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, February 23, 2010

Blanshard and Vining

The only things the late Paul Blanshard and the very alive Joseph Vining have in common is that they are the subjects, respectively, of two new papers I have posted here and  here.  Needless to say, the former turns out to be a villain of sorts and the latter very much a jurisprudential hero -- but the supporting details are in the papers, naturally. Comments on either or both papers are most welcome

February 23, 2010 | Permalink | TrackBack (0)

Rep. Stupak to oppose Pres. Obama's recent health-insurance proposal

More here:

Stupak explained his decision as follows:

”I was pleased to see that President Obama’s health care proposal did not include several of the sweetheart deals provided to select states in the Senate bill. Unfortunately, the president's proposal encompasses the Senate language allowing public funding of abortion.

"The Senate language is a significant departure from current law and is unacceptable. While the president has laid out a health care proposal that brings us closer to resolving our differences, there is still work to be done before Congress can pass comprehensive health care reform.‬“

The public-funding-of-abortion issue is not, I gather, limited to the matter of whether or not people can purchase federally subsidized plans that cover abortion.  (For more on that issue, read this position paper, put out by the USCCB.)  The President's new proposal, I gather, also authorizes (a) direct funding of Community Health Centers (including ones operated by Planned Parenthood that perform abortions) and (b) direct federal funding of abortions on Indian Country.  This latter aspect of the proposal, it seems to me, is particularly regrettable, given the extent to which Native Americans in Indian Country have been so badly neglected, and in so many ways.

February 23, 2010 in Garnett, Rick | Permalink | TrackBack (0)

"Are There Harms of Home Schooling?"

Many of us have posted, over the years, on the issue of "home schooling."  (For example, here, here, and here).  In my view, Chris Tollefsen's essay at Public Discourse, "Are There Harms of Home Schooling?", is a must-read (I say this, for what it's worth, as someone who is both too lazy and too impatient to even consider home-schooling my own children.)

Here is a taste:

Children’s education is primarily about their fulfillment, but that fulfillment is and can only be rooted in an orientation towards a life of service to genuine human goods, including the goods of others and service to God. The particular form of life within which each child is called to perform these services is the child’s vocation; the task of education—its primary end—is to enable children to recognize, accept, and pursue that vocation.

February 23, 2010 in Garnett, Rick | Permalink | TrackBack (0)

Monday, February 22, 2010

Proselytism and Religious Freedom

This conference, at Georgetown's Berkley Center, should be excellent:

In the context of a globalizing world marked by the freer flow of people and ideas, proselytism has become increasingly controversial. On March 3, 2010, the Berkley Center will sponsor a day-long symposium on proselytism and religious freedom in the 21st century. Experts from a variety of scholarly and policy fields will investigate the theological, legal, and political implications of the missionary impulse.

8:30 am - 8:55 am: Light breakfast available

9:00 am: Welcome: Thomas Banchoff, Director, Berkley Center

9:05 am - 10:20 am: Proselytism as Religious Duty
Richard Land, Southern Baptist Convention
Imam Mohamed Magid, All Dulles Area Muslim Society Center
Randi Rashkover, George Mason University
Moderator: Timothy Samuel Shah, Boston University

10:20 - 10:30: Break

10:30 am - 12:00 pm: The Political Implications of Proselytism
Salam Al Marayati, Muslim Political Action Committee
Leah Daughtry , House of Lord Church, Washington, DC
Matthew Richards, Brigham Young University
Moderator: Eric Patterson, Berkley Center

12:00 pm - 12:30 pm: Buffet Lunch

12:45 pm - 1:45 pm: Keynote Debate: Proselytism Pros and Cons
Jose Casanova, Georgetown and the Berkley Center
Gerard V. Bradley, Notre Dame Law School
Moderator: Thomas Farr, Berkley Center

