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.

Tuesday, July 29, 2008

Our Pro-Life President?

Check this out, at dotCommonweal (here).

July 29, 2008 in Perry, Michael | Permalink | TrackBack (0)

The Church and doctrinal change-reply

We have discussed this issue a bit before. One of the things that seems to characterize some discussions of this issue is a bit of proof-texting. It is easy to find an old statement on usury (or religious freedom) and compare it to a recent statement and identify what appears to be a change in Church teaching. The issues are usually more nuanced and careful studies don't jump to the conclusion that there have been changes in Church teaching. The example of usury, which was noted by Martin Marty, is typical. John Noonan wrote a lengthy tome on usury in the 1950s and he concluded (which might be a surprise to people) that the Church teaching hadn't changed. It was when the debate on contraception began in earnest in the early 1960s that John Noonan changed his position and concluded that the Church had changed its position on usury. I don't know that Noonan ever explained his change in position but it seemed to be strategic--to help support the view that it would be ok for the Church to change Her teaching on contraception.

I think the same points can be made about religious liberty. It is easy to find statements of 19th century Popes that appear to contradict Dignitatis Humanae. Yet, if one is careful to examine the problems faced by the 19th century Popes (e.g., religious indifferentism), then the teachings can be reconciled, as scholars such as Cardinal Dulles, Brian Harrison, Russ Hittinger, and Kevin Flannery have concluded. The charge of a "change" seems to be strategic--to help support the view that the Church ought to change some other contested matter.

I explored some of these points (and cite some of the relevant literature) in "A Critique of John Noonan's Approach to Development of Doctrine, 1 St. Thomas L. J. 285-306 (2003).

Richard M.

July 29, 2008 in Myers, Richard | Permalink | TrackBack (0)

Monday, July 28, 2008

Comments on Humanae Vitae

There is an interesting set of comments on Humanae Vitae over at dotCommonweal.

Check them out, here.

July 28, 2008 in Perry, Michael | Permalink | TrackBack (0)

A troubling, cautionary tale ...

... of a devoutly Christian lawyer--a graduate of  Regent Law School--who in her misguided religious/political zeal broke the law, and of an Attorney General who nurtured a departmental culture that encouraged such lawbreaking.

New York Times, July 29, 2008

Gonzales Aides Broke Laws in Hiring, Report Concludes, by Eric Lichtblau

Senior aides to former Attorney General Alberto Gonzales broke the law by using politics to guide their hiring decisions for a wide range of important department positions, slowing the hiring process at critical times and damaging the department’s credibility and independence, an internal report concluded Monday.

The report, prepared by the Justice Department’s inspector general and its internal ethics office, singles out for particular criticism Monica Goodling, a young lawyer from the Republican National Committee who rose quickly through the ranks of the department to become a top aide to Mr. Gonzales.

Ms. Goodling, who testified before Congress in May 2007 at the height of the scandal over the firings of nine United States attorneys, introduced politics into the hiring process in a systematic way that constituted illegal misconduct, the report found.

Last month, the inspector general, Glenn A. Fine, released a separate report that found a similar pattern of politicized hiring at the Justice Department in reviewing applications from young lawyers for the honors and intern programs. The new report released Monday goes much further, however, in documenting pervasive evidence of political hiring for some of the department’s most senior career, apolitical positions, including immigration judges and assistant United States attorneys.

The inspector general’s investigation found that Ms. Goodling and a handful of other senior aides to Mr. Gonzales developed a system of using in-person interviews and Internet searches to screen out candidates who might be too liberal and to identify candidates seen as pro-Republican and supportive of President Bush.

When interviewed by the inspector general, Mr. Gonzales said he was not aware that Ms. Goodling and other aides were using political criteria in their decisions for career positions. Mr. Gonzales resigned last summer in the face of mounting accusations from congressional Democrats that politics had corrupted the department.

His successor, Attorney General Michael Mukasey, said in a statement Monday after the report’s release that he was disturbed by their findings that improper political considerations were used in hiring decisions relating to some career employees. . . .

In forwarding a résumé in 2006 from a lawyer who was working for the Federalist Society, Ms. Goodling sent an e-mail message to the head of the Office of Legal Counsel, Steven Bradbury, saying: “Am attaching a résumé for a young, conservative female lawyer.”

Ms. Goodling interviewed the woman herself for possible positions and wrote in her notes such phrases as “pro-God in public life,” and “pro-marriage, anti-civil union.” She was eventually hired as a career prosecutor.

