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, April 30, 2008

John McCain: Living His Faith, But Private About It

Recently, I shared at some length here at the Mirror of Justice (here, here, and here) my impressions after listening to the interesting observations on faith and private and public life offered by Senators Barack Obama and Hillary Clinton at the Compassion Forum held before the Pennsylvania primary. In another post on the trends in the Catholic vote during the Democratic primaries, I noted that “Senator McCain chose not to participate in the Compassion Forum at Messiah College earlier this month, saying that he takes a more private approach to his religious faith. We will have to see whether McCain then is able to convince faithful Catholics that he respects their perspective, values their communities, and understands the centrality of religious faith and observance in their lives. McCain’s ability to speak directly to working class and non-urban Catholics has not yet been tested.”

In a column in today's Wall Street Journal, “Getting to Know John McCain,” Karl Rove confirms McCain’s insistence on remaining very private about his faith, but argues that “if Mr. McCain is to win the election this fall, he has to open up.” The column relates stories (always shared by others and rarely mentioned by McCain) about how McCain’s faith shows itself in what he does say and do in private, dating back to his years as a prisoner of war . Herewith some examples:

Another story I heard over dinner with the Days involved Mr. McCain serving as one of the three chaplains for his fellow prisoners. At one point, after being shuttled among different prisons, Mr. Day had found himself as the most senior officer at the Hanoi Hilton. So he tapped Mr. McCain to help administer religious services to the other prisoners.

Today, Mr. Day, a very active 83, still vividly recalls Mr. McCain's sermons. "He remembered the Episcopal liturgy," Mr. Day says, "and sounded like a bona fide preacher." One of Mr. McCain's first sermons took as its text Luke 20:25 and Matthew 22:21, "render unto Caesar what is Caesar's and unto God what is God's." Mr. McCain said he and his fellow prisoners shouldn't ask God to free them, but to help them become the best people they could be while serving as POWs. It was Caesar who put them in prison and Caesar who would get them out. Their task was to act with honor.

Another McCain story, somewhat better known, is about the Vietnamese practice of torturing him by tying his head between his ankles with his arms behind him, and then leaving him for hours. The torture so badly busted up his shoulders that to this day Mr. McCain can't raise his arms over his head.

One night, a Vietnamese guard loosened his bonds, returning at the end of his watch to tighten them again so no one would notice. Shortly after, on Christmas Day, the same guard stood beside Mr. McCain in the prison yard and drew a cross in the sand before erasing it. Mr. McCain later said that when he returned to Vietnam for the first time after the war, the only person he really wanted to meet was that guard.

* * *

[I]n 1991 Cindy McCain was visiting Mother Teresa's orphanage in Bangladesh when a dying infant was thrust into her hands. The orphanage could not provide the medical care needed to save her life, so Mrs. McCain brought the child home to America with her. She was met at the airport by her husband, who asked what all this was about.

Mrs. McCain replied that the child desperately needed surgery and years of rehabilitation. "I hope she can stay with us," she told her husband. Mr. McCain agreed. Today that child is their teenage daughter Bridget.

I was aware of this story. What I did not know, and what I learned from Doris, is that there was a second infant Mrs. McCain brought back. She ended up being adopted by a young McCain aide and his wife.

"We were called at midnight by Cindy," Wes Gullett remembers, and "five days later we met our new daughter Nicki at the L.A. airport wearing the only clothing Cindy could find on the trip back, a 7-Up T-shirt she bought in the Bangkok airport." Today, Nicki is a high school sophomore. Mr. Gullett told me, "I never saw a hospital bill" for her care.

Query: Will circulation of such stories through the grapevine make any difference? Should Senator McCain be expected to speak more directly to religion in the public square, as did the Democratic contenders at the Compassion Forum earlier this month?

Greg Sisk

April 30, 2008 in Sisk, Greg | Permalink | TrackBack (0)

Divorce Issue re. Wheaton Professor

From Christianity Today online:

After refusing to discuss the details of his divorce, tenured professor Kent Gramm resigned from his English position at [evangelical] Wheaton College.

