Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, December 6, 2019

Fairness for All Legislation; Religious Liberty Scholars' Supporting Letter

Today the federal "Fairness for All" bill was introduced; it aims to give significant protection to both LGBT nondiscrimination rights and traditional believers' religious-freedom rights.  Full information about the bill here. It is already being attacked from both sides of the ongoing, polarizing culture war for which this issue provides such fuel. For reasons I and others have long articulated, neither side is going to prevail in without protracted conflict that will continue to harm (1) the cause of traditional religious faith, (2) LGBT people's basic  equal treatment in significant parts of the country, and (3) the bonds that keep America together.

The bill is not perfect, but it would be a major step forward. Carl Esbeck, Doug Laycock, Robin Wilson, and I have joined a letter supporting the bill. Here is the text of our letter. (Update: It's also available on the FFA coalition's website and here.)

+++++++++++

December 6, 2019

We are constitutional law scholars who have studied, taught, and written about the law of religious liberty for decades. All of us have persistently argued for religious liberty in legislatures and in the courts. Most of us have also argued for LGBTQ rights in legislatures, the courts, or both.

We have long been concerned about legal clashes between those who cherish the fundamental right to religious liberty and those who advocate new legal protections for the civil rights of LGBTQ people. These conflicts have led to increasingly polarized positions in which progress is blocked for both sides. Many Americans think that traditional believers seek a general “license to discriminate” and that hostility to the LGBTQ community is the public face of Christianity. Many traditional believers think that the LGBTQ community and its supporters are determined to destroy their institutions, deprive them of their rights, and confine them to hidden and wholly private corners of the society.

Neither side’s perception of the other is accurate, but the perceptions are real, and they have done much damage to traditional believers, to the LGBTQ community, and to the larger society. Same-sex marriage is protected from interference by government, but in about half the states, same-sex couples can still get married on Saturday and discover that one or both of them has been fired on Monday. Believers with conscientious objections to assisting with same-sex weddings still fear being forced to surrender their consciences or close their businesses in the other half of the states, and churches and other religious organizations fear intrusive regulation or loss of tax exemptions everywhere, whether from blue states or federal agencies.

There is a better way. The proposed Fairness for All Act is balanced civil rights legislation that equitably protects the rights of both communities. It broadly protects LGBTQ persons in employment, housing, credit, public accommodations, federally assisted programs, public facilities, jury service, refugee resettlement, and marriage recognition, and it offers protection against bullying and retaliation. It broadly protects religious institutions and individual believers in practice, doctrine, conscience, and institutional integrity. It protects tax exemptions; it protects small businesses and medical professionals; it greatly strengthens accommodations for religious employees. It protects free speech in the workplace for both supporters and opponents of same-sex marriage.

Both traditional believers and the LGBTQ population would have far more protection under this bill than they have under existing law, and far more protection than they have any reasonable prospect of enacting without this bill or some similar negotiated solution. The experience in Indiana with attempts to enact a state Religious Freedom Restoration Act, and less publicized failures in Georgia, Michigan, Ohio, and West Virginia, show that except possibly in the reddest states, the religious community cannot pass additional religious liberty legislation without making adequate provision for LGBTQ rights. It is equally clear that LGBTQ advocates cannot pass gay-rights legislation in Congress or in red states without making adequate provision for religious liberty. No state has enacted a new statewide law against sexual-orientation discrimination since Colorado in 2007—with one telling exception. The deep red state of Utah was able to enact statewide protections for sexual orientation and gender identity in housing and employment, but only because it protected religious liberty in those domains in the same bill.

LGBTQ people still face discrimination and need protection now, not after some imagined political realignment far in the future. Many of these cases arise in secular and nonsexual contexts where there is no plausible claim that religious faith is the reason for discriminating. Few Americans, if any, sincerely believe that God wants LGBTQ persons to be unemployed, homeless, or without access to basic goods and services. But all kinds of discrimination against LGBTQ people are entirely legal under federal law and in about half the states.

More than half of Americans live in jurisdictions where state or local laws already protect LGBTQ people from discrimination. But these laws do not strike an adequate balance with religious liberty. Most state-law protections were enacted before the Supreme Court’s marriage decisions and therefore do not address the most religiously sensitive conflicts. This bill addresses some of those conflicts; it leaves others to state law.

Some traditional religious believers would rely on protections in regulations recently issued by the Trump Administration. But these regulations offer no protection for LGBTQ rights, some of them are subject to challenge as lacking statutory authority, and all of them will likely be withdrawn by the next Democratic President as quickly and easily as they were issued. Legislation can also be amended, but doing so is far more difficult, requires a far more elaborate process, and usually requires at least some votes from both political parties. Reliance on the courts is deeply uncertain for everyone involved, but for the foreseeable future the courts are especially unpromising for advocates of LGBTQ rights.

The Fairness for All Act has been carefully negotiated by representatives of the traditional religious community and of the LGBTQ community. It comprehensively addresses the issues, and it addresses them in the context of current law. No negotiated solution is perfect from the perspective of either side. But the negotiated solutions in this bill are well thought out and carefully drafted, and as we said, they would make both the LGBTQ community and traditional faith communities far better off than they are today. In putting together complex legislation, there will always be provisions we might do a little differently, but the interested groups should not let the perfect be the enemy of the good.

The nation’s deep division on these issues is aggravating polarization and contributing to gridlock more generally, and it is making lasting progress impossible for either side. We urge Americans of good will and of all views on these issues to support a negotiated solution. It would be a huge advance for both sides.

Of course we write in our individual capacities as scholars; none of our institutions takes any position on the bill or the issues discussed in this letter.

 

                                                                                          Thomas C. Berg

                                                                                          James L. Oberstar Professor of Law and Public Policy

                                                                                          University of St. Thomas (Minnesota)

 

                                                                                          Carl H. Esbeck

                                                                                          R.B. Price Professor Emeritus of Law and

       Isabelle Wade and Paul C. Lyda Professor Emeritus of Law

​                                                      University of Missouri

 

                                                                                          Douglas Laycock

                                                                                          Robert E. Scott Distinguished Professor of Law

                                                                                          University of Virginia

                                                                                                      and

                                                                                          Alice McKean Young Regents Chair in Law Emeritus

                                                                                          University of Texas

 

                                           Robin Fretwell Wilson

                                                                                          Roger and Stephany Joslin Professor of Law

                                                                                          University of Illinois Urbana-Champaign

 

 

December 6, 2019 in Berg, Thomas , Current Affairs | Permalink

Smith's "Sacred Project of American Sociology" . . . and moral anthropology

For many (Ed.:  Many!) years, we at MOJ have highlighted the importance for law and legal theory of attention to philosophical and moral anthropology -- that is, to an understanding of what human persons really are and are for.  It's about five years old now, but my friend and colleague Christian Smith's The Sacred Project of American Sociology is a great way to enter the conversation on this crucial subject (especially his appendix on "critical realist personalism").

December 6, 2019 in Garnett, Rick | Permalink

New poll shows strong support for school-choice

Meaningful school choice is endorsed clearly in the Church's social teachings.  And, it enjoys strong public support, according to a new poll.