Ms. Goodling also conducted extensive searches on the Internet to glean the political or ideological leanings of candidates for career positions, the report found. She and other Justice Department supervisors would look for key phrases like “abortion,” “homosexual,” “guns,” or “Florida re-count” to get information on a candidate’s political leanings.

[Read the rest, and download the report, here.]

July 28, 2008 in Perry, Michael | Permalink | TrackBack (0)

The Church and Doctrinal Change, Revisited

Sightings  7/28/08

On Women's Ordination

-- Martin E. Marty

Robert J. Egan, S. J., of Gonzaga University, started it all (this round) with an article in the April 11 Commonweal, in which he asked whether official Roman Catholics ought to consider reconsidering the Vatican declarations against the ordination of women to the priesthood.  In best "fair and balanced" style the editors later gave space (July 18) to Sr. Sara Butler, MSBT, of St. Joseph's Seminary in Yonkers.  She draws on her book The Catholic Priesthood and Women (2007), which had helped prompt Egan's response.  And, also in the July 18 issue, Father Egan was given another chance. So today's Sightings is a response to a response to a response to a response – almost ad infinitum?

Whether Catholics should change and begin ordination of women is their business, not mine, at least not here and today, though outcomes of Catholic debates do have huge "public religion" consequences.  I can only testify to the manifest blessings so many churches, like my own (ELCA), have received during the past half-century from the ministry of women-ordained.  My business instead picks up on Egan's closing paragraph, where he argues against Sr. Butler's reversion to and repetition of the claim that Rome does not change.  He orthodoxly celebrates the constancy of teachings from Rome.  But: "New questions arise, and new horizons open, cultures themselves are transformed, and the fund of human knowledge changes."  His article has no room to provide chapter and verse when he lists understandings and teachings in which Rome "has changed dramatically, in ways that could not have been foreseen."
He offers a short list. You could look 'em up:  "on slavery, women's inferiority, the divine right of kings, the uses of torture, the status and dignity of the Jewish people, the execution of heretics, the idea of religious liberty, the moral legitimacy of democratic governments, the indispensability of Thomism, the structure of the universe itself."  In all these cases, after Catholic change has been virtually total and quickly taken for granted, one is hard put to think back to when it supported slavery, women's inferiority, torture, et cetera, or opposed the items just listed which it now affirms.
Several years ago Maureen Fiedler and Linda Rabbin, editors, corralled eighteen scholars who tracked papal statements which suggest significant revisions and reversals in "understanding and teaching," in Rome Has Spoken.  Their authors, for example, tell of "Usury: Once a Sin, Now Good Stewardship."  Evolution.  Positive views of sexual expression within marriage, changes in scriptural interpretation, ecumenism, and more.  Admittedly, the nature and extent of changes on some of these subjects are open to debate and should be debated.  But change there certainly has been.
"Religious Freedom" is the change most recognized and experienced by modern publics. Rome Has Spoken quotes a dozen papal prohibitions against religious freedom from 1184 to 1906.  Change came suddenly, beginning with Pius XII in 1946, more explicitly with John XXIII in 1963 and then, conciliarly, at the Second Vatican Council in 1965.  Just 102 years ago, Pius X was still teaching the following in a papal encyclical:  "that the state must be separated from the church is a thesis absolutely false, a most pernicious error…an obvious negation of the supernatural order."  "Rome" changed, and admitted it did so – and survived.  Globally, it flourishes now most where it had persecuted least.


Maureen Fielder and Linda Rabbin, eds.  Rome Has Spoken…: A Guide to Forgotten Papal Statements, and How They Have Changed Through the Centuries.  NY:  Crossroad Publishing, 1998.

Sr. Butler's Cardinal Cooke Lecture on the subject of women's priesthood is available at http://www.archny.org/seminary/st-josephs-seminary-dunwoodie/administration/sister-sara-butler/

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

July 28, 2008 in Perry, Michael | Permalink | TrackBack (0)

A Christian establishment (?)

In the current issue of America, I review Frank Lambert's Religion in American Politics: A Short History.  You need to be a subscriber to access the entire review, but here's an excerpt:

In the book’s introduction, Lambert explains that a primary argument of the book is “that religious coalitions seek by political means what the Constitution prohibits, namely, a national religious establishment, or, more specifically, a Christian establishment.”  He claims, in fact, that “[w]hatever the grievance, politically active religious groups are inspired by a particular vision of America as a Christian nation.”  These sweeping introductory assertions are belied by the history he so ably recounts.