Wheaton’s faculty handbook states that the college will consider employee retention “when there is reasonable evidence that the circumstances that led to the final dissolution of the marriage related to desertion or adultery on the part of the other partner."

But Gramm declined to discuss details. “None of Your Business” headlined Monday’s Chicago Sun-Times front-page story.

Wheaton apparently followed the rule it had in place.  But the comments section includes interesting thoughts on what the rule should be, for example:

Christians are often accused of being inconsistent in discussing family issues--i.e., how can you be vocal on homosexuality but silent on no-fault divorce? Opposing no-fault divorce is one step toward consistency and one step away from hypocrisy. I think firing Christian professors who do not defend their life choices is one way to make that statement.


Yes, they should fire the divorcing person as long as they fire everyone else who commits a sin or makes a mistake.


April 30, 2008 in Berg, Thomas | Permalink | TrackBack (0)

Father Dulles and Church Authority: A Response to Mike Scaperlanda

Mike Scaperlanda quotes what he regards as the wise remarks of Father Avery Dulles: "All Catholics are of course obliged to accept the definitive teaching of the Church on matters of faith and morals.  Even in the sphere of nondefinitive teaching, theologians should normally trust and support the magisterium and dissent only rarely and reluctantly, for reasons that are truly serious.  Dissent, if it arises, should always be modest and restrained.  Dissent that is arrogant, strident, and bitter can have no right of existence in the Church.  Those who dissent must be careful to explain that they are proposing only their personal views, not the doctrine of the Church.  They must refrain from bringing pressure on the magisterium by recourse of popular media." Mike thinks that the remarks about theologians apply a fortiori to non-theologians.

The remarks of Father Dulles raise many questions. What are the definitive teachings of the Church? Is the view that women can not be priests, as then Cardinal Ratzinger suggested some years back, one of them? Does the Church include the faithful? Is their reception of a doctrine necessary for a teaching to be definitive? Are all non-definitive teachings worthy of the respect Father Dulles suggests? Or was Father McCormick correct in suggesting that substantially less deference be afforded to various pronouncements the Church has made regarding women and sexuality? Does the prohibition of arrogant, strident, and bitter debate preclude civil, but robust and wise-open debate? Does the attempt to discourage debate in the popular media suggest that Commonweal and the National Catholic Reporter are illegitimate media? Is Mirror of Justice part of the popular media?

 What would have happened if Catholics had never objected to the teachings of the Church? Consider the statement of Father Robert Egan, S.J., in his excellent article, “Why Not Ordain Women,” (Commonweal, April 11): “If there were reason to believe the magisterium had never made a mistake, [one of the arguments against the ordination of women would be more understandable]. Yet the magisterium justified the institution of slavery, tolerated and endorsed a harsh misogyny and the oppression of women by men, defended the use of torture, blessed the Crusades, the Inquisition, and the burning at the stake of heretics, cultivated a disdainful and punitive attitude toward the Jewish people, insisted that sexual intercourse was morally tolerable only for the sake of procreation, condemned democracy, ridiculed the idea of religious liberty, denied the legitimacy of the idea of human rights, and condemned the separation of church and state. These last six teachings were only reversed at Vatican II, which some church leaders now claim was in perfect continuity with the church history preceding it.

 “All these teachings were probably considered ‘settled doctrine’ by the authorities who promulgated and wrote about them. That should teach us something about not trying to bind the future to the current stage of our own comprehension. . . . The church risks setting a bad example [in making theology a defense of magisterial teaching], modeling a behavior which, in any other social body, would clearly be considered falsifying and corrupting.”