Particularly striking is the fact that large numbers of Democratic voters -- indeed, pretty much the same numbers as on the Republican side -- express support for school choice.  And yet, it is a near article-of-faith among the Democrats' leadership and activists (in particular, the public-employee-union-members base) that choice-and-opportunity-enhancing measures must be opposed and resisted.  A political-market failure, it appears.

December 6, 2019 in Garnett, Rick | Permalink

Monday, December 2, 2019

International Center for Law and Religion Studies Oxford Experience

Designed primarily for early-career academics interested in the field of religion and the rule of law from an international and human rights perspective, the Program has a legal focus, but applicants need not have a background in law.

The application period for this summer has just opened. More information can be found here.

December 2, 2019 | Permalink

Saturday, November 30, 2019

Foreword to Rabbi Dovid Cohen's book of Jewish Wisdom: *We're Almost There*

I'm posting here the text of my Foreword to Rabbi Dovid M. Cohen's excellent book We're Almost There: Living with Patience, Perseverance & Pupose (Mosaica press, 2016).

Foreword

Jews often teach by telling stories and learn by listening to them.  The best stories for teaching and learning are not parables—though there are many wonderful parables.  Rather, they are true stories—stories of the lived experience of men and women.  The book you hold in your hands is a collection of such stories.  From them, you will derive wisdom, though I must warn you that you will shed a tear or two along the way.  (Don’t worry, however, for you will also be rewarded by a chuckle now and then.)

Rabbi Dovid Cohen teaches us by sharing the stories of his life.  He does more, however, than merely recount the facts. He interprets them and shares with us his reflections—invariably thoughtful and instructive—on their meaning.  In doing so, he gives us a window into his life and, indeed, into his soul.  But his stories are not just about him. They are about a people—his people, the Jewish people—a people whose rich traditions and deep spirituality, whose ancient books and modern sages, have shaped him from top to bottom. They give us a window into Jewishness.

Are these stories just for Jews, then?

No. Any gentile—at least any gentile who, like me, is willing to look up unfamiliar Yiddish or Hebrew words—has much to learn from Rabbi Dovid’s stories.  And that is because the Jewish people, though “a people set apart,” are a people with a mission in the world—a divine mission.  They are a people who are called to be “a light unto the nations.”  And, true to that mission, Rabbi Dovid offers enlightenment—wisdom—to anyone who reads his stories thoughtfully and with a desire to learn.

Gentiles and Jews alike face the ordinary and sometimes extraordinary challenges that are the essence of leading a human life.  We come into the world as children, full of wonder and needful of years of attentive care and nurturance. We are rational creatures, yet we have feelings and emotions.  We experience joy and anger, happiness and hurt, affection and pain.  We are required to earn our daily bread. We fall in love, marry, and have children of our own.  As we watch with joy our sons and daughters grow into fine men and women, we watch with sadness our beloved parents grow frail with age.  We have in laws.  And neighbors.  And friends. And people with whom we are not so friendly.  We are, in a sense, locked into our own subjectivity, yet we can share our thoughts and feelings with others.  We are individuals, yet members of communities.  We are material beings, yet also spiritual beings to whom the Almighty has given a share of the divine powers of reason and freedom of the will.  As the Bible says, “we are made in the image and likeness of God.”  Yet unlike God, we are mortal—mere “dust of the earth.” And we live our lives in contemplation of our deaths.

These are, as I say, challenges common to all people in all times and at all places.  Many traditions offer insights into them.  But there is a special perspective—offering a unique body of wisdom—rooted in the experience of the Jews as God’s chosen people.

The great pagan philosopher Plato taught that the “unexamined life is not worth living.” Rabbi Dovid teaches through his stories that it is worth living an examined life.  He has encountered life’s challenges—everything from changing professions to bringing up a disabled child—reflectively, looking for meaning, and finding it.  How is it that he finds it, when so many others say they look for meaning yet find only meaninglessness?  It is because Rabbi Dovid does not stumble around in the dark.  He has a light.  It is the light of faith.  It is in the light of faith that what is invisible in the darkness becomes clear.

Yet the Rabbi’s faith is not an uncritical faith.  Nor does it make all the answers to life’s challenges obvious or easy.  It doesn’t solve the great and sometimes painful mysteries, such as why the beautiful and brilliant daughter of a neighbor suddenly dies at the age of eighteen.  But faith sustains him—and, he teaches, faith can sustain us—in hope and in the redeeming power of the God for whom we, as spiritual creatures, long.  As we come to terms with life’s challenges, seeking meaning in the light of faith, we find ourselves, in a sense, cooperating with God—praying, studying, following His commandments in caring not only for ourselves but for others.  And in this cooperation, we experience not slavery, but rather freedom, the freedom that faith-sustaining hope alone can make possible.

Robert P. George,  Princeton University

November 30, 2019 | Permalink

Universalism, means-testing, the "Nordic model" . . . and school choice

A recent issue of Commonweal includes a short piece by Max Foley-Keene called "Equality Isn't Cheap."  Among other things, the author compares the "Nordic Welfare Model" to the "basic-security" model and argues that:

[a] welfare regime based on means-testing and income targeting . . . necessarily divides those who receive benefits from those who don’t. That leads non-recipients to grumble about having to subsidize an underclass of moochers, while recipients are subject to dehumanizing stigma. Such programs tend to be socially divisive and politically unstable. In contrast, universal programs promise to transcend existing economic cleavages and create broad social solidarity, because everyone benefits; this solidarity, in turn, helps protect universal programs from political attack.

He concludes by calling for "a politics that recognizes the satisfaction of social needs as a communal responsibility, that builds broad solidarity around preserving public goods, and that doesn’t fret over spending some cash."

Readers can decide for themselves whether the model Foley-Keene discusses is (in the United States) feasible or morally attractive.  I did want to note, though, that from a Catholic perspective -- and notwithstanding the common view that the model or something like it is consistent with, or even supported by, the Church's social teachings -- it cannot be that the state assumes for itself the provision, and "crowd[s] out" non-state providers, the "basic necessity" or "social benefit" of "education."  This is because parents have the moral, and in justice the legal, right to direct and control the education of their children and religious communities have the right to operate schools.  As is stated in Dignitatis humanae:

Government, in consequence, must acknowledge the right of parents to make a genuinely free choice of schools and of other means of education, and the use of this freedom of choice is not to be made a reason for imposing unjust burdens on parents, whether directly or indirectly. Besides, the right of parents are violated, if their children are forced to attend lessons or instructions which are not in agreement with their religious beliefs, or if a single system of education, from which all religious formation is excluded, is imposed upon all.

November 30, 2019 in Garnett, Rick | Permalink

Wednesday, November 27, 2019

Further to "Honest Journalism?" (correspondence)


Further to my post "Honest Journalism?" here is my correspondence with Thomas Edsall, beginning with his message requesting a transcript of my Catholic Information Center speech. (Update and correction: My reference to a paper of mine in the Cambridge Companion to the Philosophy of Law should have been to the Cambridge Companion to Natural Law Jurisprudence.)

