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, November 30, 2010

Judge Posner on “Contraception and Catholicism”

Thanks to John Breen for his posting yesterday on Judge Posner’s web log entry on “Contraception and Catholicism.” I found many of the comments offered by third parties to the judge’s presentation illuminating, but I shall try my best to make a few relevant and different observations here.

First of all, the judge offers little evidence demonstrating that he really understands religion, in general, and Catholicism, in particular. I appreciate the fact that he often writes from a law and economics perspective, and I have read with great interest his important work on the relationship between these two disciplines. However, I think the judge is mistaken in making too much of a parallel between religious beliefs and “institutional strategies”, and between the Church and “a huge corporation.” A corporation’s investment is in the manufacturing of a product and the increase in wealth for the business. By contrast, the Church’s investment is not in “institutional strategies” of “a huge corporation” but in the salvation of souls and their union with God. He makes further references to competition by the Church and its confrontation with paganism, secularism, and other religions, but this is not what the Church is really about or what it really does. The Church is not in the competition business; it is in proclaiming the truth. Consequently, he misses the point of the Church’s true mission, i.e., the salvation of souls.

I realize that the judge is the author of a much heralded book entitled Sex and Reason. It is clear that his book offers personal perspectives on human sexuality and human sexual relations. Some of his book presentation views human sexual relationships through the lens of economic theory. While I will let others test the soundness of these theories, I think he is wrong in his concluding assertion made in his web log post: “Why sex plays such a large role in Catholic doctrine is a deep puzzle...”

Sex does play a role, and an important role at that, in the Church’s teachings, but to suggest as Judge Posner does that it plays “such a large role in Catholic doctrine” demonstrates his unfamiliarity with Catholic doctrine. For starters, we might consider looking at the role of sex in the Catechism of the Catholic Church and the Compendium of the Social Doctrine of the Church. Both volumes say a lot about sex, and while both texts’ treatments on sexual issues are important, it would be erroneous to conclude that their discussions about sex are disproportionate and at the core of every discussion. They are not. He fails to take stock of many other matter that the Catechism and the Compendium address and which do not concern sex, sexual practices, or sexual relations. To claim that sex plays “such a large role in Catholic doctrine” is, quite simply, hyperbole on his part. Once again, the advice of St. Augustine comes into the picture: tolle lege, take up and read—take up and read what the Church teaches and why she teaches.

If the judge thinks that sex plays “such a large role in Catholic doctrine” and that this “is a deep puzzle,” he might want to step back and consider our western society of today to see how sex plays a much larger role in contemporary culture and society than it does in the Church’s teachings. The Church, because of Her teaching authority that was entrusted by Christ, has the right to respond to what culture does to people and how cultural norms can endanger their salvation. So if it seems that the Church is addressing sex in a disproportional manner, Judge Posner might first pause to consider how society, in fact, views, treats, and celebrates sex perhaps much more than it should. If he thinks the Church is fixated on sex, he should really consider how sexual issues permeate and consume so much of contemporary society today through music, television, film, drama, and advertising. If he were to pursue such an investigation, he should see that the Church’s treatment of and attention to sex is proportionate but it is the culture’s treatment of it that is disproportional.

The final matter I’ll comment on here concerns his contention that,

The biggest problem that the Church faces in backing off its traditional condemnation of contraception is a potential loss of religious authority, which is no small matter in a hierarchical church. In 1930, responding to the Anglican Church’s rescission of its prohibition of contraception, Pope Pius VI  made an “infallible” declaration unequivocally reiterating the Catholic Church’s age-old prohibition of the practice, and his declaration was repeated by subsequent popes well into the 1990s. Were the Church now to repudiate that doctrine, it would undermine papal authority. Infallible papal pronouncements would be seen as tentative, revisable, like Supreme Court decisions, which have the force of precedents but can be and occasionally are overruled.

