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.

Thursday, May 26, 2005

Petitioner or Prophet, cont'd

I appreciate Michael's link to the Domke and Coe piece, "President Bush:  Petitioner or Prophet."  Two quick thoughts.  This sentence in the piece is unfortunate:  "[The recent Calvin College address] marked the latest attempt by the Republican Party to use talk about God for political gain."  As lawyers we might object that this "argumentative" claim "assumes facts not in evidence."  Second, Domke and Coe raise a fascinating point -- i.e., the distinction between "petitioning" and "prophetic" "God-talk" by public figures.  While we should all (as Domke and Coe counsel) be humble and not-too-quick when it comes to assuming the prophetic mantle (n.b., the Calvin protesters' statement that Domke and Coe appear to endorse seems no less sure of God's will than does President Bush), it is not obvious to me why it is a bad thing for a public figure to speak "prophetically" now and again.

More generally, though, I worry that Domke and Coe were so eager to make their polemical point -- "Bush mis-uses God-talk yet again" -- that they didn't actually read, or listen to, the Calvin speech that the President actually delivered.  The speech is about Tocqueville, community, and the common good.  It is not about God, it is not arrogant, it makes no bold prophetic claims, it is devoid of partisanship.  Instead, it talks about a freedom that is richer than the version sometimes touted by the collectivist left or the individualist right, and about an equally rich vision of citizenship, that implies obligation to one's neighbor.  Here is a link to the actual speech, which I'd strongly encourage folks to read; and here are some clips:

. . .  I congratulate the Class of 2005. Soon you will collect your degrees and say goodbyes to a school that has been your home -- and you will take your rightful place in a country that offers you the greatest freedom and opportunity on Earth.  I ask that you use what you've learned to make your own contributions to the story of American freedom.

The immigrants who founded Calvin College came to America for the freedom to worship, and they built this great school on the sturdy ground of liberty. They saw in the American "experiment" the world's best hope for freedom -- and they weren't the only ones excited by what they saw. In 1835, a young civil servant and aristocrat from France, named Alexis de Tocqueville, would publish a book about America that still resonates today.

The book is called "Democracy in America," and in it this young Frenchman said that the secret to America's success was our talent for bringing people together for the common good. De Tocqueville wrote that tyrants maintained their power by "isolating" their citizens -- and that Americans guaranteed their freedom by their remarkable ability to band together without any direction from government. The America he described offered the world something it had never seen before: a working model of a thriving democracy where opportunity was unbounded, where virtue was strong, and where citizens took responsibility for their neighbors.

Tocqueville's account is not just the observations of one man -- it is the story of our founding. It is not just a description of America at a point in time -- it is an agenda for our time. Our Founders rejected both a radical individualism that makes no room for others, and the dreary collectivism that crushes the individual. They gave us instead a society where individual freedom is anchored in communities. And in this hopeful new century, we have a great goal: to renew this spirit of community and thereby renew the character and compassion of our nation.

First, we must understand that the character of our citizens is essential to society. In a free and compassionate society, the public good depends on private character. That character is formed and shaped in institutions like family, faith, and the many civil and -- social and civic organizations, from the Boy Scouts to the local Rotary Clubs. . . .

Second, we must understand the importance of keeping power close to the people. Local people know local problems, they know the names and faces of their neighbors. The heart and soul of America is in our local communities; it is in the citizen school boards that determine how our children are educated; it's in city councils and state legislators that reflect the unique needs and priorities of the people they serve; it's in the volunteer groups that transform towns and cities into caring communities and neighborhoods. In the years to come, I hope that you'll consider joining these associations or serving in government -- because when you come together to serve a cause greater than yourself, you will energize your communities and help build a more just and compassionate America.

Finally, we must understand that it is by becoming active in our communities that we move beyond our narrow interests. In today's complex world, there are a lot of things that pull us apart. We need to support and encourage the institutions and pursuits that bring us together. .. . .