-----------------

From: Thomas Byrne Edsall 
Sent: Wednesday, November 6, 2019 4:31 PM
To: Robert P. George
Subject: Request for speech transcript NYT

Dear Professor George

Could you possibly send me a transcript of your speech:

“Robert P. George Keynote Remarks | 2019 John Paul II New Evangelization Award Dinner”

Thanks.

Tom Edsall

New York Times Columnist

https://www.nytimes.com/column/thomas-b-edsall

Columbia Graduate School of Journalism

https://journalism.columbia.edu/faculty/tom-edsall

------------------

From: Robert P. George 
Sent: Wednesday, November 06, 2019 4:47 PM
To: Thomas Byrne Edsall
Subject: RE: Request for speech transcript NYT

Dear Mr. Edsall:

Here is a link to my remarks, which were posted at the Catholic law professors blog “Mirror of Justice”:  https://mirrorofjustice.blogs.com/mirrorofjustice/2019/10/remarks-at-the-2019-catholic-information-center-annual-dinner.html

I’m taking the liberty of attaching a paper I have some years ago at a conference at the Vatican. It provides background for the after-dinner remarks I made at the event at the Mayflower Hotel.

It has been some years since we’ve been in touch. I hope you are doing well.

Sincerely,

Robert George

_____________

From: Thomas Byrne Edsall 
Sent: Thursday, November 7, 2019 2:19 PM
To: Robert P. George 
Subject: RE: Request for speech transcript NYT

Dear Professor George

Thanks very much for sending the speech and the earlier Vatican conference paper. Both are very interesting and raise a series of questions. I don’t pose these questions to dispute your statements; instead, I think your views need further explication.

You argue the faithful must have the courage to “boldly bear witness to truths that are unpopular among those controlling the levers of cultural, political, and economic power” and that they must have the courage to engage the battle.

First question: Can you be more specific about how to go about engaging the battle? Through some sort of dissent, or confrontation? Is persuasion adequate? How forceful do the faithful need to be? How do you win when you are outnumbered and in the minority?

Second, who are your adversaries? The overwhelming take-over of much of corporate America, including most especially the entertainment media, suggests that there is money to be made by accomodation to and promotion of a libertine culture. Is the free market and capitalism your enemy?

If you want to do battle with paganism, isn’t your primary opponent Donald Trump, who, more than any Democrat, would appear to personify paganism? If that is the case, how do you deal with evangelical protestants and many if their leaders who have abandoned many previously held moral standards for politicians and fallen overwhelmingly in line behind Trump.

Probably the most secular and non-believing constituency is made up of well-educated whites, including many Princeton students. A high percentage, if not a strong majority, support views on sexual behavior that you consider anathema. In terms of actual behavior, however, this group has shown a decline in divorce and out of wedlock childbearing, a goal I think you support, while these dysfunctional behaviors are now growing in the white working class, which is at least nominally more socially conservative. How do you explain this?

I would be grateful for you thoughts,

Best

Tom Edsall

Thomas B. Edsall

New York Times Columnist

https://www.nytimes.com/column/thomas-b-edsall

Columbia Graduate School of Journalism

https://journalism.columbia.edu/faculty/tom-edsall


----------------------

Dear Mr. Edsall:

I’m returning from London and Oxford to the U.S. and I’ve taken a few minutes on the flight to reflect on your questions. What I can offer are reflections prompted by them, rather than answers to them. That’s because in most cases I don’t know the answers.

What I’m asking people—my fellow Catholics and others—to do is to think more deeply than ever before about what they believe and why they believe it so that they can go out into the world and give the reasons for their beliefs, especially those beliefs that are unfashionable and even reviled in the most affluent and influential sectors of society.  That’s what I mean by “boldly bearing witness to truths that are unpopular among those controlling the levers of cultural, political, and economic power.” I conceive the “battle” as a war of ideas—ideas about what is right and wrong, good and bad, just and unjust. I believe in the luminosity and power of truth—I completely buy what Pope John Paul II said in his encyclical letter Veritatis Splendor—but truth does not go out and state itself. If it is to be heard, someone’s got to speak it. And where it is unpopular, where people can suffer adverse personal or professional consequences for speaking it, that takes courage. Some Catholics seem to think they are entitled to stay silent about such truths; they suppose it’s the task of the bishops to speak it to the culture. This reflects the sort of clericalism that the Second Vatican Council tried finally to shake off. It has done a lot of harm to the Christian religion (especially among the Catholics and Eastern Orthodox) historically and, as Protestants have long rightly pointed out, is unbiblical. Truth-speaking is every Christian’s job. (I actually think it’s every person’s job.)

How forceful am I asking people to be? Well, I don’t think we need a lot of screaming and shouting and I’m certainly against any form of intimidation or violence. Period. Because I believe in the luminosity and power of truth, I don’t mind people speaking it gently—and I think it should always be spoken lovingly. On my understanding (and the historic Christian understanding—shaped not only by the Bible but profoundly by Aristotelian philosophy mediated especially through the great medieval Christian philosophers and theologians) moral truth is what it is because human nature and the human good are constituted in a particular way. Moral norms are shaped by the requirements of human flourishing (what Greeks like Aristotle had in mind in speaking of eudaimonia). Even those truths that strike people in a given set of cultural circumstances as challenging truths, hard truths, demanding truths—if they be truths at all—are, from the point of view of the tradition(s) of thought from which I speak, grounded in humanistic ideals—the desire for people to flourish. It is important to see that on this account (whether in its Christian or Greek articulations) flourishing is not a matter of doing what one wants, or getting what one desires, or even being whom one chooses to be (in the modern quasi-existentialist or contemporary identitarian senses). There is an objective standard of flourishing (because there is a determinate human nature and, correspondingly, human good). At the same time, within a broad range, individual lives (and communities) reasonably differ because the human good, though determinate is variegated. Most of our choices are among reasonable, morally upright options—and in making them each of us fashions a life, and we human beings taken altogether fashion billions of interestingly different human lives (and we create very different cultures). But some of the choices we face are between what is morally right and what is morally wrong.  I’ll attach a paper of mine from the Cambridge Companion to Philosophy of Law that expands on what I’m saying here.

Of course, there are reasonable people of goodwill who disagree with the Catholic/biblical/natural-law understanding of morality, and they should be engaged in respectful dialogue and civil debate. I’ve written about this and done a great deal of speaking about it (both in formal classroom settings and at public events) with Cornel West. I’m against treating intellectual opponents as enemies. I regard them as partners in the truth-seeking project. One of the questions you asked was “Who are your adversaries?” Well, as I suggested in my CIC remarks, quoting at length Professor Mark Tushnet of Harvard, they are people who, for example, want to treat devout Catholics and Evangelicals, observant Jews, faithful Mormons, Muslims, and other believers in traditional moral norms “the way we treated the defeated Japanese and Germans after World War II.” They are people who join Beto O’Rourke in wanting to selectively yank the tax-exempt status of churches who refuse to conform to secular progressive ideology on questions related to marriage, sexual morality, and the sanctity of human life. They are the woke (of whom President Obama recently and rightly complained) who want to shut down dissenting speech on the campuses of colleges and universities that advertise themselves as non-sectarian and open to the full and free range and exchange of ideas, and turn these institutions into engines of indoctrination that would embarrass even most religiously-affiliated colleges and universities. They are people who want to bully dissenters into silence or acquiescence, and who smear decent, honorable people as the equivalent of racists. They are people who put words like religious liberty and conscience in quotation marks (“religious liberty,” “conscience”) and who would force decent, honorable Christians, Jews, Muslims, and others to choose between violating their consciences (no quotation marks) and giving up their businesses or professions. They are people like the mayor of Atlanta who fired Kelvin Cochran and the people at Mozilla who did in Brendan Eich. They are people like those who concussed the liberal international relations scholar Allison Stanger at Middlebury or those who threatened the Bernie Sanders-supporting Brett Weinstein and Heather Heying, eventually driving them out of Evergreen State, because they were not woke enough.

