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.

Wednesday, September 28, 2005

Horwitz on Test Oaths

Paul Horwitz, over at Prawfsblawg, has a good post up about the Religious Tests clause, and about the Becket Fund for Religious Liberty's letter expressing its opposition to "the misuse of religion some are urging on the United States Senate."  The letter argues that "a decision to disqualify a nominee based on his or her religion . . . violates Article VI [the Religious Test Clause, specifically], and thus the Senator's oath of office" and threatens to bring an ethics complaint against any Senator "who uses religion as a disqualification for federal office."  Horwitz (like me) admires the Becket Fund, but disagrees with the letter.  Check it out.


September 28, 2005 | Permalink | TrackBack (0)

Jenkins address: "Bigger and Better Than Ever"

I very much enjoyed reading Fr. Jenkins' inaugural address until I arrived at the final paragraph:

With respect and gratitude for all who embraced Notre Dame's mission in earlier times, let us rise up and embrace the mission for our time: to build a Notre Dame that is bigger and better than ever -- a great Catholic university for the 21st century, one of the pre-eminent research institutions in the world, a center for learning whose intellectual and religious traditions converge to make it a healing, unifying, enlightening force for a world deeply in need.  This is our goal.  Let no one ever again say that we dreamed too small.

I guess this is what any college president is supposed to say at the beginning of his tenure, but it still jolted me.  Boasts of becoming "bigger and better than ever" are what I expect to hear from Harvard, but not from Notre Dame.  It's a mistake, in my view, to assume that being "bigger and better than ever" will inexorably lead to a "bigger and better than ever" platform for shining Christ's light into the world.  Maybe it will, but it seems just as likely that as the platform becomes bigger, Christ's light becomes more difficult to discern.  And what exactly do our own big dreams have to do with following Christ?  If Fr. Jenkins says "let no one ever again say that we dreamed too small," I say "let no one ever again say that I placed my own dreams above God's call."  I firmly believe that God can give us a vision to pursue, but I find that usually has little connection to my own dreams, even when they are "bigger and better than ever."


September 28, 2005 in Vischer, Rob | Permalink | TrackBack (0)

Religion bad for society?

This paper, "Cross-National Correlations of Quantifiable Social Health with Popular Religiosity and Secularity in the Prosperous Democracies," published in the Journal of Religion and Society -- and discussed, somewhat gleefully [RG:  A correction - - it was not fair for me to suggest that Leiter was "gleeful[]" about the paper; he linked to another person's discussion, and that other person, I think it is reasonable to say, was happy about the results], over at Professor Leiter's blog -- explores the thesis that "popular belief in a creator is instrumental towards providing the moral, ethical and other foundations necessary for a healthy, cohesive society."  The results?

In general, higher rates of belief in and worship of a creator correlate with higher rates of homicide, juvenile and early adult mortality, STD infection rates, teen pregnancy, and abortion in the prosperous democracies . . . .  The most theistic prosperous democracy, the U.S., is exceptional, but not in the manner Franklin predicted. The United States is almost always the most dysfunctional of the developing democracies, sometimes spectacularly so, and almost always scores poorly. The view of the U.S. as a “shining city on the hill” to the rest of the world is falsified when it comes to basic measures of societal health. Youth suicide is an exception to the general trend because there is not a significant relationship between it and religious or secular factors. No democracy is known to have combined strong religiosity and popular denial of evolution with high rates of societal health. Higher rates of non-theism and acceptance of human evolution usually correlate with lower rates of dysfunction, and the least theistic nations are usually the least dysfunctional. None of the strongly secularized, pro-evolution democracies is experiencing high levels of measurable dysfunction. In some cases the highly religious U.S. is an outlier in terms of societal dysfunction from less theistic but otherwise socially comparable secular developing democracies. In other cases, the correlations are strongly graded, sometimes outstandingly so.