All these organizations promote the spirit of community and help us acquire the "habits of heart" that are so vital to a free society. And because one of the deepest values of our country is compassion, we must never turn away from any citizen who feels isolated from the opportunities of America. . . .

The history of forming associations dedicated to serving others is as old as America itself. From abolition societies and suffrage movements to immigrant aid groups and prison reform ministries, America's social entrepreneurs have often been far ahead of our government in identifying and meeting the needs of our fellow countrymen. Because they are closer to the people they serve, our faith-based and community organizations deliver better results than government. And they have a human touch: When a person in need knocks on the door of a faith-based or community organization, he or she is welcomed as a brother or a sister. . . .

This isn't a Democratic idea. This isn't a Republican idea. This is an American idea. . . .  It has sustained our nation's liberty for more than 200 years. The Founders knew that too much government leads to oppression, but that too little government can leave us helpless and alone. So they built a free society with many roots in community. And to keep the tree of liberty standing tall in the century before us, you must nourish those roots.

Today, the Calvin Class of 2005 looks out on an America that continues to be defined by the promise of our Declaration of Independence. We're still the nation our Founders imagined, where individual freedom and opportunity is unbounded, where community is vibrant, where compassion keeps us from resting until all our citizens take their place at the banquet of freedom and equality. And with your help, we'll all do our part to transform our great land one person and one community at a time.

Thank you for having me and may God bless you, and may God continue to bless our country.


May 26, 2005 | Permalink | TrackBack (0)

Taxes and the Archbishop

Continuing the discussion about anti-poverty programs and Catholic thought:  Last week St. Paul Archbishop Harry Flynn gave an interview to the Minneapolis Star-Tribune in which he criticized our governor, Tim Pawlenty, for proposing cuts in state health-care programs in order to avoiding raising taxes.  (Free registration required to view.)

Now conservative pundit Katherine Kersten, a Catholic and a new regular columnist for the Star-Trib, takes Abp. Flynn to task on the ground that "[c]ommon sense tells us that, beyond a certain limit, high taxes actually harm people: working families and the poor, most of all."  The familiar arguments are that (1) excessive tax rates discourage job creation and (2) welfare programs encourage dependence among the poor and discourage empowerment.  Kersten quotes my St. Thomas colleague and Institute co-director Bob Kennedy:

According to Kennedy, the late Pope John Paul II had serious reservations about the welfare state. "He believed that it wasn't fully respectful of human dignity," Kennedy explains. "In his eyes, respecting human dignity requires helping people to become economically independent."

I don't want to blog right now about the general issue of welfare programs, taxes, empowerment, and human dignity (partly because I agree with my friend Bob's quote as far as it goes, and partly because it's a complicated cluster of questions involving the kind of program and the level and kind of taxation).  For now I only want to distinguish that general issue from the more specific question of funding faith-based and other intermediate institutions in anti-poverty efforts.  Many of those programs are the exact opposite of simple handouts; they emphasize the very educational, moral, and behavioral transformations in people that commentators like Kersten presumably want to encourage.  Yet we hear, as recent posts have noted, that the "faith-based initiative" has been hampered not only by Democratic secularism and statism, but also by Republican indifference -- and we hear this from conservatives, not just from liberals.  I hope that David Brooks is right about about possible liberal/evangelical (and Catholic?!) alliances; I hope that if they form, they can overcome the "keep God out of it" cadre of Democrats and the "keep my money in my pocket" cadre of Republicans.

Tom B.

May 26, 2005 in Berg, Thomas | Permalink | TrackBack (1)

Lutherans on Gambling

In further response to Rob's question about gambling:  The most comprehensive and sophisticated recent Christian statement I know of on gambling is from the Evangelical Lutheran Church in America (ELCA), the "mainline" or more "liberal" Lutheran body.  The study is online here.  A couple of key quotes:

Christians have traditionally offered four reasons to be concerned about gambling: first, because the games focus on acquiring wealth, gambling can encourage the sins of greed and covetousness; second, the emphasis on chance can be an occasion for despair and distrust in God's promises; third, gambling can lead us to misuse stewardship over our time, talents, and resources; and fourth, gambling can place vulnerable members of our communities at risk of great harm. . . .