Your question about capitalism is, of course, an old one, but remains a good one. The concern you mention was among the considerations at the heart of Catholicism’s historic wariness about capitalism. And it is famously why Irving Kristol gave capitalism (only) two cheers. This is a question I need to give a good deal more thought to, but I’m inclined to think Kristol got it right. The market is a good thing, but it is not good-in-itself. It is a means, not an end. It can lift people out of poverty (good!) and it can generate trade in drugs, porn, and even human beings (very bad!). The market itself must be regulated, and moral considerations need to be among those taken into account in deciding what regulations are reasonable and desirable. Here’s how I put it in the attached paper on “Constitutional Structures”:

Surely a conception of the common good that is serious about the principle of subsidiarity will respect private property and take care to maintain a reasonably free system of economic exchange—that is to say, a market economy, though it will not suppose that nothing should be publicly owned (think of public highways, for example, or municipal buildings, parks, prisons, public schools, and the like) or that the market may not legitimately be regulated to protect public health, safety, and morals (to again use the classic common law formulation of the purposes of law and government), prevent exploitation and abuse, monopolization and the restraint of trade, price gouging, predatory lending, and other unfair practices, and so forth. We should not suppose that socialism and laissez-faire are the only, or only principled, options.

You asked about Donald Trump and paganism. I’ve never bought the argument that many Evangelicals and conservative Catholics make for supporting Trump. I understand it, I think. And I don’t think that people who make it are idiots. (A lot of my relatives and friends where I grew up in West Virginia support Trump—and they are decent, intelligent people.) My own judgment, though, is that it’s unsound. The essence of the argument is that Trump is King Cyrus: “Yes, he’s a pagan; but God is nevertheless using him to protect us against the hegemonic forces that seek our destruction.” Trump is transactional. That’s it. As far as I can tell, he has no very firm convictions (except perhaps that free trade is bad). Whatever the ultra-embarrassing Paula White (“the President’s pastor”) may say, he’s the same Donald Trump who used to proclaim his allegiance to “New York values” and support dilation and extraction (“partial-birth”) abortion. Was it Palmerston who said, “countries don’t have permanent friends, they only have interests”? Well, President Trump doesn’t have permanent beliefs, he only has interests. And for now it is in his interest to fulfill many of his promises to social conservatives (no public funding of abortion or abortion advocacy; conscience protection; judges). But the deal seems to be that social conservatives, in return, go silent on policies (and other things about him) that they in fact don’t (or at least shouldn’t) like. I agree with the Trump supporters that, with the Democrats moving further and further leftward (beyond Obama and way beyond Clinton), the election of a Democratic President and Congress would have catastrophic consequences for religious conservatives and things we deeply believe in. My long-term (or perhaps even medium-term) worry, though, is that the things we believe in will be discredited by the taint of association with the President. Here are a couple of items pertaining to my own attitude towards President Trump:   https://www.newsmax.com/Headline/catholic-leaders-oppose-trump/2016/03/07/id/717955/ and https://www.wthrockmorton.com/2016/06/20/evangelicals-meeting-with-trump-brothers-and-sisters-what-else-do-you-need-to-know/ (please see the quotation of me in the article).

You asked about who I regard as my adversaries and I offered some thoughts about that. It might help to illuminate things if I said who I regard as my allies: certain Evangelical thinkers and leaders, including white Evangelicals like Russell Moore and African-American Evangelicals like Rev. Eugene Rivers; Jewish thinkers and leaders like Rabbi Meir Soloveichik (who spoke at the CIC dinner: https://cicdc.org/video/rabbi-dr-meir-soloveichik-remarks-2019-john-paul-ii-new-evangelization-award-dinner/?fbclid=IwAR2wriam0TUxCbBDLmRh0b628bQa6nHJneoZ1XKKodfU-6As-Ettgn-pfks) and Rabbi Jonathan Sacks; Mormons like Katrina Lantos Swett and Matthew Holland; Muslims like Shaykh Hamza Yusuf and Ismail Royer; and fellow Catholics like Mary Ann Glendon and Archbishop Charles Chaput. These are people who share my view that we are in a tragic dilemma politically and the most important thing any of us can do is try to keep our wits about us, and to quote myself (but I think they’d all agree), “bear faithful witness”—which means openly speaking the truth as best we understand it no matter whether the ox being gored is Democratic of Trumpian.

You asked about Belmont and Fishtown. I’m far from entirely sure what to make of it. The only thing I’m confident about is that Murray is right that we need the folks in Fishtown to practice what many preach (but fail to practice) and we need the folks in Belmont to preach what many practice (but fail to preach—and sometimes even preach against). As early as 1965 Moynihan saw that the material consequences of sexual anarchy and the fatherlessness that comes in its train (as family breakdown and the failure of family formation become more common) would bear down hardest on the poorest and therefore most vulnerable sectors of the community. What he didn’t foresee, I think, was that what began in largely minority sectors would be replicated in white rural and working class communities. But it’s scarcely a surprise that it did. Anyway, people in Hollywood and other celebrities can, in a sense, afford to live the lives I read about on the covers of People magazine when I’m in the check-out line at the grocery store. People in Watts—or in West Virginia—can’t.  And yet, as you say, and as Murray, Brad Wilcox, David and Amber Lapp, and other sociologists have shown, the recent trends are for the affluent to lead more conventional lives—with even the divorce rate for them (after rising for many years) now falling. Are these the children of divorce, who want to make sure their children do not go through the same trauma? Are they people who have figured out that divorce, out-of-wedlock child bearing, etc. tend, even among the well-off, to damage people’s financial standing and even lower their standard of living? Is there some other explanation? (Typically in these matters the explanations are “multi-factorial”.) The sociologists will have to figure it out and let us know.

Well, those are my thoughts. As I said, they are necessarily more in the mode of reflections than answers. The older I get, the odder, or at least more complicated, the world seems to get, and the more impervious it seems to become to being figured out—at least by me.

Best wishes,

Robert George

November 27, 2019 | Permalink

Honest Journalism?

I know that some people believe that "honest journalist" is a contradiction in terms, but I personally know lots of honest journalists. They tell the truth. When they quote people, they do it accurately and provide the context of the quoted words so that no false impression of what was said will be created. When they quote someone quoting someone else, they make that clear, too. When someone is responding to something someone else is saying, they also make that clear.