1:45 - 2:00: Break

2:00 pm - 3:15 pm: The Legal and Social Dimensions of Proselytism
Robert Woodberry, University of Texas
Roger Finke, Penn State
Angela Wu, The Becket Fund for Religious Liberty
Moderator: Allen Hertzke, University of Oklahoma

For some of my own thoughts on proselytism and religious freedom, please read this paper, "Changing Minds:  Proseyltism, Religious Freedom, and the First Amendment":

Proselytism is, as Paul Griffiths has observed, a topic enjoying renewed attention in recent years. What's more, the practice, aims, and effects of proselytism are increasingly framed not merely in terms of piety and zeal; they are seen as matters of geopolitical, cultural, and national-security significance as well. Indeed, it is fair to say that one of today's more pressing challenges is the conceptual and practical tangle of religious liberty, free expression, cultural integrity, and political stability. This essay is an effort to unravel that tangle by drawing on the religious-freedom-related work and teaching of the late Pope John Paul II and on a salient theme in the law interpreting the Free Speech Clause of the First Amendment.

Running through and shaping our First Amendment doctrines, precedents, and values is a solicitude for changing minds - our own, as well as others'. Put differently, the Amendment is understood as protecting and celebrating not just expression but persuasion - or, if you like, proselytism. There are, therefore, reasons grounded in our Constitution and traditions for regarding proselytism and its legal protection not as threats to the common good and the freedom of conscience, but instead as integral to the flourishing and good exercise of that freedom. This same solicitude for persuasion and freedom pervades the writing of Pope John Paul II, who regularly insisted that the Church's evangelical mission does not restrict freedom but rather promotes it. The Church proposes - thereby inviting the exercise of human freedom - she imposes nothing. The claim here, then, is that proposing, persuading, proselytizing, and evangelizing are at the heart of, and need not undermine, not only the freedoms protected by the Constitution, but also those that are inherent in our dignity as human persons.

February 22, 2010 in Garnett, Rick | Permalink | TrackBack (0)

Theological Studies, Vol. 71, No. 1, March 2010

TS is a wonderful periodical, "published quarterly for the Society of Jesus in the United States".

My issue arrived in today's mail, and three pieces caught my eye right away, one of them by MOJ's own Amy Uelmen:

Amelia J. Uelmen, "Caritas in veritate and Chiara Lubich:  Human Development from the Vantage Point of Unity," pp. 29-45.

James F. Keenan, SJ, "Contemporary [Catholic] Contributions to Sexual Ethics," 148-67.

Kenneth R. Himes, OFM, "The United States at War:  Taking Stock," pp. 190-209.

February 22, 2010 | Permalink | TrackBack (0)

Questions about the New Testament Canon

I am puzzled about the posture of Protestants (whatever their political views) and most liberal Catholics on the New Testament canon. To the chagrin of Elaine Pagels, for example, the Gospel of John is in the canon; the Gospel of Thomas is not. Who decided to include John and include Thomas? It is problematic for Protestants to say that the institutional church made this decision because Protestants do not recognize the authority of the institutional church. Nothing in the Bible says which books should be included in it and which not. Some argue that God not only inspired the authors of at least some of the books of the New Testament (citing proof texts), but also inspired the institutional church to determine which books to include and which to exclude. But, from a Protestant perspective, what justifies saying that the inspiration stopped at that point? I am genuinely curious about the positions Protestants take on this issue.

In terms of liberal Catholics, I am thinking of those Catholics who believe that the institutional church has been wrong throughout its history about many moral issues. What is the account that explains why the Holy Spirit would let the Church go wrong on so many issues? Some would distinguish questions of morals from those of faith, but Karl Rahner has argued with considerable force that the church has changed its position on many issues of faith as well. Assuming the church has been wrong on issues of faith and morals, what justifies the liberal Catholic’s belief that the canon is God’s canon? Again, I ask this in a spirit of inquiry, and I recognize that this is not a problem for most traditional Catholics (except to the extent they believe that Church history is marred by persistent error).