Insofar as gambling is entangled with greed, hopelessness, selfishness and careless stewardship, it is an activity that is incompatible with the godly life. If our gambling can avoid these vices or "desires of the flesh" (Gal. 5), however, then gambling belongs within the broad area of Christian freedom. This analysis leads us to conclude, in the words of the 1984 ALC statement on gambling, that "there are no biblical or theological grounds for any absolute prohibition of gambling." Gambling is not intrinsically wrongful. It belongs to each Christian to decide whether he or she can, in good conscience and without self-deception, participate in gambling.

The fact that gambling is not intrinsically wrongful does not, however, mean that gambling is a matter of indifference. The Christian's freedom is quite different from the freedom that the modern world proclaims. Where others might assert their liberty to act in any way they see fit, so long as it is not prohibited, the Christian's freedom is always the freedom to be a good steward of God. In addition to the stewardship of our time and resources, we are also called to be stewards -- caretakers -- of one another. Cain's question to God is met with the Christian's response: we are our brothers' and sisters' keepers.

The study is notable for its description of the current state of gambling in America, its separate focus on state-run lotteries and on operations run by Native American tribes, and for its careful theological analysis.  I recommend reading the whole thing.  It was written -- or at least an earlier version of it was written -- by friend and lawprof Bob Tuttle of George Washington U. Law School, who has a Ph.D. in religious social ethics under his belt.

Tom B.

May 26, 2005 in Berg, Thomas | Permalink | TrackBack (0)

Evangelicals, Pro-Life Progressivism and More

My menial administrative duties have kept me from responding to the many interesting posts in the last few weeks re Catholic legal education, Rick Santorum and now the notion of "liberal" evangelicism. I haven't been entirely consumed by fund-raising and brow-beating my staff, however: I managed to finish the paper I wrote for the St Tommy conference on prolife progressivism (sorry about the delay, Tom Berg!). In the sidebar under my name is the article under the title "The Coherence and Importance of Prolife Progressivism." Much of it is my usual Seamless Garment stuff with which MOJ readers are familiar. I do try to add something new, however, on the question of whether PLP or the consistent ethic of life or whatever you want to call it can be culturally and politically important after secular liberalism has morphed from its traditional preoccupation with economic and social justice (the "beloved community")to a preoccupation with sexuality and autonomy, and religion in the public square has become identified almost exclusively with the religious right and its preoccupations with abortion, sexuality and "family values". Can there be a religiously inspired mass democratic movement that bridges this gap with a capacious conception of life that recognizes both the tragedy of abortion and the tragedy of poverty? I suggest that "liberal" movements need religious inspiration (and often have had it). I suggest further that Catholic social justice types need to share in the evangelical Great Awakening of the early 21st century by joining hands with liberal evangelicals such as Jim Wallis.  So read the article... I will try to blog later or the NYT Santorum piece, which raises some ointersting related pieces.

May 26, 2005 | Permalink | TrackBack (0)

The Biography of a Bad Statistic

William & Mary law prof Eric Chason sent me this link debunking the claim (previously discussed on MoJ) that abortions have increased under George W. Bush's presidency.


May 26, 2005 in Vischer, Rob | Permalink | TrackBack (0)

More on Gambling

Thanks to the PPK Blog and to St. Thomas prof Bob Kennedy for responding to my question on gambling by directing me to the Catechism:

2413 Games of chance (card games, etc.) or wagers are not in themselves contrary to justice. They become morally unacceptable when they deprive someone of what is necessary to provide for his needs and those of others. The passion for gambling risks becoming an enslavement. Unfair wagers and cheating at games constitute grave matter, unless the damage inflicted is so slight that the one who suffers it cannot reasonably consider it significant.