If the data showed that the U.S. enjoyed higher rates of societal health than the more secular, pro-evolution democracies, then the opinion that popular belief in a creator is strongly beneficial to national cultures would be supported. Although they are by no means utopias, the populations of secular democracies are clearly able to govern themselves and maintain societal cohesion. Indeed, the data examined in this study demonstrates that only the more secular, pro-evolution democracies have, for the first time in history, come closest to achieving practical “cultures of life” that feature low rates of lethal crime, juvenile-adult mortality, sex related dysfunction, and even abortion. The least theistic secular developing democracies such as Japan, France, and Scandinavia have been most successful in these regards. The non-religious, pro-evolution democracies contradict the dictum that a society cannot enjoy good conditions unless most citizens ardently believe in a moral creator. The widely held fear that a Godless citizenry must experience societal disaster is therefore refuted. Contradicting these conclusions requires demonstrating a positive link between theism and societal conditions in the first world with a similarly large body of data - a doubtful possibility in view of the observable trends.



September 28, 2005 | Permalink | TrackBack (0)

Catholic Public Officials, again

In doing some recent research on the "Papal Diplomacy and International Organizations" series that I am co-authoring, I came across an interesting statement credited to President John F. Kennedy when he participated in the Centennial Celebration at Boston College on April 20, 1963. It places his Houston/Baptist pre-election speech that has been previously addressed by other MOJ participants in context. The President was an astute politician who likely chose to address audiences on friendly terms. Having said this, his remarks made as President at Boston College stand in contrast to his remarks to the Protestant ministers as candidate for President. In commenting on the recently released Papal Encyclical Pacem in Terris, the President said at Boston College: "As a Catholic, I am proud of it, and as an American I have learned from it." In his further remarks on the encyclical's "penetrating analysis," the President continued by saying "that document surely shows that on the basis of one great faith and its tradition there can be developed counsel on public affairs that is of value to all men and women of good will." Maybe the wall of separation is porous after all...    RJA sj

September 28, 2005 in Araujo, Robert | Permalink | TrackBack (0)

A comment on the Jenkins address

I would like to accept Rick’s kind invitation to respond to Fr. Jenkins’ inaugural address at Notre Dame. At the outset, I concur with Fr. Jenkins that his responsibilities as president are “awesome.” But then again, one could say the same thing about those faced by any disciple. He points to the need to be humble, and this is an important step forward for him and those who will be monitoring his progress as President. For with humility, any person will likely seek the counsel of others, including God, in the execution of the duties that will be encountered. Humility also carries any of us to the pursuit of a higher wisdom to address responsibly the challenges of today and tomorrow. These attributes are also a part of any scholar’s pursuit of knowledge and the research undertaken in this objective. Perhaps Fr. Jenkins intended to say that all of this background is a way of using the mind to prepare the soul for the union with the communion of saints and God—the inevitable human destiny each person has but of which the individual may not be aware. Cultivating this awareness is also a part of the responsibility of the Catholic university.

Fr. Jenkins’ reference to that which is “distinctively Catholic” is an important and relevant assertion. And he prudently refers to the writings of John Paul II including his Apostolic Constitution Ex Corde Ecclesiae. He also properly notes that the pursuit of knowledge must be twinned with reflection on the ethical implications of what is right and what is wrong with that discovered in research, teaching, and discussion. This does not always happen in the work of research and teaching universities these days. I think that this is implicit in his alarm about the dangers of technical knowledge outpacing moral wisdom. Without the latter, the former can lead many down a problematic path. And this union he identifies is a part of the intellectual tradition which the Catholic university is charged to pass on.

I would like to fortify his brief discussion and warning about how the great western universities of the world were generated by the activities of the Church but today have little connection with their religious foundation. It comes as no surprise to me that several well-researched books on this very topic have emerged from the pens (and computers) of scholars at Notre Dame! The manner in which the three principles Fr. Jenkins identifies that define the Catholic university become the common charge of all who come to Notre Dame or any other educational institution that calls itself Catholic. One of the most serious contemporary challenges to this charge is found in the hiring process of faculty and administrators. If this hiring process does not adequately take account of these three principles and others related to them, no single human being, including the president of the institution, will be able to stem the tide of the secularism or the indifference to Catholic identity and soul that has claimed other institutions. If we expect truth in advertising about the products we purchase and the health care we receive, for example, we should also demand the same from those institutions which claim they are Catholic. Catholics and other people of faith have been the victims of hiring committees who did not see the institution’s Catholic identity and the principles defined by Fr. Jenkins as essential to their charge. This is not only a pity; it is a tragedy that must be confronted by Fr. Jenkins and those who share his perspective.

