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.

Monday, August 23, 2004

"Thank God for the Secular"

Martin Marty has a good column in the current Christian Century, "Thank God for the Secular." He carefully points out that he is not expressing gratitude for secularism, but for

a secular approach that lets the things of this age belong to this age (saeculum) and the mundane remain mundane. The Vulgate translates John 3:16: “sic enim dilexit Deus mundum,” God so loved the “mundane,” the world.

Think of the power of religion that makes its way by persuasion rather than by coercion, privilege or favor. Think of the decline of religious participation in the European nations where “establishment” and governmental privileges lasted too long and left the churches complacent. Think of philosophers like Montesquieu, who advised that the way “to attack a religion is by favor,” and that to promote it, “invitations are stronger than penalties.”

Thank God for the secular, as an adjective attached to words like “law,” “constitution,” “polity” and the like. Thank God for the religious freedoms it helps assure and the right to counter “godless orthodoxy” it guarantees. Let there be tens of thousands of crèches voluntarily placed on individual and church lawns, but none on the courthouse lawn. Let the Ten Commandments be engraved in hearts, mounted in homes and learned in synagogues and churches, but let them not be graven images in courtrooms and capitols. Let prayer and praise for a free nation sound out from 250 million hearts and throats. Oppose secularism but thank God for the secular.

The tricky part, of course, is discerning the line between "the secular" and "secularism" in the real world of public policy -- e.g., the debates over government funding (school vouchers, Charitable Choice) and any public policy shaped in large part by religious conceptions of the good (stem-cell research, the definition of marriage). On most issues worth discussing today, one American's rampaging godless secularism is another American's healthy and vital defense of the secular. Nevertheless, the ideal embodied in the distinction is worth pondering and pursuing.


August 23, 2004 in Vischer, Rob | Permalink | TrackBack (0)

"Facts" on Stem Cells

Today's Washington Post has this essay, "Facts on Stem Cells," by Ruth Faden and John Gearhart (both of John Hopkins). The essay opens with promise, noting that "translating science into political symbols and slogans comes at a price" and conceding that "there is hype on both sides" of the stem-cell-research issue. Ultimately, though, I was disappointed by the essay.

For starters, the essay presents as one of the "facts" from which the debate should begin the claim that "no non-embryonic sources of stem cells -- not stem cells from cord blood or from any 'adult' sources -- have been shown to have anything like the potential to lead us to viable treatments for such diseases as juvenile diabetes, Parkinson's and spinal cord injury that stem cells derived from very early embryos do." But this essay by Hadley Arkes, reporting on the research of his former student (and my current student) Cason Crosby, suggests that the "facts" are, at least, more complicated.

More frustrating, though, is the authors' hollow-ringing claim to respect the "values" of President Bush and of those who have doubts about the moral justifiability of destroying human embryos for research purposes. Here is how the authors put the issue:

The science is clear. The only way to ensure that we realize the promise of stem cell research as quickly as possible is to permit federal funding to be used to create new embryonic stem cell lines and to support research with new lines. President Bush's values are also clear. He believes that the destruction of embryos can never be morally justified, no matter how much human suffering might be alleviated, even if the embryos are only still a clump of cells not visible to the human eye and even if the embryos will be destroyed in any event in fertility clinics where they are no longer needed.

I assume that President Bush (and others with reservations about embryonic stem-cell research) would say that the embryos in question are not "only . . . a clump of cells[.]" That's really the whole point, isn't it? I suspect that those with reservations might state their position more like this: "Human life may not be intentionally taken, even when that intentional taking of human life holds out the prospect of alleviating suffering. What's more, given that much suffering could be alleviated through less troubling research programs, the less troubling programs ought to be preferred. Finally, given the principled and non-trivial objections of many Amerians to embryonic stem-cell research, it is appropriate for the government not to fund such research."

For my own part, I am afraid that Hadley Arkes may be right, when he observes that:

For many, it appears, the passion for sweeping away the moral reservations about stem cells is bound up with the argument over abortion. The prospects for research are evidently far less important than the possibility of proclaiming, once again, that the human embryo, or the nascent human life, has no standing, and no rights, that the rest of us need to respect.

I should emphasize that, as I see it, this issue raises difficult scientific questions, and questions of moral philosophy, that go beyond my own training and expertise. Still, I am confident that my reservations are sufficiently informed and serious that my democratic government ought to hesitate before requiring me to fund these projects, notwithstanding the enthusiasm of Drs. Faden and Gearhart.