I point these things out in order to invite readers to look at this column by veteran New York Times writer Thomas Edsall. It is mainly an attack on Attorney General William Barr for the controversial speech he recently gave at the University of Notre Dame. But he also takes shots at two other conservative Catholic writers, Mary Eberstadt and me. Here's what he says in reference to me:

"Not to be outdone, Robert George, a professor of jurisprudence and the director of the James Madison Program in American Ideals and Institutions at Princeton, declared in a speech at the Catholic Information Center’s annual dinner on Oct. 23 that the sexual revolution has produced a paganism reminiscent of pre-Christian Rome: “The neo-pagans are in no mood to be accommodating,” George said:  "Christians and others who dissent from progressive orthodoxy can expect 'the hard line approach'. We are to be treated like the defeated Germans and Japanese after World War II."

Well, yes, I did say that "we are to be treated like the defeated Germans and Japanese after World War II."  But I was expressly quoting a respected and influential mainstream left-wing scholar at Harvard Law School: Mark Tushnet. And it was Tushnet who explicitly called for treating social and religious conservatives with a "hard line" like the defeated Germans and Japanese were treated by the victorious allies after the Second World War.

Here are Tushnet's words (which I quoted--expressly noting that I was quoting them--in the speech to which Edsall refers):

"The culture wars are over; they lost, we won. … For liberals, the question now is how to deal with the losers in the culture wars. That’s mostly a question of tactics. My own judgment is that 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 … (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." (Mark Tushnet, blog post, "Abandoning Defensive Crouch Liberal Constitutionalism, May 6, 2016)

Edsall's omitting the fact that I was quoting Tushnet (and taking him at his word) was deeply dishonest. It's the kind of conduct that gives journalists and journalism a bad name, and gives conservatives good reason to doubt the honesty of outfits like the New York Times.

Here's Edsall's column:

https://www.nytimes.com/2019/11/27/opinion/barr-liberals-family.html

Nothing would please me more that for readers to read the column, my speech, and Tushnet's blog post and judge for yourselves. 

 

November 27, 2019 | Permalink

Sunday, November 24, 2019

Christ the King and "Quas Primas"

Re-upping this, from 8 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 24, 2019 in Garnett, Rick | Permalink

Thursday, November 21, 2019

Fatherhood needs support from Church and Society, State can't go it alone

During my semester of serving as a certified legal intern for the public defender's office in juvenile court, representing children who have been accused of committing acts that would be crimes if committed by an adult, I have experienced and learned a lot.  And as a product of seemingly unrelated reading, including Catholic bioethics and American Constitutional law, I would like to discuss the issue of "fathers," starting with this question:

Can a "morally neutral" culture create anything good? 

Sure, but only by chance, or consensus, or when seasonal conditions allow since there is, by design, no authoritative agreement on what's good and what's not.  Failures in fatherhood are a social problem in our culture, truly a moral problem and enigma; a problem that is bigger than anything I could hope to solve, or even understand, as a law-student intern working with kids who need adequate care in addition to some moral correction.  The problem is this: in the lives of juveniles who are judged by the state to be "delinquent," what is the role of "a father" and who can make a man into a good father?  

Most of the clients I've represented do not have a father who is present in their lives.  But every single human being does indeed have a male origin, in addition to their mother.  No person alive today exists but for the union of one male and one female, cooperating with the gift of life which God has given to humankind.  Perhaps more "provable" than the origins of the first man and first woman is the present-day fact that "male and female [God] create[s] them"—that is, all babies, all children, each one of us—that was us, created by a male and a female, not by ourselves.  Most of these young people have a mother who is present, or some other family.  But it has been rare to see a father in the courtroom, and even rarer to see the birth-father.  And when he is there, things seem to turn out "better" for the kid, i.e. they don't sit in state-controlled detention, but they get to go home.
 
Maybe the only ultimate answer which doesn't "drill down" any further is: each man himself is responsible for becoming and being a good father, because who can be forced to be good?  Or who can be good for (in place of) another?  Part of my intent is to place blame on men, all men, for we have failed to build a society of men who take honor in being good fathers, and who condemn appropriately all those vices which lead men to abandon their duties instead of shouldering them.  
 
Three social players shape boys into the men they may become: Church, State, and Society.  Briefly, 1) how do each of these approach the role of "fathers"? and 2) what tools do they have to stem the problem of fatherless delinquents?  This is no expert analysis, but it's a soul-crushing problem seeing it face-to-face, even once a week, for a semester, so this is my best shot.
 
The Catholic Church tells men they are created in God's image and called to be virtuous, and the Church claims to have the moral authority to tell men who they are, and how they ought to be.  It tells men to take up their crosses daily, to lay down their lives for others in acts of love, and to be like Christ.  The Church says that marriage or holy orders—both forms of fatherhoodare two primary vocations in life for men.  The Church teaches that men and women are both inherently dignified by being each created in God's perfect image.  Therefore neither is complete in themselves, and all human persons have an inherent dignity which is irrespective of their sex, but they are not "the same"—rather, they are both good, both needed, both an image.  The Church tells men to love their wives, to not be harsh with their children, to provide for their families or risk being kicked out of Christian community (not providing for your relatives, especially your household, is to deny the faith and be damnable).  The Church thus speaks harshly, appropriately, to men who would faint at the obligations of family.  And it holds up a good wife and children as gifts from God—good things, not pathologies.  It tells men: this is who you are, as men you are sons of the Good Father, and as men, being men, you are made to be good fathers; not perfect, but good.
 
Our State tells men they may be required to pay financial restitution for their absence in the lives of their children and their wives (or children's mothers), it tells men to take responsibility for their actions and they will be rewarded.  The State has power to arrest a man and impose jail time as an attempt to compel him to pay this money.  Neither of these replaces a father, obviously, but the State can provide very beneficial services like health care, counseling, and some education.  The State also has the power to remove an abusive father with jail time or restrictions.  The State can give financial benefits to married couples through tax structure, and other recognition which may slightly encourage men to be committed fathers.  The State is forced to deal with young people who don't have adequate care at home when these young people "get into trouble"—where else will they go?  Who will be a father to them?  A pair of parents would be better suited to handle unruly children than one parent alone.  Who can work and keep a teenager out of trouble at the same time?  It's a miracle when it happens, and it should not be ignored.  Juvenile detention is sometimes better for a child than their home life; this is unfortunately true.
 
Our Society tells men they should be kind, they should take responsibility for their actions, they should provide for the needs of others, and they should at the same time be whatever they want to be.  Even if some in our society do encourage fathers, does our current society, with its highest value seeming to be some sort of moral "neutrality," have the tools to do it effectively?  Is "men being men" associated with good fatherhood?  Can we do this?  Should we?  I think we need to do something, but maybe it's hopeless or too fraught with the risk of offending others... Let's not give up so easily.
 
Our society doesn't seem to do much to tell men: You should seek to be a good father.  You should be a good husband, and you have inalienable moral duties to any human beings you create, and any woman you procreate with, whether you want it or not, figure it out beforehand—it's on you.  You should be a good son and a good brother.  You should be a good man, and this entails being a father in one way or another.  And you are made for this, so you can do it.  
 