 I cite Father Egan not for the purpose of igniting yet another debate about the history of the Catholic Church (though some may feel it necessary to dive in to the fire again). I simply state again that most American Catholics reject many teachings promulgated by the Vatican and the American Bishops. I doubt their attitudes toward the magisterium are in harmony with those of Father Dulles, and I think that some authors on this site do not agree with Father Dulles. Mirror of Justice could be a site in which professors (theologians or not) exchange their honest views about the magisterium. It can not be that if those of us who take a negative view of parts of the magisterium and the claims made for its authority are successfully discouraged from speaking. I doubt Mike thought his endorsement of the remarks of Father Dulles would really discourage discussion. It might suggest he thinks this would be a better site if it were exclusively designed to defend and interpret the magisterium with no questioning of it by non-theologians. But it is not. Not yet anyway.  If it were, a minority of us could move on. We could all potentially live long, happy, and [with God’s grace] at least partially holy lives. And we could agree to disagree whether the site were better or worse off.

April 30, 2008 | Permalink | TrackBack (0)

Academic Freedom continued

Steve Shiffrin (here), Fr. Araujo (here), Susan Stabile (here), and others discussed academic freedom and the Catholic university in light of Pope Benedict's address to Catholic educators.  Avery Cardinal Dulles provides his usual wisdom in a May 2008 First Things article entitled "The Freedom of Theology."  Near the end of the essay, he writes:  "All Catholics are of course obliged to accept the defininitive teaching of the Church on matters of faith and morals.  Even in the sphere of nondefinitive teaching, theologians should normally trust and support the magisterium and dissent only rarely and reluctantly, for reasons that are truly serious.  Dissent, if it arises, should always be modest and restrained.  Dissent that is arrogant, strident, and bitter can have no right of existence in the Church.  Those who dissent must be careful to explain that they are proposing only their personal views, not the doctrine of the Church.  They must refrain from bringing pressure on the magisterium by recourse of popular media."

Given what we profess about the Church and given the general need for civility and love in all things, this approach seems right to me.  And, don't Cardinal Dulles' cautions about dissent apply with even greater force to us - at least those of us who are non theologians - because we are not learned in the nuances of the various debates? 

April 30, 2008 in Scaperlanda, Mike | Permalink | TrackBack (0)

Three Cheers for the Naked Public (School) Square!

Marc DeGirolami has posted his paper, The Constitutional Paradox of Religious Learning.  I recommend it to anyone interested in the role of religion in public education, though I'm hesitant to embrace his recommendations.  Here's the abstract:

The constitutional paradox of religious learning is the problem of knowing that religion - including the teaching about religion - must be separated from liberal public education, and yet that religion cannot be entirely separated if the aims of liberal public education are to be realized. It is a paradox that has gone largely unexamined by courts, constitutional scholars and other legal theorists. Though the Supreme Court has offered a few terse statements about the permissibility of teaching about religion in its Establishment Clause jurisprudence and scholars frequently urge favored policies for or against such controversial subjects as Intelligent Design or graduation prayers, insufficient attention has been paid to the nature and depth of the paradox itself. As a result, discussion about religion‘s place in public schools often exhibits a haphazard and under-theorized quality. Yet without a deeper understanding of the relationship between religious learning and liberal public education, no edifying policy solutions are likely in an area so fraught with constitutional complexity and high emotion.

This Article aims to fill that gap by giving the constitutional paradox of religious learning its due. It offers a detailed theoretical account of the relationship between religious learning and the cultivation of the civic and moral ideals of liberal democracies. It draws on that account to develop a unique model of religious learning within liberal learning that takes its cue from the historic purpose of the public school. Since even today it is widely supposed and insisted that public schools still serve a vital role in developing civic and moral ideals in young people, this Article‘s comprehensive examination of the constitutional paradox of religious learning is both timely and necessary if the seemingly intractable skirmishes over religion, education policy, and constitutional law are capable of even a modest rapprochement.

An important topic, to be sure, and one that Marc handles with a good deal of theoretical sophistication.  Nevertheless, I found myself growing less and less comfortable with where the analysis was taking me.  Let me take a stab at articulating my discomfort.