August 23, 2004 | Permalink | TrackBack (0)

In Defense of Liberty (Law School, that is)

My earlier post on Liberty Law School has prompted Eric Kniffin to offer this defense of the school's dean and mission:

The press I've seen in the last few days about Liberty Law School makes me wince as well. Especially because I have grown to become quite excited about the school.

The founding dean of the law school is a dear friend and mentor of mine, Bruce Green. He is a gifted leader and a careful thinker, one of the most principled and thoughtful people I've had the pleasure to get to know. Bruce is not given to theatrics and although he probably wouldn't say so, I'm sure he wasn't comfortable with Falwell's proclamation.

Liberty Law School's mission is less to train an army of warriors who will, upon graduation, immediately try to mount a battle against (fill in a social issue, newly minted fundamental right of your choice here). Rather, it is to train law students in the fullness of the Anglo-American common law tradition. In our climate, that means giving students confidence that there is such a thing as objective truth, and that these truths are publicly accessible, not private religious commitments.

Bruce is a deacon in the continuing Anglican Church. He is very much an Anglo-Catholic and is not a Baptist. Bruce has and will, I believe, continue to leave his mark on the law school. I'd encourage you to try to look past Falwell and look at the law school itself, as things unfold in Lynchburg in the weeks, months, and years to come.

In the meanwhile, if you want to get a flavor for where Bruce is trying to take the law school, take a gander at his "Dean's Blog" on the school's web site.

Indeed, Dean Green's vision seems significantly more nuanced than the one offered by his boss, Rev. Falwell, who has promised that the school "will be as far to the right as Harvard is to the left." It will be interesting to see whether the school develops in keeping with the rich Augustinian tradition invoked by the dean or with the one-dimensional right-wing political agenda trumpeted by its founder.


August 23, 2004 in Vischer, Rob | Permalink | TrackBack (2)

Saturday, August 21, 2004

Steinfels, Souder, and Natural Law

Amy Welborn has linked to an interesting review, by Peter Steinfels, in today's New York Times, of the new anthology, "One Electorate Under God?" The book is a collection, edited by E.J. Dionne and Jean Bethke Elshtain, of essays on the role of religion in American politics. Of particular interest to Welborn, and also, I imagine, to MOJ readers, are the thoughts of Indiana congressman Mark Souder, responding to Gov. Mario Cuomo, on what Souder and Cuomo take to be "natural law":

Advocating, in effect, a very loose version of "natural law," a tradition historically associated with his Roman Catholicism, Mr. Cuomo spelled out two moral principles that he asserted "would occur to us if we were only 500,000 people on an island without books, without education, without rabbis or priests or history, and we had to figure out who and what we were." These two principles - respect for one another and collaborative improvement of the world - nicely captured Americans' perpetually competing concerns for individual freedom and for community, he said, and "are shared by most if not all our nation's religions." To which Mr. Souder replied that "the notion of a natural law common to all religions" was a particular worldview itself, and one at odds with his Christian faith.

"I cannot relate to the idea of a generic, natural law God,'' he said. "My God is a particularly Christian God." Moreover, Mr. Souder questioned whether all religions really had "a common denominator that is workable in the American political system."

With respect to the anthology as a whole, Steinfels concludes:

What makes this collection easy to sample but impossible to summarize is what, according to the book's editors, explodes a number of prejudices: "Religious voices are not confined to the Right - or to the Left or the Center. Worries about improper entanglement between religion and government are not confined to liberals. Moral passion rooted in faith is not limited to the ranks of religious conservatives."


August 21, 2004 | Permalink | TrackBack (0)

Friday, August 20, 2004

Why Wheat Matters

It's reassuring to see that, even in the dog days of August, readers are paying attention. My query on the Church's refusal to allow exceptions to the wheat-only communion rule brought immediate responses. Jim Zaleta finds it "entirely reasonable" that the "Church be able to specify the physical matter of the Eucharist to ensure the integrity of the sacrament," and points out that Christ is fully present in the wine, so the wheat-intolerant among the faithful are not deprived of participating in communion. On that point, Jeff Drocco says that the only really tough cases involve individuals who cannot consume wheat or alcohol. And Catherine Collingwood offers the following defense:

The Church does not have the authority to use anything other than wheat in the Eucharistic host. Our Lord had several options, but chose to use unleavened wheat bread and wine in the Last Supper. It is also noteworthy that he many times used wheat as a metaphor in parables and such -- never any other type of bread.