My final comment at this stage is to offer a brief reflection on his statement that the Catholic university’s research, indeed all its activities I would hasten to add, must not be separated from the Catholic mission. The Catholic educational enterprise must draw its strength from the mission and continue to enhance it as he correctly asserts. Perhaps one way of reminding ourselves that this is the common charge of those who are in some way members of the Catholic university is to take to heart Saint Matthew’s Gospel and the charge given by Jesus to his earliest disciples: “Go therefore and make disciples of all nations…” The ways in which the Catholic university executes this charge are diverse, but the command for us all is the same.    RJA sj

September 28, 2005 in Araujo, Robert | Permalink | TrackBack (0)

Tuesday, September 27, 2005

Thoughts on Fr. Jenkins' speech?

As I mentioned a few days ago, Fr. John Jenkins was recently inaugurated as the new President of the University of Notre Dame.  Here, again, is a link to his (very bracing, and inspiring) address.

I've received a lot of e-mails from friends, or just ND observers, who were struck by the speech, and who are suddenly quite curious and intrigued by what is, perhaps, going on at the University.  And, I'd welcome hearing from MOJ readers and bloggers what their reactions to the speech are.  As I said in my earlier post, I suspect that all MOJ readers are interested in what is happening with "the Catholic university".  (On that note, remember the upcoming "Joy in the Truth" conference, this week at Notre Dame). 

So, let's hear from you!  What did you think?


September 27, 2005 | Permalink | TrackBack (0)

Murray and same-sex marriage

Rob asks:  "What would Murray have said about today's debate over same-sex marriage?"  I should say, first, that I do not know the answer.  Still, pressing on . . .

Rob writes:  "One common argument against same-sex marriage is that it will legitimize immoral conduct and provide avenues for future generations to embrace immoral conduct more easily, relegating the true vision of marriage to being merely an available, but not uniquely authentic, path.  But didn't Murray's embrace of religious freedom do the same thing regarding religious truth?" 

I've been thinking a bit, and talking with others a bit, about this, and I don't think the religious-freedom analogy really works.  Murray's understanding of religious freedom was tied, after all, to what he regarded as truth-claims about human persons, i.e., that they have "dignity" and that coercion in religious matters is inconsistent with that dignity.  Murray's "no coercion" rule certainly does not -- in his view, anyway -- make religious truth any less "uniquely authentic", even if it does mean, in all likelihood, that not all will seek, find, or accept it.  And, I'm not sure Murray would think -- to the extent we care what he would think -- that his no-coercion / human dignity argument for religious freedom translates so smoothly to an argument for (what arguably would be a striking) redefinition of marriage, even "civil" or state-recognized marriage.

Rob continues:  "In both contexts, [i.e., religious-freedom and marriage,] the Church is free to stand for the Truth in the public square, but the public square is opened to other paths as well.  If public morality is, in Murray's words, to be "determined by moral standards commonly accepted among the people," does the basis for opposing the state's recognition of same-sex marriage evaporate once public opinion in a given state turns in favor of same-sex marriage?"  I could be wrong, but I would be surprised if Murray meant by "public morality" "those moral standards that happen, at present, to be accepted by a majority of the people," rather than [true?] morality as it relates to public, and not purely private, matters.  And, I doubt Murray would have regarded marriage as a private matter.

Now, it does seem to me that there could be strong, Murray-type arguments (as opposed, perhaps, to constitutional arguments) against criminal statutes of the kind invalidated in the Lawrence case.


September 27, 2005 | Permalink | TrackBack (0)

Religion and Division in the U.K.