Continue reading

April 30, 2008 in Vischer, Rob | Permalink | TrackBack (0)

"Uncloudy Day"

We were created to live eternally what Willie Nelson called the "Uncloudy Day."  Happy 75th birthday Willie; it has been one hell of a ride.

April 30, 2008 in Scaperlanda, Mike | Permalink | TrackBack (0)


Yesterday, at my law school, (a) classes ended, and (b) the Dean announced a cool $15 million gift to fund the gutting and renovating of our current building (after we move into the gorgeous new one going up next door).  And, the weather was not too bad (for South Bend).  A good day.

April 30, 2008 in Garnett, Rick | Permalink | TrackBack (0)

Tuesday, April 29, 2008

Clarification re: "engagement" with China

In my recent post on H. Res. 821 and religious freedom in China (and Tibet), after saying "bravo" about the Resolution, I wrote (among other things):

Also, I don't know whether it makes sense to boycott the 2008 Olympics entirely, or if the cause of human rights in China is better served through "engagement" (or, "massive transfers of money through consumer spending") or condemnation.  At the end of the day, perhaps the best course is the former.  Still, this is a powerful image:

Regular readers of this blog know that I've been pretty tough over the years on China, its human-rights abuses, and -- in particular -- its failure to respect and protect religious freedom.  However, Susan's recent post, and Elizabeth Brown's comments, suggest that some readers might have interpreted my statement that "I don't know" if "engagement" well serves the cause of human rights in China, or my acknowledgment that "perhaps" it does, as a denial by me that (in Elizabeth's words) "[e]ngagement must mean something more than letting China get away with murder (or significant human rights violations) just because American companies are entranced with the possibility with selling to 1 billion plus Chinese".  (I said "I don't know" only because, well, I don't.  I'm not an expert in the relevant fields.  My instinct, for what it's worth, is to strongly recoil from our willingness to overlook the tyranny in China for the sake of cheap goods.)  I would have thought that my (somewhat snarky) use of the phrase "massive transfers of money through consumer spending" was enough to ward off any such interpretation but, just in case . . .   

Elizabeth also writes, "[g]lobal trade is more of a mixed blessing than most free market conservatives are willing to admit."  In this life, most blessings are "mixed blessings", so I'm certainly willing to "admit" -- and have never denied -- that global trade is one of them.

So, should the United States boycott the Olympics?  Susan?  Elizabeth?

April 29, 2008 in Garnett, Rick | Permalink | TrackBack (0)

“Civil Union Law: A Modest Proposal”?

Professor Robin West has recently published a short article in the current alumni magazine Georgetown Law which borrows from her recent book, Marriage, Sexuality, and Gender. The article entitled Civil Union Law: A Modest Proposal is available [HERE].

Her take on civil unions is very interesting to read; however, her proposal is not a modest one.

She begins her “modest proposal” with a critique of the institution of marriage and the traditional laws that regulate it by suggesting that marriage “poses a political question requiring democratic resolution.” I don’t think she specifies what the question (or problem) is that requires resolution. While her effort is cast as a noble one, it appears that the objective toward which she labors and the justification for it pose challenges not only to democratic resolution of underlying issues, as she identifies them, but to the common good of society and the posterity of its members. Her fascinating understanding of traditional marriage misunderstands that it is, by its nature, a covenant, which in vows and exchanges of consent expresses a complementary commitment of love. Her counterproposal to replace it is an appropriation of the problematic dicta of Casey that there is “a realm of personal liberty which the government may not enter… At the heart of liberty is the right to define one’s own concept of existence, of meaning of the universe, and the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Because of her subscription to this kind of exaggerated freedom, she sees 19th century marriage as “a patriarchal institution” and marriage of the mid-20th century as “a purely traditional institution, widely viewed as delineating gender roles, sexual mores, and a conception of the good life that jointly constitute the natural foundation of civil society.”