The New Testament is the record of what different followers of Christ speaking to different audiences in different contexts said about him.  If many modern theologians believe that these followers were not inspired by God, that need not prevent them from maintaining otherwise conventional Christian views (though it might). But those who do not believe that the New Testament is inspired by God are more likely to broaden the canon.

This is cross-posted at religiousleftlaw.com where Patrick O'Donnell has an interesting reflection in the comments section.

February 22, 2010 | Permalink | TrackBack (0)

Sunday, February 21, 2010

Memo to Elizabeth Schiltz

TO:  Elizabeth Schiltz

FROM:  Michael Perry

RE:  Followup to earlier conversation

DATE:  February 21, 1010

Britain's love of the underdog triumphed Sunday as intimate war drama ''The Hurt Locker'' beat 3D spectacular ''Avatar'' to take six prizes, including best picture, at the British Academy Film Awards.

Kathryn Bigelow won the best-director battle with ''Avatar'''s James Cameron, her ex-husband, for her intense depiction of a bomb-disposal squad in Iraq.

''It means so much that this film seems to be touching people's hearts and minds,'' Bigelow said.

Both films had eight nominations for the British awards, considered an indicator of possible success at the Academy Awards in Los Angeles next month. ''Avatar'' and ''The Hurt Locker'' each has nine Oscar nominations.

''The Hurt Locker'' also took British prizes for original screenplay cinematography, editing and sound.

''Hurt Locker'' screenwriter Mark Boal dedicated the best-film prize to the hope of peace ''and bringing the boys and girls back home.''

Bigelow also paid tribute to soldiers serving in Iraq, and said the goal of the film was ''putting a bit of a spotlight on a very, very difficult situation.''

The ''Avatar''/''Hurt Locker'' battle initially seemed like a David-and-Goliath story. Cameron's last feature, ''Titanic,'' won 11 Oscars, including picture and director. ''Avatar'' is a global phenomenon that has taken more than $2 billion at the box office.

''Hurt Locker'' has made about a hundredth that much.

''It did not seem like a slam-dunk commercial proposition,'' said Boal, who thanked Bigelow and the cast for making ''an unpopular story about an unpopular war.''

[HT:  Associated Press.  Full story here.]

February 21, 2010 | Permalink | TrackBack (0)

Saturday, February 20, 2010

Unborn children as "persons"

This looks interesting:


When the action of a state agent results in the deprivation of the federal rights of any “person” within the jurisdiction of the United States, that person may bring a civil action under 42 U.S.C. § 1983. In Roe v. Wade, the Supreme Court held that a fetus is not a constitutional “person.” As a result, an unborn child injured by a state agent may not raise a claim under § 1983. This result, however, has at times appeared unjust. The bar on fetal 1983 claims has obstructed access to state-funded prenatal care, denied fetuses the protection of the police, and insulated state agents from liability where their reckless or abusive actions have resulted in physical injuries to the unborn.

Conceding that the language of Roe presents a virtually insurmountable obstacle to fetal 1983 actions, this Comment argues that neither the facts nor the reasoning of Roe logically support a regime that refuses to compensate unborn children for injuries occasioned by state actors. This Comment proceeds to analyze how the prohibition on fetal 1983 claims generates legal inconsistencies and is unsound from a policy perspective. A principled examination of the unavailability of damages to compensate for in utero injuries reveals that the longstanding bar on fetal 1983 claims should be reconsidered.

[The article--actually, a student "Comment" by the Articles Editor of the UCLA Law Review--is available here.]

February 20, 2010 | Permalink | TrackBack (0)

Sadly, this happy story has a too-familiar ring to it ...

Patron saint of troublemakers

James Martin SJ, August 07, 2009

Mary MacKillop CentenaryThe headlines read: Pope hopes excommunicated nun might become saint.

Yes, you read that correctly.