But there is so much brokenness, and there are so many heart-breaking cases.  Who can take away the sins of the entire world?  It seems impossible that the past suffering of others could be made right by someone else, it seems that harmony could be out of reach.  But maybe we can do more than we think.  And maybe the Church needs to speak more to men, telling us not to neglect fatherhood, but to aspire to it above all other status.  Whether this is seen as "heteronormative" or just what we need right now, I think it would be good.

November 21, 2019 in Current Affairs , Religion | Permalink

Wednesday, November 13, 2019

Evangelical Higher Ed Institutions on (and for) DACA Recipients

The president of the major association of of evangelical Protestant higher-education institutions, the Council of Christian Colleges and Universities (CCCU), has issued a statement in conjunction with the Supreme Court arguments on the DACA-recission case. The CCCU has supported protection for "Dreamers" for a long time, and in the current case it joined an amicus brief supporting DACA's legality. I blog this not for the purpose of discussing the legal issues in the case or endorsing the challenge to the recission.

I only want to call attention to the participation of "Dreamers" in CCCU institutions as one of the countless instances in which faith-based institutions with "traditional" views are contributing to the common good--and in particular, are living and working with, and helping to empower, communities that are vulnerable in some way. Indeed, in significant parts of the country evangelical (and Catholic) higher-education institutions have high percentages of student of color. In our politically polarized times, such work is too often ignored. This is an opportunity to pay attention to it.

From the statement by president Shirley Hoogstra: 

This is very close to home for one of our campuses as Norma Ramírez is a PhD candidate in clinical psychology at Fuller Theological Seminary [a CCCU member] and one of the plaintiffs in the case. You can read more of her story here. You can also watch this video to hear from her directly.

       The CCCU has supported a permanent solution for Dreamers since the DREAM Act was first introduced in 2001. As part of our ongoing court strategy, we recently signed on to two amicus briefs addressing the Supreme Court cases on DACA. These briefs target crucial ideas to our immigration policy perspective; they argue for the protection of DACA recipients as they contribute to society and to our institutions and in the promotion of defense of human dignity.

       The CCCU continues to support a bipartisan, legal, permanent legislative solution for DACA recipients, and feels the urgency of this issue for our students, their families, their employers, their churches, and their communities. What’s at stake? These young people have become integral parts of their communities, and removing them from the U.S. would impose a huge financial, as well as emotional, burden on the country. Beyond the economic arguments, though, we also feel a moral imperative. The CCCU believes that all persons are made by our Creator God, are made in His image, and therefore are endowed with dignity (Genesis 1:27). These young people—and those around them—need stability in order to thrive. Mass deportation would unconscionably break up families.

November 13, 2019 in Berg, Thomas , Current Affairs , Religion | Permalink

"[I]f burning incense to the Founders will help us advance our cause today, I'm fine with it."

Strike two for Sohrab Amari? Actually, just another wild pitch. First the beanball at David French, now a heater inside and low for Mark David Hall. Who is on whose team here?

Screenshot 2019-11-13 09.38.50

Fortunately, Ahmari has already walked back any idolatry-accusing implication of his "burning incense" tweet. Ahmari didn't mean to say Hall was an idolater, he clarified, but that he was willing to join Hall in paying civic reverence. 

Screenshot 2019-11-13 09.36.32

This clarification in place, we can think about a hard question surrounding a stance on which Ahmari, French, Hall, and many others agree. That stance is that it is appropriate to pay some civic reference to the Founders. A hard question about it: How do we establish and maintain appropriate boundaries around this civic reverence?

Suppose, for example, you are as anti-Jefferson as Ahmari and I are. It only makes sense that you would make your anti-Jeffersonian case by reference to Alexander Hamilton (as Ahmari has) or John Marshall (as I have). One might even try to rally people around a symbol of one aspect of our current constitutional order in which one set of powerful American Catholics  is positioned over the next decade or so to repair damage done by other powerful American Catholics in the past several decades.

We all need to make sure, though, that whatever-the-word-is-for-appropriate-filiopietism does not slip into idolatry. Civic reverence must be subordinated to reverence for the one true God. And it is here that things can be exceedingly tricky in a polity in which "law is king." With that function spoken for in the realm of civic orthodoxy, what about priest and prophet?

To simplify, perhaps oversimplify, Ahmari's exercise of a prophetic function appeared to cast Hall in the role of priest for an idolatrous cult of the Founders. Ahmari then clarified that he meant paying reverence of a different sort. This is very challenging. How, if at all, can we maintain a prophetic stance from the point of view of true reverence, while also performing and policing priestly functions in the subordinate realm of maintaining civic orthodoxy?

November 13, 2019 in Walsh, Kevin | Permalink

Sen. Rubio's Catholic University of America speech

A little while ago, Sen. Marco Rubio gave a speech at the Catholic University of America, which -- among other things -- held up the Social Teaching tradition of the Catholic Church (including Pope Leo XIII's Rerum novarum) as a helpful guide to thinking about economic and social policy in the United States.  (Here is a report on the speech, from America magazine.)  Because it was a public address by a politician, it had its share of slogans and bumper-sticker lines, and of high-sounding quotations from the quotable.  In my view, though, it was welcome and should be charitably engaged by those of us who think that tradition has something to say to the project of ordering our lives together and is not the sole property or platform of either of our two major political parties.  There's no need, as I see it, for churlishness or condescension, simply because (a) the Senator is not a trained theologian or (b) he's a Republican who is clearly thinking about a path to higher office.  I thought, for example, the (different) reactions of Stephen Schneck and Chad Pecknold were helpful.  More like this, please. 

UPDATE:  And, less like this (more churlish and partisan) one.

November 13, 2019 in Garnett, Rick | Permalink

Monday, November 11, 2019

Announcing the winners for the Zacharias Prize in Professional Responsibility

From MOJ-friend Prof. Sam Levine (Touro) comes this news:

The winners have been selected for the tenth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  This year's co-winners are Michael Moffitt, Settlement Malpractice, 86 U. Chi. L. Rev. 1825 (2019), and Jessica A. Roth, The "New" District Court Activism in Criminal Justice Reform, 74 N.Y.U. Ann. Surv. Am. L. 277 (2019). The award will be presented at the AALS Annual Meeting in Washington, D.C., in January.

Congrats!

November 11, 2019 in Garnett, Rick | Permalink

Is heresy more damaging to orthodoxy than apostasy?

It is useful for anyone interested in the maintenance of orthodoxy to bear in mind the difference between heresy and apostasy. The Code of Canon Law sets forth this distinction in Canon 751, which differentiates among heresy, apostasy, and schism:

Can. 751 Heresy is the obstinate denial or obstinate doubt after the reception of baptism of some truth which is to be believed by divine and Catholic faith; apostasy is the total repudiation of the Christian faith; schism is the refusal of submission to the Supreme Pontiff or of communion with the members of the Church subject to him.

The distinguishing factor here seems to be rejection of part of the faith ("some truth which is to be believed by divine and Catholic faith), as compared with rejection of the whole ("total repudiation of the Christian faith"). There are different ways in which heresy and apostasy may each be more damaging than the other in certain respects. But from the point of view of maintaining orthodoxy within a community, heresy seems more dangerous in that it might travel under the appearance of orthodoxy precisely because it differs from orthodoxy only in some truth rather than in repudiation of the faith itself.

