DeGirolami, Marc | Permalink

Wednesday, November 14, 2018

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.

November 14, 2018 | Permalink

Tuesday, November 13, 2018

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. 

November 13, 2018 in Garnett, Rick | Permalink

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.

November 13, 2018 in DeGirolami, Marc | Permalink

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.

November 13, 2018 in DeGirolami, Marc | Permalink

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!)

November 13, 2018 in Garnett, Rick | Permalink

Sunday, November 11, 2018

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.

November 11, 2018 | Permalink

Friday, November 9, 2018

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.

November 9, 2018 in Garnett, Rick | Permalink

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!

November 9, 2018 in Garnett, Rick | Permalink

Tuesday, November 6, 2018

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.

November 6, 2018 in DeGirolami, Marc | Permalink