This standard sheds limited light on the gambling phenomenon in modern society.  Is gambling only problematic when it becomes addictive, or when it directly undermines the financial stability of an individual or his immediate family?  For example, does the emerging centrality of Las Vegas to the American cultural experience pose any concerns, even if most of the pilgrims are firmly middle class?  I confess to enjoying myself thoroughly at poker night during law school, but I was taken aback a few months back when my fourth-grade nephew sat me down to teach me the intricacies of "Texas Hold 'Em."  It seems to me that gambling's capture of mainstream America represents a key culture war front for Catholic social thought that has been woefully undermanned, especially in comparison to the hot button sex issues.

(But note that it has not been completely unmanned, of course, as I found this interesting letter from the Massachusetts Catholic Conference opposing proposals to expand gambling there.  Noting the dangers of addictive gambling and the socioeconomic impact, the writer notes in passing the "unfortunate" reliance of many Catholic organizations on games of chance.)


May 26, 2005 in Vischer, Rob | Permalink | TrackBack (0)


In his column in today's New York Times, conservative pundit David Brooks has some interesting things to say.  MOJ readers may be interested.  To read the whole piece, click here.  An excerpt follows:

May 26, 2005

A Natural Alliance

[W]e can have a culture war in this country, or we can have a war on poverty, but we can't have both. That is to say, liberals and conservatives can go on bashing each other for being godless hedonists and primitive theocrats, or they can set those differences off to one side and work together to help the needy.

The natural alliance for antipoverty measures at home and abroad is between liberals and evangelical Christians. These are the only two groups that are really hyped up about these problems and willing to devote time and money to ameliorating them. If liberals and evangelicals don't get together on antipoverty measures, then there will be no majority for them and they won't get done.

Now, you might be thinking, fat chance.  And I say to you: All around me I see bonds being formed.

I recently went to a U2 concert in Philadelphia with a group of evangelicals who have been working with Bono to fight AIDS and poverty in Africa. A few years ago, U2 took a tour of the heartland, stopping off at places like Wheaton College and the megachurch at Willow Creek to urge evangelicals to get involved in Africa. They've responded with alacrity, and now Bono, who is a serious if nonsectarian Christian, is at the nexus of a vast alliance between socially conservative evangelicals and socially liberal N.G.O.'s.

Today I'll be at a panel discussion on a proposed antipoverty bill called the Aspire Act, which is co-sponsored in the Senate by social conservatives like Rick Santorum and social liberals like Jon Corzine.

And when I look at the evangelical community, I see a community in the midst of a transformation - branching out beyond the traditional issues of abortion and gay marriage, and getting more involved in programs to help the needy. I see Rick Warren, who through his new Peace initiative is sending thousands of people to Rwanda and other African nations to fight poverty and disease. I see Chuck Colson deeply involved in Sudan. I see Richard Cizik of the National Association of Evangelicals drawing up a service agenda that goes way beyond the normal turf of Christian conservatives.

I see evangelicals who are more and more influenced by Catholic social teaching, with its emphasis on good works. I see the historical rift healing between those who emphasized personal and social morality. Most of all, I see a new sort of evangelical leader emerging.

Millions of evangelicals are embarrassed by the people held up by the news media as their spokesmen. Millions of evangelicals feel less represented by the culture war-centered parachurch organizations, and better represented by congregational pastors, who have a broader range of interests and more passion for mobilizing volunteers to perform service. Millions of evangelicals want leaders who live the faith by serving the poor.

Serious differences over life issues are not going to go away. But more liberals and evangelicals are realizing that you don't have to convert people; sometimes you can just work with them. The world is suddenly crowded with people like Rick Warren and Bono who are trying to step out of the logic of the culture war so they can accomplish more in the poverty war.