Reflecting the modern multiculturalist's tendency to equate religious difference with divisiveness, church leaders in England have created a stir by suggesting that Muslim schools might be inappropriate for Christian children.  (HT: Open Book)


September 27, 2005 in Vischer, Rob | Permalink | TrackBack (0)

The Confirmation Process

Over the past several days, a number of Senators have publicly released their respective positions on Judge Roberts’ nomination to be the next Chief Justice of the United States. A number of those indicating that they will vote against the nomination have stated that while the Judge is qualified, even well qualified, they do not know enough about his views or positions on vital issues. Several of these Senators who have concluded that they will vote against the nomination, including three on the Senate Judiciary Committee, are Catholic. Since MOJ is a forum for developing Catholic legal theory, I would like to offer a brief comment on the possible contribution Catholic legal theory can make to the present debate in the Senate on Judge Roberts’ nomination.

It appears that most Senators who have spoken so far have concluded that the Judge is qualified to sit on the Supreme Court and to be the Chief Justice. However, their “concerns” (a word that has crept up in various discussions about Senators’ positions) really seem to be that they do know a good deal about the Judge and his positions, but they disagree with them. I believe that any judicial candidate, including Judge Roberts, must be cautious in giving too much detail about one’s views on matters that are likely to come before the Court in the future. Being a judicial officer requires the person holding the office to have an “open mind” so that he or she can fairly hear and understand the positions of the parties and their views of the applicable law. The judge must then consider these views objectively to search for the truth about the case. This has a parallel with the Catholic notion of the search for truth as the quest for the “transcendent and objective” and the moral order that follows. In short, this means considering the case beyond personal knowledge and prejudices. The judge has to consider what each party has presented and argued. Judge Roberts appears to have demonstrated that he will pursue this approach, and, in fact, that is what he has done as a Circuit Court of Appeals Judge.

Interestingly, much of this Catholic contribution to the judicial process can apply to the work of the Senator. For example, let’s take the case of a Senator who is known to be a strong supporter of civil rights legislation. A colleague in the Senate intends to submit a bill addressing civil rights issues. Will the first Senator automatically be a co-sponsor of the colleague’s proposal? In short, can this Senator and the Senator’s constituents immediately say they know what the Senator’s position is? Most likely not. For prudential, political, and other considerations including objectivity, the Senator would likely have to say that the bill merits serious study. The Senator would probably want to know what other colleagues think after they have studied the text. Moreover, there would inevitably be some discussion about whether friendly amendments could be made to the bill to reflect other views or would a completely different bill have to be submitted to get those views into the discussion. This, too, is an exercise in objectivity and looking beyond one’s personal knowledge and prejudices.

If it works for Senators, might it also work for judges?    RJA sj

September 27, 2005 in Araujo, Robert | Permalink | TrackBack (0)

Monday, September 26, 2005

Christian secession?

This opinion piece in the online version of the Wall Street Journal describes the plans of a group called "Christian Exodus," which seeks to move to South Carolina and "establish a theocratic government there.  Only five families have gone so far, though leaders say that their 950 members plan to move to upstate regions of South Carolina, where they would take over county and state offices and ultimately force a constitutional crisis."  The author, Philip Jenkins, writes:

However quixotic the Exodus movement sounds, it does remind us of some powerful strands within the Christian and the American traditions. Far from being a product of the contemporary "Religious Right," the idea that believers should cut all ties with an irrevocably corrupt secular world does have excellent credentials. Arguably such separatism is far closer to the spirit of ancient Christianity than are the widespread contemporary assumptions that religion consists chiefly in being good to each other and that God wants nothing more than for us to achieve individual happiness. . . .

Often, of course, such ventures ended in failure or ruin or, at worst, in authoritarianism and violence. The precedents for a contemporary exodus are anything but promising. But looking at these movements pushes us to ask: Which is the greater error, the worse misunderstanding of a religion--to believe that it teaches radical separation from a failed world or that it calls for immersion in that world and a thorough acceptance of its ways.

A more pedestrian point:  What, exactly, would be the laws of the "theocratic" state envisioned by the "Christian Exodus" movement?  How would they differ, specifically, from the laws that exist in South Carolina right now?  (I am not suggesting, by the way, that South Carolina is a "theocracy", or anything like that.  I just wonder what exactly it is that the CE folks are after).


September 26, 2005 | Permalink | TrackBack (0)