For example, he explains that Christian groups pushed both sides of an intense debate over the decision to drop atomic bombs on civilian populations in Hiroshima and Nagasaki.  Just after the bombs were dropped, 85 percent of Americans approved of the decision, but over the next two years that percentage dropped to a bare majority.  The debate, in Lambert’s recounting, “triggered a broader discussion of American morals and values.”  The question is, how exactly does a religious coalition formed to challenge (or affirm) the moral propriety of dropping the atomic bomb amount to the seeking of a “religious establishment?”  And on what basis can we conclude that participants in such a coalition are motivated by their belief that America is a “Christian nation?”

Of course there have been many Christians in American history who leap into the public square in order to reclaim our nation’s purportedly Christian heritage or to more closely align state power with Christian identity.  (Roy Moore, the Alabama judge who erected a Ten Commandments monument in the state courthouse, then defied a federal court order to remove it, comes immediately to mind.)  But to suggest that politically engaged Christians are, by definition, inspired by a vision of the “Christian nation” is silly.  Politically engaged Americans of all religious and ideological stripes are inspired by the worldviews that shape their moral convictions and commitments.  As a Christian, my criticism of the decision to drop the atomic bomb is inescapably shaped by the teachings of Christ.  But I do not offer my criticism in order to bring the nation under the authority of Christ’s teaching; I offer it because I want to contribute to the common good. 

July 28, 2008 in Vischer, Rob | Permalink | TrackBack (0)

Sunday, July 27, 2008

Humanae Vitae—the “untold story”

I begin by thanking Michael P. and Rick for their respective contributions to the 40th anniversary of Pope Paul VI’s encyclical letter Humanae Vitae, which was celebrated this past Friday, the Feast of St. James the Apostle.

            While the Tablet essay brought to our attention by Michael and Rick is filled with interesting data, I hope my posting of today will respond to two items in the Tablet article’s commentary. The first is the measure of unfamiliarization the Tablet poll reports concerning the encyclical. Perhaps this posting may help some become more familiar with this important document’s substance. The second item concerns an interesting set of four points that the Tablet commentary provides. In rapid succession, the Tablet article notes that its investigation and poll reveal that “a large proportion of otherwise faithful Catholics are using a range of artificial contraception…” The phrase “otherwise faithful” is misleading because the Tablet piece then goes on to say that more than half cohabited with their prospective spouse before marriage; that there is a reluctance of “modern” Catholics to avail themselves of the sacrament of confession; and, that nearly seventy-five percent of Catholics believe that divorce is the solution to an unhappy marriage and that divorced Catholics should not be excluded from the Eucharist. It seems that the use of the phrase “otherwise faithful” needs to be reconsidered in light of these additional and problematic findings discovered and published by the Tablet. In short, the fidelity of many Catholics, according to the Tablet’s conclusion is shaky on several major grounds, not just one as the Tablet implies in its phrase “otherwise faithful.”

            I now return to the first item on which I shall focus: the lack of familiarization with the encyclical. I would like to address its contents in a brief synopsis. I begin by noting how often the Holy Father, Paul VI, mentions the word love (almost three dozen times, whereas the Tablet article mentions it only once) and his frequent use of this term in the context of the marital relationship between a husband and wife. Paul VI expressed at the outset of his encyclical his realization that the divided commission (of which a majority expressed some interest in altering the Church’s teachings on artificial contraception) presented certain views that “departed from the moral teaching on marriage proposed with constant firmness by the teaching authority of the Church.” [N.6] It would be useful to identify these moral teachings.

            Paul VI began his explication of them in his reminder that love, including conjugal love, has its “supreme origin” in God. Through spousal love, husband and wife become one heart and one soul, and this union enables them to strive for their human perfection. Paul’s words should not be unfamiliar to couples who have been married in a Catholic ceremony because they are reminded by the priest or deacon of their unity through the charge, “What God has joined, no one must divide.” This prescription is intensified by St. Matthew’s Gospel (chapter 19) that “a man shall leave his father and mother and cling to his wife, and the two shall become as one. Thus they are no longer two but one flesh. Therefore, let no man separate what God has joined.” Paul VI emphasized this by asserting that the love at the core of a marriage “is a very special form of personal friendship, in which husband and wife generously share everything, without undue reservations or selfish calculations.” [N.9] This point is deepened as the Pope further reflected that authentic marital love is the gift of one’s self to the other marriage partner: a gift that is mutually enriching.

            Paul VI continued by expressing the Church’s teachings that marital love supports responsible parenthood (and not the understanding given this vital phrase by Planned Parenthood) that expresses the unitive and procreative aspects of the sexual relationship of marriage. Marital love blossoms into another gift of self that leads to the gift of life and the posterity of the human race. That is why in the interrogation of the marriage ceremony they have been asked if they will “accept children lovingly from God, and bring them up according to the law of Christ and his Church.”