For her, marriage was transformed after 1970 and became something different in the early 21st century mind: the product of Casey’s understanding of liberty—less of an enduring institution and more of personal choice. As she asserts in her critique, “Parties [now] enter marriage when and if they want to and with partners of their own choice”, and it is a “custom design” institution of their own making. Cohabitation may or may not lead to marriage, and Professor West, unlike myself, is not troubled by either path to which cohabitation may lead. But, she should be. The reason she is not is because she suggests that persons should be able to “contractually mimic the benefits of marriage without entering the legal relationship.” [Emphasis mine] I think this contention of hers overlooks the fact that marriage is supposed to remind individuals not only of self-established rights freely chosen but also freely embraced responsibilities they owe to the other spouse, their children, and the society that does or should encourage them in their spousal, parental, and societal obligations.

Professor West intimates early in her “modest proposal” that marriage has “become a much better deal for both sexes, but most profoundly, for women.” Her rationale for this appears to be largely based on the notion that potential or existing parties to marriage now have the right to be left alone without much, if any, sense of duty, and can take the relationship to wherever they choose to go with it. As she states, the marriage partners “have the power to avoid marriage altogether, if they so desire, or to exit it, if need be.” These points apply particularly to women, who are also free to become mothers “outside of marriage” and can do so “with very few legal impediments”, such as the right to abort their children. Once again, Casey’s formula for liberty has played a prominent role in her “modest proposal.” The good that has been achieved for Professor West in the institution’s evolution is presented in her declaration that marriage “has become a more liberal institution, and women are somewhat more equal, and much freer, as a result.” Yes, indeed, members of both sexes appear to be very free of any expression of responsibility to themselves, to their spouse, to their children, or to society as one follows the explication of her “modest proposal.” But I do not view this as a good as does Professor West; rather, I see it as a tragedy or one in the making.

At this point she professes that marriage “has become a political question, and hence a matter for public deliberation.” The tribute that she has paid to marriage now begins to evaporate. I would not disagree that marriage has surely been the subject of laws made by most state, and previously colonial, legislatures. However, I think what the author has in mind is that marriage can remain a “political question” insofar as the political and legal mechanisms of American society reflect her views of marriage and what it should be and by what it should be replaced. When these mechanisms do not concur with her position, let us use the example of the legislative efforts to restrict or prohibit same-sex marriages or civil unions or to define marriage as the union of one man and one woman, I think she would not allow for this sort of public deliberation.

In support of my interpretation of her “modest proposal” I consider her statement that marriage is not only an issue of “individual choice” (such as terminating a pregnancy) but something that reflects and supports her views on what is normative and what is not. While she seems to assert the contrary in her statement, “it is the need for political judgment, not individual choice, which now presses upon us,” it is clear from the rest of her “modest proposal” that civil unions—be they heterosexual or homosexual—will become the substitute for marriage and the obligations marriage has entailed for so long. As she states,

My long-range goal…is to redirect the movement for same-sex marriage in a way that will not compromise its commitment to formal equality, but that will also address directly definitional and normative questions about the nature and point of marriage. I want to fashion a proposal for political reform of marriage that will turn the debate away from that of who may enter, and instead toward the question of the value of the house then occupied.

Her immediate goal is to place into the “public debate” the “reform” of marriage—which for her is the establishment of civil unions, as she defines them, as the new norm. While she professes that she is not in the camp that wants to eliminate marriage, her “modest proposal” will do just that because, as she states, her understanding of civil union will “over time, become the legal mechanism by which any two people—regardless of sexual orientation—who wish to commit themselves to the lifelong care of each other and their shared dependents, formalize and sanctify their intention and desire to do so.” She notes that this “modest proposal” would provide the sanction and protection of the state by material and moral support. Her justification for this state role is founded on undefined “desirable social ends” in which the state has “a not inconsiderable interest in promoting.” My skepticism of this portion of her “modest proposal” is founded on her earlier recitation of the expression of liberty she wants associated with civil unions minus the responsibilities that traditional marriage incurred. Here she asserts that civil unions would be permanent; but is this really her objective? I think she has put aside her earlier concerns about traditional marriage that focused on what might constitute needs to end the traditional marital bonds by retaining the power “to exit it [the civil union], if need be.” What is permanent in an early assertion becomes temporary in a following one. The nature of her proposal is not so modest when one considers that, if accepted, it will replace marriage with a “mimic”, to use her word, that will make its partners “fully entitled to all the privileges, rights, and benefits currently given to married couples.” As she states, “There would, ideally, be no practical or legal difference between the two legal regimes, except that civil union would be considerably more ‘open’ in terms of who might enter.”