 

November 11, 2019 in Walsh, Kevin | Permalink

Friday, November 8, 2019

Saint John Henry Newman and Freedom of Conscience: Countering a Modern Apostasy

In the 130 years since John Henry Newman’s death, few concepts have been more misunderstood and distorted than “conscience.” The danger is greater today than when the great saint wrote. The distorted view of conscience that Newman described as oriented to self and not to God has penetrated Western culture and religion. For many, the obligation to follow one’s conscience has been embraced, but fidelity to truth has been set aside. This untethered and counterfeit “freedom of conscience” has led to a widespread subjectivism that Newman saw emerging within modern European society, even in his own day.

Read more at Public Discourse.

November 8, 2019 | Permalink

Wednesday, November 6, 2019

A Defense of Religious Freedom from the Human Rights Perspective

Religious Freedom Under Scrutiny argues that without freedom of religion or belief, human rights cannot fully address our complex needs, yearnings, and vulnerabilities as human beings. Furthermore, ignoring or marginalizing freedom of religion or belief would weaken the plausibility, attractiveness, and legitimacy of the entire system of human rights.

Read more at the Law and Religion Forum.

November 6, 2019 | Permalink

Tuesday, November 5, 2019

A Few Items on June Medical Services v. Gee

This case, now on the Supreme Court's docket, concerns a Louisiana law requiring that physicians who perform abortions at clinics obtain admitting privileges at area hospitals. In this podcast, Mark Movsesian and I discuss the case: the 5th Circuit opinion, the petition, and the cross-petition. And in this post, I consider some of the arguments about standing advanced in the cross-petition.

November 5, 2019 in DeGirolami, Marc | Permalink

Saturday, November 2, 2019

What Notre Dame’s Fighting Irish can teach us about American Catholicism

A very informative and interesting article by Rachel Lu about the history of the Fighting Irish. Great pre-game reading before today’s game.

November 2, 2019 | Permalink

Thursday, October 31, 2019

Touro Law Center's 6th Annual National Moot Court Competition in Law & Religion

Touro Law Center has announced its Sixth Annual National Moot Court Competition in Law and Religion.  The competition will take place in April of 2020.  Information and registration can be found here.  Congratulations to Touro for maintaining such an excellent competition.

October 31, 2019 | Permalink

Remembering the English Martyrs on "Reformation Day"

Martyrs

St. Margaret Clitherow, pray for us!

October 31, 2019 in Garnett, Rick | Permalink

Wednesday, October 30, 2019

Founding Deists and Other Unicorns

We cannot consider whether or not America had a Christian founding without having an idea of what the phrase Christian founding actually means. James Bruce reviews a new book by Mark David Hall at Law & Liberty.

October 30, 2019 | Permalink

Saturday, October 26, 2019

Remarks at the 2019 Catholic Information Center Annual Dinner

 

Remarks at the Catholic Information Center Annual Dinner

Mayflower Hotel, Washington, D.C.

October 23, 2019

Robert P. George

 

It was the distinctive claim of late-20th century secular liberal political philosophy that sound principles of justice require that law and government be neutral as between controversial conceptions of the human good.

Critics, including me, argued that the “neutrality” to which the orthodox secularist liberalism of the period aspired (or at least purported to aspire) was neither desirable nor possible. That political philosophy was, we argued, built on premises into which had been smuggled controversial substantive ideas—liberal secularist ideas—about human nature, the human good, human dignity, and, indeed, human destiny—ideas as substantive and controversial as those proposed by Catholicism, Judaism, and other so-called “comprehensive doctrines,” be they secular or religious.

Today little effort is made by secular liberals (or “progressives,” as many prefer to be labeled) to maintain the pretense of neutrality. Having gained the advantage, and in many cases having prevailed (at least for now), on battle front after battle front 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, in corporate America, and even in much of religion—including making inroads into the Catholic Church), there is no longer any need to pretend.

Take, as an example, the issue of marriage. Today virtually no one on either side doubts that marriage as redefined by the Supreme Court embodies substantive ideas about morality and the human good—ideas that differ profoundly from those embodied previously in marriage law, ideas that, according to partisans of the redefinition of marriage, are to be preferred to competing ideas, such as the biblical and natural law understandings of marriage, 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 an important recent book Steven Smith gives it a name: paganism. Now, this label is, of course, 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, and I now am, deploying the term “pagan” as an epithet. But we mean something quite specific by the word—we use 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 contemporary secular progressivism shares 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 secular progressives from orthodox Christians and Jews—and, one could add, Muslims—today are ideas and beliefs they have in common with the people whose ideas and beliefs Judaism and Christianity challenged in the ancient world.

Secular progressives, no less than people of other faiths, hold cherished, 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 are nevertheless sacred to them—things they live for and would be willing to fight and even die for (for example, what they regard as racial justice, LGBT rights, environmental responsibility, etc.). They have faith—and a faith. Just look at the child-preacher Greta Thunberg. But what is it about the secular progressive faith that warrants our labeling it “pagan”? After all, though not theistic, it is certainly not (in any literal sense) polytheistic. Professor 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 ultimate home—we are, in a sense, “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. There were many of these in the Roman empire. 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, justice, and the common good—ideas that challenged pagan ideas and practices in a variety of areas, some of them profoundly important.  A central area was sex.

As Smith notes, within the pagan “matrix of assumptions, the Christian view of sexuality was not only radically alien, it was close to incomprehensible.” This is certainly true 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 conjugal, that is, as the one-flesh union of sexually complementary spouses, is not only “alien” to secular progressives, who understand “marriage” merely as a form of sexual-romantic companionship or domestic partnership, but nearly incomprehensible—except, that is, as what they suppose is 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 non-marital 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 recent book on the transformation of beliefs about sexuality and morality in the ancient world, sexuality “came to mark the great divide between Christians and the world.” Christian ideas, rooted in Jewish thought, 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 co-exist with the dominant paganism were allowed to do just that. But the Romans always found the Jews to be troublesome, and they perceived Christianity—a convert-seeking religion—when it came along as a grave threat. And Christian ideas about sex (and, in consequence, about Roman sexual practices) figured significantly in that perception. They feared that Christianity would, in Steven 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 convinced a lot of people that sexual satisfaction is a human need—that psychological health and wholeness generally require frequent regular sexual activity, which may be inside or outside of marriage, and that Judaeo-Christian norms of sexual morality, when embraced, result in stilted, even twisted, personalities. In the 1950s, Hugh Hefner 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. Dissent is not permitted. Claims to religious freedom are dismissed as mere excuses for discrimination. “Bake the cake, you bigot!”

Christians, observant Jews, and other traditional religious believers have been knocked back on their heels. Reversing the sexual revolution (despite the growing evidence of its baleful social consequences, especially for children) seems nearly 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. In pushing the redefinition of marriage, they insisted that all they were seeking was “live and let live.” Of course, that claim has already proven to be, if I may 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 re-paganized, 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 neo-pagans are in no mood to be “accommodating.” Christians and others who dissent from progressive orthodoxy can expect “the hard line approach.” We are to be treated like the defeated Germans and Japanese after World War II.