            The encyclical is a potent reminder that fidelity to what God asks of married couples cannot encompass the use of what is artificial and that would interfere with and frustrate God’s divine plan for man and woman who become one. In the aftermath of Griswold (1965) and Eisenstadt (1972) and Roe (1973) and the mentality they encouraged, Pope Paul’s encyclical offers much needed guidance to not only Catholic couples but “all people of good will” in addressing responsibly the expression of human sexuality and its fruition. [NN.13-16] Paul VI may have foreseen the expansion of Griswold by Eisenstadt when he warned that artificial birth control would tempt human weakness, especially of young people who are made all the more vulnerable by the culture of permissiveness, to violate God’s moral law and engage in “an evil thing.” [N.17] He prophetically acknowledged that the “responsible” use of artificial contraception leads to a circumstance in which the man and woman are no longer “one” but become the object of the other in self-seeking pleasure. The reverence and love due each begin to evaporate when one of the marriage partners becomes the instrument of enjoyment of the other. And with this, the love of which Paul VI spoke begins to disappear. The dignity due husband and wife, from one to the other, is forgotten.

            He concluded his encyclical by offering counsel tailored to men and women, married couples, doctors and healthcare professionals, priests, bishops, and moral theologians. But, regardless of one’s identity and position in this list, Paul VI expressed a common charge: a need to master one’s self. The physical instinct of the human person and free will is complemented by one’s reason and the ability to appreciate the role of ascetical practice. As he stated, this does not harm the love between the partners of the marriage but “confers on it a higher human value.” [N.21] He continue by stating,

Self-discipline of this kind is a shining witness to the chastity of husband and wife and, far from being a hindrance to their love of one another, transforms it by giving it a more truly human character. And if this self-discipline does demand that they persevere in their purpose and efforts, it has at the same time the salutary effect of enabling husband and wife to develop to their personalities and to be enriched with spiritual blessings. For it brings to family life abundant fruits of tranquility and peace. It helps in solving difficulties of other kinds. It fosters in husband and wife thoughtfulness and loving consideration for one another. It helps them to repel inordinate self-love, which is the opposite of charity. It arouses in them a consciousness of their responsibilities. And finally, it confers upon parents a deeper and more effective influence in the education of their children. As their children grow up, they develop a right sense of values and achieve a serene and harmonious use of their mental and physical powers. [N.21]

            Humanae Vitae is a relatively short text that merits careful study by all Catholics. It takes only a few moments to read. But its impact on one’s life can be enduring. I hope my few comments may serve as a catalyst to others to do what St. Augustine heard so long ago: “tolle legge”—take and read!

RJA sj


July 27, 2008 in Araujo, Robert | Permalink | TrackBack (0)

Humanae Vitae and the "Sensus Fidelium"

On the occasion of Rick's post, interested MOJ readers may want to read these two entries in the HarperCollins Encyclopedia of Catholicism (1995):  "sensus fidelium" (at pp. 1182-83); "reception of doctrine" (pp. 1081-82).  My hunch is that anyone familiar with the theological role of the sensus fidelium in the discernment and development of moral knowledge would be troubled, if not by the moral position decreed in Humanae Vitae, at least by the magisterium's decreeing, in HV, that that position is "the" position of the Roman Catholic Church.  It has always seemed to me that it is way over the top, even for one who accepts the position decreed in HV, to think that faithful Catholics cannot reasonably reject the position decreed in HV.  And if faithful Catholics can reasonably reject the position, was it right for Paul VI to issue HV?

July 27, 2008 | Permalink | TrackBack (0)

Humanae vitae at 40

As the piece in The Tablet, to which Michael linked the other day, suggests, it appears that most "practising Catholics" "ignore" the Church's longstanding teaching on contraception and think that it should be "revised."  (In my own experience, it is not always entirely clear that Catholics who "ignore" the teaching have ever been challenged, encouraged, and helped to embrace it, but let's put that aside for a minute.)

As Jody Bottum discusses, here, it also appears that Pope Paul VI's predictions, regarding the social and cultural effects of the widespread practice of contraception, and the views, premises, and attitudes that would accompany this practice, have proved prescient.  Todd Zywicki considers these predictions, at the libertarianish Volokh Conspiracy, here.

So . . . what?  Should it matter -- and if so, how -- that most Catholics are not willing to act in accord with the teaching of the Catholic Church on this matter?  (Most of us fail to live in accord with teachings like "love thy neighbor", after all, but I don't think revision is in the offing.)  Should it matter -- and if so, how -- that the universal given-ness of contraception in our society has, arguably, had some negative social effects?