May 26, 2005 in Perry, Michael | Permalink | TrackBack (0)


Sightings  5/26/05

Petitioner or Prophet?
-- David Domke and Kevin Coe

President Bush delivered his first 2005 commencement address on May 21 at Calvin College, a small evangelical Christian school in western Michigan.  This address marked the latest attempt by the Republican Party to use talk about God for political gain.

In the past two months alone, GOP leaders have suggested God is on their side in public discussions about the medical care of Terri Schiavo, judicial-nominee votes in the U.S. Senate, and the treatment of House Majority Leader Tom DeLay over charges of unethical conduct.  This follows an election in which the president regularly spoke of the need for government to support "faith-based" initiatives, a religiously grounded "culture of life," and traditional marriage.

For some time now there has been heated debate about whether President Bush is different from other presidents in his wielding of religious rhetoric.  He is.  What sets Bush apart is both how much he talks about God and what he says when he does so.

In his Inaugural and State of the Union addresses earlier this year, Bush referenced God eleven times.  This came on the heels of twenty-four invocations of God in his first-term Inaugural and State of the Union addresses.  No president since Franklin Roosevelt took office in 1933 has mentioned God so often in these high-state settings.

The president nearest Bush's average of 5.8 references per each of these addresses was Ronald Reagan, who averaged 5.3 references in his comparable speeches.  No one else has come close.  Jimmy Carter, widely considered to be as pious as they come among U.S. presidents, only mentioned God twice in four addresses.  Other also-rans in total God talk were wartime presidents Franklin Roosevelt and Lyndon Johnson at 1.8 and 1.5 references per address, respectively.

Bush also talks about God differently than have most other modern presidents.  Presidents since Roosevelt have commonly spoken as petitioners to God, seeking blessing, favor, and guidance.  The current president has adopted a position approaching that of a prophet, issuing declarations of divine desires for the nation and world.  Among modern presidents, only Reagan has spoken in a similar manner -- and he did so far less frequently than has Bush.  This change in rhetoric from the White House is made all the more apparent by considering how presidents have historically spoken about God and the values of freedom and liberty, two ideas central to American identity.

For example, in 1941, Roosevelt, in a famous address delineating four essential freedoms threatened by fascism, said: "This nation has placed its destiny in the hands and heads and hearts of its millions of free men and women; and its faith in freedom under the guidance of God."  Similarly, John F. Kennedy, in 1962, during the height of the Cold War, said: "[N]o nation has ever been so ready to seize the burden and the glory of freedom.  And in this high endeavor, may God watch over the United States of America."

Contrast these statements, in which presidents requested divine guidance, with Bush's claim in 2003 that "Americans are a free people, who know that freedom is the right of every person and the future of every nation.  The liberty we prize is not America's gift to the world, it is God's gift to humanity."  He has made similar statements a number of times, across differing contexts of national addresses, presidential campaign debates, and press conferences.  These are not requests for divine favor; they are declarations of divine wishes.

Such certainty about God's will is troubling when found in a president and administration not known for kindly brooking dissent.  This makes it particularly noteworthy that Bush encountered something in his visit to Calvin College that he has rarely faced as president: vocal and public criticism from other Christians, many of them evangelicals.

More than 800 faculty, alumni, students, and friends of the college signed a letter published by the Grand Rapids Press, decrying Bush administration policies.  The letter included these words: "By their deeds ye shall know them, says the Bible.  Your deeds, Mr. President -- neglecting the needy to coddle the rich, desecrating the environment, and misleading the country into war -- do not exemplify the faith we live by."  Another letter expressing similar sentiments was signed by one-third of Calvin's faculty, while dozens of graduating seniors wore stickers on their caps and gowns that read, "God is not a Democrat or a Republican."

Such courageous words prompt the hope that, in these challenging times, politicians who are quick to speak about God might also learn to listen.