For faithful Catholics and our allies in dissent from neo-pagan orthodoxy, then, the question is “what is to be done?” How should we respond to the “hard-line” approach—an approach that will indeed be, and in fact is being, implemented by people who want to ensure that we never again get near the light switch and that we are properly punished for having switched off the lights to the party in the first place?

Some Catholics and other religious folk, including some entire denominations, have already taken the path of capitulation and acquiescence. They maintain the visible forms of faith while yielding its moral substance. They have made themselves the “useful idiots” of neo-paganism (to borrow Stalin’s famous characterization of the anti-anti-Communist liberals of his time). Obviously that is not an option for serious believers. So what do we do?

Often the question is posed as “flight or fight?” I’ve never been completely clear about what Rod Dreher, whom I admire, has in mind by the “Benedict Option.” He has described it as a “strategic retreat,” but also says that it doesn’t mean that we should not stay involved in the world. I certainly agree that we need to stay involved in the world—we have an obligation as believers to bear faithful witness to the values and principles we know are integral to justice and human flourishing—but I don’t see what we should be retreating from, even strategically. And to what--or where—could we retreat? To our families, religious communities, civil society associations? That won’t work. They’ll hunt us down and dismantle our institutions. Beto O’Rourke, in his characteristically charmingly hapless way, let the cat out of the bag on that point in a recent Democratic presidential debate, and none of his rivals contradicted him in any serious way. They are determined that our children or at least our grandchildren will think the way they think, not the way we think; so permitting us to retreat to the functional equivalent of the monasteries where we can quietly tend the gardens of our own families, and transmit to our children our own values, is not an option for them. Again, remember that we are to be treated like the defeated Japanese and Germans after World War II.

So flight, really, is not an option; we have no choice but to fight. And it is, and will continue to be, hard. There will be casualties.  Lots of them. As I observed when I spoke in this city at the Annual Catholic Prayer Breakfast a few years ago, the cost of discipleship is a heavy cost—and it has only gotten, and will get heavier. The days of comfortable Catholicism are over. We are back in the position of our forebears in imperial Rome. If we are true to our faith—if we are true to ourselves—then we are quite literally intolerable, as far as the Mark Tushnets and Beto O’Rourkes are concerned. And they are legion. And they hold massive cultural, political, and economic power.

So the question and challenge we face is simply this, can we muster the courage to be faithful, to boldly bear witness to truths that are unpopular among those controlling the levers of cultural, political, and economic power? Are we willing, if necessary, to pay the costs—the heavy costs--of discipleship? Of course, without God’s help, nothing of this kind would be possible? Yet we have it on the authority of Christ himself that God’s grace is superabundant. No one who asks for the courage to bear faithful witness will be denied it. No one who is prepared to take up his cross and follow Jesus will find the burden too great to bear. So, shall we flee from the battle? No. Quite the opposite. Onward, Christian soldiers.

October 26, 2019 | Permalink

Wednesday, October 23, 2019

Cardinal says synod seeks to give women greater role in Church governance

Catholic bishops are not fully utilizing Church law to maximize the role of women in decision making capacities, Indian Cardinal Oswald Gracias of Mumbai said on Wednesday. Full article at Crux.

October 23, 2019 | Permalink

Friday, October 18, 2019

Book Chapter "Life Patents, Religion, and Justice: A Summary of Themes"

Yesterday I blogged about our shortly-forthcoming edited book of essays, Patents on Life: Religious, Moral, and Social Justice Aspects of Biotechnology and Intellectual Property. I've now posted on SSRN my chapter, which concludes the book with a summary of the essays and the themes. Here's a bit from the abstract:

This book gathers religious, secular moral, legal, and sociopolitical perspectives in one place. It aims to be a resource so lawyers, policy activists, and policymakers in patent debates might better understand what religious perspectives have to offer, and so religious thinkers and leaders might better understand biotech patents and thus have more to offer. The chapters include Christian, Jewish, and Muslim perspectives on bioethics and law--and both American and European perspectives on the limits of patentable material. The chapters explore various considerations: the importance of patents to innovation, the limitations on patenting of naturally occurring products and processes, the potential limits on patents stemming from distributive concerns, and the place of patents in international trade and development debates.

Three themes, summarized here, emerge from the balance of the chapters. First, patents on life call for evaluation under criteria of morality and social justice. Second, religious thought can contribute to (without dominating) such evaluations. Finally, however, for religious thought to contribute effectively, it must be more informed and sophisticated than it has been, about both patent law and biotechnology. The chapters aim to provide such knowledge.

This final chapter gives a good sense, I think, of what the rest of the book covers. 

I hope readers interested in the "Catholic legal theory" project will give the volume a look--and suggest it to your academic libraries! First, take a look at it yourself. Second, pass the word to others who work, or have interests, in any of the areas of public moral theology, human life and dignity, technology, social justice, and development and human rights ("preferential option for the poor" etc). A few reasons why this topic may be of wide interest:

       1) The vast majority of the chapters in the book are very accessible to non-scientists. It's meant to explain basic patent concepts, and genetic technologies, to religious thinkers (and explain religious ethics to patent lawyers and scientists). Patent law can get complicated, but at its base it has a quite comprehensible logic.

       2) As I've argued in a previous paper on "intellectual property (IP) and the preferential option for the poor," IP laws, including patent, are by nature a kind of qualified (tho still valuable) property right that has parallels to Catholic approaches to property. IP is designed with social and common-good purposes in mind: encouraging innovation through exclusivity, while maintaining others' access through limits on exclusivity. Catholic thought on property tends to have a similar structure.

       3) Partly because IP rights fit with the Catholic model of qualified and instrumental property rights, and partly because patents have affected poor people in developing nations, the Catholic Church has actually had quite a lot to say about them--albeit not in a systematic way. The Vatican has defended the right of indigenous people to control over and fair reward for the genetic resources, the claim of people in poverty to have access to essential medicines (including, for purposes of this book, "biologic" drugs produced from living organisms), and the claim of farmers to retain autonomy over genetically modified seeds in the face of licensing practices by companies holding patents on the seeds. This collection aims, among other things, (a) to make the Church's positions better known to policymakers in the field and (b) help Catholic thinkers integrate the important topic of IP into their understanding of Catholic social thought principles.

       4) Because of the richness of Catholic social doctrines  in this area, and because of the role of Catholic institutes in the project, we have several different Catholic contributors. Some focus very much on the development-and-poverty implications of patents on and access to biotechnologies. Others focus on the bioethical issues involved in giving humans ownership over materials or processes that are relatively close to "natural [God-created] phenomena." In any event, while the chapters contain considerable religious diversity in the chapters, they also contain a set of Catholic : essays that are rich, deep, and diverse. IP is now central to the economy and society, and not just in the biotech area. These essays will help people think through how Catholic thought applies to the "new form of ownership" that Saint John Paul II identified in Centesimus Annus (para. 32) as increasingly fundamental: "know-how, technology, and skill."

October 18, 2019 in Berg, Thomas , Books , Current Affairs , Religion | Permalink