It is vital to the survival of marriage, as American society has long embraced it, to realize that Professor West’s “modest proposal” is a wolf in sheep’s clothing: it opens the door to many combinations and permutations, such as multiple-member “civil unions”, that take little regard of anything else other than the parties’ desires. While she appears to insist that a civil union will be restricted to a partnership of two, what would prevent those persons seeking equality for, let us say, polygamous unions to join in the “public debate” so that their claims to “equality” are satisfied too? Building upon Professor West’s “modest proposal,” why should these citizens who have a role in the “public debate” have any less equal interest in Professor West’s conclusion that there “just isn’t any good reason for the state to take an interest in whether that couple’s sexual activity is contracepted or not; or whether it is coital, digital, anal, oral, or missionary; or whether it is masturbatory, coupled, or involves multiple partners; or whether it is monogamous, polygamous, polyamorous, or open; and so on.” Since the state has no legitimate interest in these matters, why should it have a legitimate interest in the number or the age of the parties to the civil unions that are at the core of her “modest proposal”?

In short, Professor West’s “modest proposal” is a recipe for whatever an association of people want the union to be because it “expand[s] choice” by intensifying “the cumulative effect of many individual choices [that are] in turn guided by evolving social and cultural norms.” She is open to her “modest proposal” defining the civil union “so that it is available not only to same-sex conjugal couples, but also as an option for straight couples, couples consisting of ambiguously sexed individuals, and nonconjugal couples of any combination of sexes and sexual orientations, as well.” And when this is accomplished, who knows where this new “norm” would go after it has been accepted as a parallel institution that would not complement but would compete with marriage?

But Professor West suggests that this is not the case when she states,

A heterosexual couple could either civilly marry, or civilly unite — the difference at the point of licensing might be (as Chai Feldblum has helpfully suggested in private conversation) nothing but the color of the form filled out. The choice between them also might, however, reflect the couple’s view regarding the nature of the state’s interest in their union.

But, I ask, what happens when the public debate, the political process, and the state conclude that there is no need for different colored forms when one will do, regardless of its color? While Professor West again suggests that civil unions in conformity with her “modest proposal” would be more durable than marriage, she offers nothing that will justify this bold assertion. Moreover, she concedes that civil unions will be no more durable than conventional marriage when she concludes that a civil union “is open to change; it is intentionally malleable.” And this would include the change and the malleability afforded by dissolution. She concludes her article by stating that a civil union should not be viewed as transitional; however, under her “modest proposal” we ought to consider marriage as the “transitional institution” since it is “historically rooted in irrational traditions, imposed for centuries on unreflective boys and powerless girls, serving rarely explicated and never well understood state needs for eugenics, population control, female subordination, and sexual discipline.” I fear that she does not see that it is her “modest proposal” which is far more transitional since there is nothing to anchor it other than human caprice.

Professor West has crafted a fascinating proposal, but it is by no means a modest one.    RJA sj

April 29, 2008 in Araujo, Robert | Permalink | TrackBack (0)

Child protection at its finest

For anyone who doubts the dangers to family autonomy posed by an overreaching (and apparently incompetent) state, consider the case of an archaeology professor who mistakenly gave his 7 year old a bottle of Mike's Hard Lemonade at a Detroit Tigers baseball game.

April 29, 2008 in Vischer, Rob | Permalink | TrackBack (0)