In the case of the girl from New Jersey, her family was offered several
options including at least one that was gluten-free (taking the Blood
only). They are insisting that none of those are acceptable. By
doctrine they are; taking the Blood only constitutes a whole Eucharist.
"Reasonable accommodation" does not mean "any accommodation" and the
Church has used wheat for thousands of years even though this girl is
hardly the first gluten-intolerant Catholic. Why should it change just
for her?

Also, there's an authority issue here. The priest who gave her the
rice-based host did so without authorization from his bishop. He
probably didn't ask because he knew the bishop would say no. That's a
clear violation in and of itself.

I have no quarrel with any of these explanations. Indeed, one reason I find Catholicism attractive is because of its insistence that, in the spiritual lives of the faithful, "stuff matters," not just one's internal disposition. It is, though, sometimes jarring to realize the degree to which it matters.


UPDATE: Moteworthy.com has some good insight on the issue. (Thanks to Jim Zaleta for pointing it out.)

August 20, 2004 in Vischer, Rob | Permalink | TrackBack (3)

"Democrats Can 'Do Better' on Abortion"

Here is a thoughtful and heartfelt op-ed by Paul Contino, which echoes what some of my MOJ colleagues have been saying in recent months: "Sen. John F. Kerry's acceptance speech at the Democratic National Convention," he writes, "reminded me of why I am a Democrat at heart. In my lifetime, the Democratic Party has stood consistently on the side of the poor, the weak, the vulnerable. But I have not cast my vote for a Democratic presidential candidate in 12 years because the Democrats have refused to extend their protection to the weakest and most vulnerable - unborn children."

He then calls for Senator Kerry to "challenge those who are considering abortion to 'do better,' and [to] challenge the United States as a nation to 'do better' by them."


August 20, 2004 | Permalink | TrackBack (0)

Thursday, August 19, 2004

Why does wheat matter?

CNN reports on the plight of a wheat-intolerant New Jersey girl whose first communion was declared invalid by the Church because the wafer was wheat-free. Obviously, this sort of incident is deemed newsworthy because of the Church's seeming defiance of common sense and compassion in refusing to allow an exception to an arcane rule. These and similar news reports share an unspoken, but unmistakable undercurrent, along the lines of, "How can an organization beset by problems as severe as the priest sex abuse scandal fritter away its remaining goodwill by alienating the faithful with such narrow-mindedness?" As someone who did not grow up Catholic, I admit that a good answer eludes me, and I'm hoping a co-blogger or reader might offer some insight. Why will the Church not allow the faithful to participate in communion using a non-wheat wafer when wheat would cause them serious medical harm?


August 19, 2004 in Vischer, Rob | Permalink | TrackBack (0)

Vischer blurbed in Legal Affairs

The latest issue of the always enjoyable Legal Affairs magazine features, among other things, a short review of, and comment on, our colleague Rob Vischer's paper, "Heretics in the Temple of the Law." (Unfortunately, a link to the blurb is not yet available. So, read the magazine!).

After summarizing Rob's paper, the reviewer writes: "It's a cheery message, but it is made less convincing by Vischer's failure to answer the big question facing religious lawyers: How can they reconcile their religious doctrine with the doctrine of the separation of church and state?"

With all due respect, I'm not sure Rob's "failure" to grasp (what strikes me as) this awkward question undermines his paper at all; in any event, he does engage, and takes seriously, the problem of religious lawyering in conditions of pluralism. Read Rob's paper, and see what you think.


August 19, 2004 | Permalink | TrackBack (0)

Wednesday, August 18, 2004

Jerry Falwell's curious jurisprudence

Jerry Falwell's Liberty University School of Law opens its doors this month. Given my general inclination toward the "marketplace of ideas" approach to life in a pluralist society, I'm all in favor of bringing fresh voices into the legal academy, even Jerry Falwell's. I do wonder why exactly he feels led to open a law school given the school's stated philosophy that "law should not be wielded as an instrument of political, social, or personal change, but . . . should serve the common good of mankind." It seems far-fetched to presume that the common good can be served without bringing about political, social, or personal change. And if there's no instrumental function of law other than maintaining the status quo, what exactly does Falwell envision his graduates accomplishing? His Moral Majority certainly seems to have had a broadly instrumental view of law, and I can't see how lawyers who are serious about cultural engagement can segregate the law from its political, social, and personal implications, whatever they may be.


August 18, 2004 in Vischer, Rob | Permalink | TrackBack (0)

What is the Vatican Saying About Women?

Notre Dame law prof Cathleen Kaveny has written a good piece in the Washington Post dissecting the Vatican's recent statement on women.


August 18, 2004 in Vischer, Rob | Permalink | TrackBack (0)