Mother Mary MacKillop, the foundress of the Australian-based Sisters of St Joseph of the Sacred Heart, was, in 1871, officially excommunicated by her local bishop, on the grounds that 'she had incited the sisters to disobedience and defiance'.

That same church leader, Bishop Sheil, had earlier invited her to work in Adelaide, where she and her sisters would eventually set up schools, a women's shelter and an orphanage, among their many works. But MacKillop's independent spirit was a threat to Bishop Sheil, who had her booted out of the Church.

Last month, Prime Minister Kevin Rudd spoke with Pope Benedict XVI about MacKillop's possible canonisation. Just last year, the pope visited MacKillop's tomb in Sydney during his visit to Australia for World Youth Day. Prime Minister Rudd said that the visit 'left a deep impression on the Holy Father'.

In April of this year, in an extraordinary gesture, Bishop's Sheil's successor, the current archbishop of Adelaide, Philip Wilson, made a public apology to the Sisters for their foundress's excommunication. Standing before her statue, he said that he was 'profoundly ashamed of the Bishop's actions in driving the Sisters out onto the streets'. . . . 

MacKillop was beatified in 1995. From the sounds of Prime Minister's Rudd's comments, and the implied message of the pope's visit to her tomb, she will soon become a saint — perhaps the patron saint of troublemakers.

[Read the entire piece here.]

[HT:  Greg Kalscheur, SJ.]

February 20, 2010 | Permalink | TrackBack (0)

“… the crisis [that] extends far beyond Dublin to the heart of the Catholic Church …”

[After reading my post yesterday of Sr. Joan Chittister’s comments on the crisis in Irish Catholicism, MOJ friend (and former MOJ blogger) Greg Kalscheur, SJ, law prof at Boston College, sent me “A Response to the Murphy Report” by Gerard O’Hanlon, SJ, a theologian and former provincial of the Irish province.  Here are some excerpts.  The piece was posted on the Irish Jesuit website www.amdg.ie on February 9.]

This is, without doubt, a period of deep crisis in this archdiocese’ – from Statement of Archbishop Diarmuid Martin, Friday, Dec 18, 2009.

Archbishop Martin’s observation was in response to the resignation of Bishop Donal Murray in Limerick, on foot of negative findings in the Report into the Catholic Archdiocese of Dublin, commonly referred to as the Murphy Report. I want to propose in this article that the crisis extends far beyond Dublin to the heart of the Catholic Church, and that this crisis offers us an opportunity for the ‘radical change’ also referred to in the Archbishop’s statement. . . .

The report

[S]ince, as Fr Donald Cozens points out ‘the Dublin report details a pattern of church response to clergy sexual abuse that mirrors that of countless other archdioceses and dioceses throughout the Catholic world’, we need urgently to enquire into the deeper causes of the ‘secrecy and denial that have abetted and compounded unspeakable evils’ (The Tablet, Dec 5, 2009, 6-7). Cozens even dares to hope that ‘the Catholics of Ireland will show the rest of the Catholic world how to face up to one of the saddest chapters in the history of the Church – for the good of the people of God, for the good of children’ (Cozens, 7).

Deeper causes: sexuality and power

‘But tidying up cooperate governance and instituting a more transparent culture is not going to resolve the scandal of clerical sexual abuse. That will require the church to face up to a much more profound problem – the church’s own teaching on sexuality’ (Maureen Gaffney, I. Times, Dec 2, 2009).

Young people need to be presented with ‘a more persuasive sexual ethic than the no longer relevant traditional teaching, to which for the time being the church remains committed’ (Garret FitzGerald, I.Times, Dec 19th, 2009).

Fianna Fail backbencher Mary O’Rourke on the ‘sheer discourtesy of a body called the Congregation of the Doctrine of the Faith, or something with an equally convoluted title…this wonderful doctrine body, whatever it is, does not reply to letters…consider the discourtesy of it and the discourtesy of the head of the Vatican (sic), parading around Ireland in his wonderful glitzy clothes, but not replying to letters and not seeing fit to talk to his counterpart…It is just not good enough’ (I. Times, Dec 4, 2009).