David Domke is an Associate Professor in the Department of Communication at the University of Washington, and is the author of God Willing? Political Fundamentalism in the White House, the "War on Terror," and the Echoing Press.  Kevin Coe is a doctoral student in the Department of Speech Communication at the University of Illinois.


Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

May 26, 2005 in Perry, Michael | Permalink | TrackBack (0)

Herzog on the Solomon Amendment case

Over at Left2Right, Don Herzog has these thoughts on the Solomon Amendment litigation.  Here's the heart of his argument that the Amendment (which requires law schools that receive federal funding to treat military recruiters like other recruiters, notwithstanding the schools' objections to the "Don't Ask, Don't Tell" policy):

I think Congress and DoD were within their constitutional rights every step of the way — until late 2001.  (So I'm not buying the bill of goods FAIR sold the third circuit, though I grant that the issues surrounding the spending clause and the doctrine of unconstitutional conditions are tricky.)  When the feds said to the law schools, "sorry, no binders in libraries, no interviewing offices across the street, we have to get the identical treatment other employers do," they were insisting on more than their functional interests in being able to interview law students.  They were insisting that the law schools no longer symbolically affirm their nondiscrimination policies.  Put differently, the feds were saying to the law schools, "you can't say that any more."  I think that's the only plausible interpretation of the 2001 move.  But we don't have to speculate.  Again, DoD told us why they changed the policy:  anything less than identical treatment "sends the message that employment in the Armed Forces is less honorable or desirable than employment with other organizations."  But may the government tell people, under pain of coercion, "don't say what you want to say; say what we want you to say"?  That's a classic loser under first amendment law.

Herzog is right to remind us that, in the First Amendment context, "targeting" and "burdening" by governments are often treated differently.  That said, the facts in this case do not require the conclusion that, in fact, when lawmakers enacted the Amendment, "they were insisting on more than their functional interests in being able to interview law students.  They were insisting that the law schools no longer symbolically affirm their nondiscrimination policies."  This seems a real stretch to me.  The effect of the Amendment on (what the law schools characterize as) the law schools' antidiscrimination stance is minimal; no one should think that, say, Yale Law School -- even if it is required to comply with the Amendment is going to have any difficulty promulgating its message.  (Now, Herzog's point is that Congress should not have tried  to silence the law schools' anti-discrimination message; my point here is that, because it is so clear that the Amendment does not, in fact, silence that message, it is not likely that Congress enacted the Amendment in order to silence the message). 

In any event, this seems to me to be the kind of question -- i.e., "is this law about silencing the schools' antidiscrimination messages, or about ensuring equal treatment for recruiters" -- that courts are not going to find any easier to resolve than the "whose interests weigh more" questions that Herzog himself (wisely) thinks should be avoided.  In any event, read the whole thing . . .


UPDATE:  I had an e-mail conversation with Professor Herzog, and he emphasizes that his objection is not to the Solomon Amendment itself, but to the government's actions after late 2001.  It is in these later actions that Herzog sees pretextual targeting of the schools' anti-discrimination messages.

May 26, 2005 | Permalink | TrackBack (0)

Cloning research and nationalism

Eugene Volokh has some provocative thoughts about the possible role of "nationalism" in our discussion in the United States about regulating and / or funding so-called "therapeutic" cloning:

Americans like to lead the world, in science, in wealth, in influence. If people start flocking to Korea to get cured, if Koreans start getting the key patents and making billions from exploiting them (perhaps even in the U.S., but certainly in the rest of the world), and if other countries compete with Korea while the U.S. is left behind, will enough Americans really hold the line on their abstract moral principles to sustain an American funding ban? So while America's religious sensibilities may cut in favor of restrictions on therapeutic cloning (or at least restrictions on federally funding it), America's sense of its place in the world will cut against such restrictions.

I fear that Volokh is right.


May 26, 2005 | Permalink | TrackBack (0)