July 27, 2008 in Garnett, Rick | Permalink | TrackBack (0)

Saturday, July 26, 2008

Who are the Real Criminals Here?

New York Times, July 27, 2008

After Iowa Raid, Immigrants Fuel Labor Inquiries, by JULIA PRESTON

POSTVILLE, Iowa — When federal immigration agents raided the kosher meatpacking plant here in May and rounded up 389 illegal immigrants, they found more than 20 under-age workers, some as young as 13.

Now those young immigrants have begun to tell investigators about their jobs. Some said they worked shifts of 12 hours or more, wielding razor-edged knives and saws to slice freshly killed beef. Some worked through the night, sometimes six nights a week.

One, a Guatemalan named Elmer L. who said he was 16 when he started working on the plant’s killing floors, said he worked 17-hour shifts, six days a week. In an affidavit, he said he was constantly tired and did not have time to do anything but work and sleep. “I was very sad,” he said, “and I felt like I was a slave.”

At first, labor officials said the raid had disrupted federal and state investigations already under way at Agriprocessors Inc., the nation’s largest Kosher plant. The raid has drawn criticism for what some see as harsh tactics against the immigrants, with little action taken against their employers.

But in the aftermath of the arrests, labor investigators have reaped a bounty of new evidence from the testimony of illegal immigrants, teenagers and adults, who were caught in the raid. In formal declarations, immigrants have described pervasive labor violations at the plant, testimony that could result in criminal charges for Agriprocessors executives, labor law experts said.

Out of work and facing deportation proceedings, many of the immigrants say they now have nothing to lose in speaking up about the conditions in the plant. They have told investigators that they were routinely put to work without safety training and were forced to work long shifts without overtime or rest time. Under-age workers said their bosses knew how young they were.

Because of the dangers of the work, it is illegal in Iowa for a company to employ anyone under 18 on the floor of a meatpacking plant.

In a statement, Agriprocessors said it did not employ workers under 18, and would fire any under-age worker found to have presented false documents to obtain work.

To investigate the child labor accusations, the federal Labor Department has joined with the Iowa Division of Labor Services in cooperation with the state attorney general’s office, officials for the three agencies said.

Sonia Parras Konrad, an immigration lawyer in private practice in Des Moines, is representing many of the young workers. She said she had so far identified 27 workers under 18 who were employed in the packing areas of the plant, most of them illegal immigrants from Guatemala, including some who were not arrested in the raid.

“Some of these boys don’t even shave,” Ms. Parras Konrad said. “They’re goofy. They’re teenagers.”

At a meeting here Saturday, three members of the House Hispanic Caucus — including its chairman, Representative Luis V. Gutierrez, Democrat of Illinois — heard seven immigrant minors describe working in the Agriprocessors plant.

Iowa labor officials said they rarely encounter child labor cases even though the state has many meatpacking plants.

“We don’t normally have many under-age folks working in our state,” said Gail Sheridan-Lucht, a lawyer for the state labor department, who said she could not comment specifically on the Agriprocessors investigation.

Other investigations are also under way. The Equal Employment Opportunity Commission is examining accusations of sexual harassment of women at the plant. Lawyers for the immigrants are preparing a suit under the federal Fair Labor Standards Act for wage and hour violations.

Federal justice and immigration officials, speaking on Thursday at a hearing in Washington of the House Judiciary immigration subcommittee, said their investigations were continuing. A federal grand jury in Cedar Rapids is hearing evidence.

While federal prosecutors are primarily focusing on immigration charges, they may also be looking into labor violations. Search warrant documents filed in court before the raid, which was May 12, cited a report by an anonymous immigrant who was sent to work in the plant by immigration authorities as an undercover informant. The immigrant saw “a rabbi who was calling employees derogatory names and throwing meat at employees.” Jewish managers oversee the slaughtering and processing of meat at Agriprocessors to ensure kosher standards.

In another episode, the informant said a floor supervisor had blindfolded an immigrant with duct tape. “The floor supervisor then took one of the meat hooks and hit the Guatemalan with it,” the informant said, adding that the blow did not cause “serious injuries.”

So far, 297 illegal immigrants from the May raid have been convicted of document fraud and other criminal charges, and most were sentenced to five months in prison, after which they will be deported.

A spokesman for Agriprocessors, Menachem Lubinsky, said the company could not comment on an active investigation.

[Read the rest, here.]

July 26, 2008 in Perry, Michael | Permalink | TrackBack (0)