No one with knowledge of Irish public life would accuse distinguished figures like Maureen Gaffney, Garret FitzGerald or Mary O’Rourke of being rabidly anti-Catholic. On the contrary, I believe most people would acknowledge both their fairness and their constructive attitude towards the Catholic Church. Taken together I believe they are pointing to a problematic nexus of issues around sexuality, power and the relationship between them, which are deeply corrosive of Catholic Church moral authority and credibility.

The roots of this crisis lie buried back in the 1960s. First, in the Second Vatican Council, there was a clear emphasis on the Church as the People of God – we are all, as the great Dominican theologian Yves Congar once put it, first and foremost brothers and sisters: it is only secondarily, and in service of mission, not in exercise of power, that we are laity, priests, religious, bishops, Pope. Baptism comes first and remains primary, and all baptized people are called to exercise that Priesthood of the Faithful which is part of our service to the wider world, a kind of sacramental sign intended to give hope to all men and women that our relationship with God is both our source, our constant nourishment and our final home. To that end, with Baptism and Confirmation, with Eucharist, we are given the presence of the Holy Spirit, those who are tasked with leadership roles in the Church will need to consult with the lay faithful in order to discern the sensus fidelium, the ‘sense of the faithful’, which is intrinsic to sound church governance and teaching. All this of course is entirely consistent with the well-known principle of subsidiarity, so prominent in Catholic Social Teaching.

Sadly, for a multitude of reasons, this dream of Vatican 11 of a more collegial church, with active lay participation, and a balancing of the power of the papacy with the influence of local churches (Episcopal conferences, informed by lay input), has for the most part not been realized. The dominant culture of our Church remains that of a dysfunctional, autocratic clericalism, as Cozens makes so clear. So many women religious, not just laity, know this only too well. We have had in Ireland some small steps forward with, for example, the development of Parish Councils, but there has been little sense of urgency about this whole movement. Perhaps this has been due in no small part to what theologian Nicholas Lash has identified as the conflicting interpretations of Vatican II, the success of the Roman Curia in resisting reform and effectively ensuring that collegiality has yielded to a more entrenched centralization.

But if there was one event which crystallized this crisis of power and linked it with the crisis of sexuality it was the promulgation of Humanae Vitae in 1968. (3) The Papal Commission leading up to this promulgation included lay men and women, married couples, medical and other experts. It found – much to its own surprise, since this was originally a commission to advise the Pope on issues of population control in response to developments in the UN and initially simply accepted without question the traditional church teaching on contraception – that it could not establish the intrinsic evil of contraception on the basis of natural law or reasoning. Four theologians (from a Commission variously estimated as comprising between 58 and 70 persons) dissented from this finding. Paul VI in his Encyclical took the side of the four dissenting voices and effectively decided the issue by papal authority and power.

However a large majority of practicing Catholics have not ‘received’ this teaching as true, they do not find it persuasive. Theologians have pointed to an overly physicalist notion of natural law underlying the teaching, as well as an overly static notion of what tradition entails, tendencies which continue to be the case with regard to the many other neuralgic areas of sexual teaching which Maureen Gaffney identifies (such as premarital sex, remarriage, homosexuality, the role of women in ministry and mandatory clerical celibacy). It is also worth noting, in particular in the context of the novel introduction of teaching on sexuality into Catholic Social Teaching in the recent Encyclical Caritas in Veritate, how absolute this teaching is in contrast to the more tentative stance on disputed economic and political matters. Is it not curious that the Church can claim such certainty on a matter as complex as human sexuality, while being more modest about truth claims in other spheres and even admitting that the natural law is not something that we know fully but rather something about which we grow in knowledge?

Continue reading

February 20, 2010 | Permalink | TrackBack (0)