One concern with Judge Posner’s understanding of “the biggest problem that the Church faces” is the mistakes he makes about easily verifiable facts on the ecclesial issues that he addresses in this paragraph. For example, he makes reference to Pius VI who addressed contraception and related matters in 1930; but Pius VI was not pope in 1930. Pius VI was pope from 1775 to 1799. It also seems that the judge might be referring to the encyclical Casti Connubii, which was written by a much later Pope Pius, i.e., Pius XI in 1930. It is also possible that the judge may have been thinking about Paul VI’s encyclical of Humanae Vitae of 1968 if the judge were focusing primarily on the Roman numeral VI. In any case, the judge’s facts are skewed, and this does not help him succeed in proffering a convincing argument.   

The judge concludes by stating that, “The Pope [Benedict] may thus have opened Pandora’s Box.” If any box belonging to Pandora were opened, as Judge Posner states, it was not unbolted by Benedict XVI.


RJA sj


November 30, 2010 in Araujo, Robert | Permalink | TrackBack (0)

Marco Rubio and Christian Eclecticism

This piece is just a few days old but contains some interesting information about Senator-elect Rubio's religious commitments (h/t Mark Movsesian).  According to the piece, Senator Rubio is both a "practicing and devout Roman Catholic" and a committed member of Christ Fellowship, a church affiliated with the Southern Baptist Convention.  

The piece speculates about some political reasons for Senator Rubio's membership in the evangelical church, and it concludes with this: "What may be clear from this story — call it The Case of the First Catholic Protestant Senator — is that in America, religious distinctions matter less all the time."

That last nugget of liberal theology didn't seem to follow from the story.  At one point, the author includes a quote that had Rubio "come out" as an atheist, there would have been serious political trouble.  For that matter, my guess is that he would have been in hot water had he said that he was both Muslim and Catholic.  But it may well be that within Christian communities in the United States -- and perhaps, as the article intimates, particularly among Hispanic-American communities (though I am even less sure about this) -- inter-denominational comfort has increased substantially, and that something more than tolerance, something more embracing, has developed.  Compare, e.g., where the country was 50 years ago, let alone at the founding.  Perhaps a kind of Christian eclecticism is emerging? 


November 30, 2010 in DeGirolami, Marc | Permalink | Comments (5) | TrackBack (0)

"Political" as a pejorative

In the new Commonweal, I weigh in on the controversy surrounding Archbishop Nienstedt's DVDs opposing same-sex marriage, using the episode to draw some tentative lessons about what critics might mean when they accuse the bishops of being "too political."  After exploring three other possible meanings of "political" in this context, I address the partisanship charge:

“[P]olitical” as a pejorative may suggest that the bishops have become partisan—that they are not just overreaching, but doing so in a way that reflects their capture by a particular ideological camp or political party. Now, a single DVD does not necessarily constitute evidence of partisanship, and so such a criticism would need to assess the entirety of the bishops’ (or a particular bishop’s) political advocacy. The accusation of partisanship cannot justly be based on a single issue to which the church has given its voice unless that voice is accompanied by a noticeable silence on other issues encompassed by church teaching. Of course, if the bishops believe that we are at a crucial point of social change on same-sex marriage, they may consider their advocacy on this issue particularly urgent.

Yet while one policy issue might be more pressing than others in a given election cycle, keeping the entirety of church social teaching before the public is always a pressing need. The danger exists that the power of advocacy will be weakened by perceptions of partisanship—by the sense, that is, that the underlying goal is to influence a particular election in favor of a particular candidate, rather than to bear witness to the full weight of the church’s social teaching, which defies simplistic political categories. When an election rolls around, we know where labor unions will line up, and we know where the Chamber of Commerce will line up; if voters begin to tune out the bishops’ statements for the same reasons, we have a problem.

I welcome feedback, but it would be most helpful if you read the whole thing before you give me your reaction.

November 30, 2010 in Vischer, Rob | Permalink | Comments (11) | TrackBack (0)

Hilarious send-up of Berry-reading hipster agrarian Christians

Here.  (Don't worry -- It is safe for work.)  All in good fun, of course.  I mean, don't we all have tattoes of St. Athanasius?  (Or, for we religious-freedom nuts, Thomas Becket?)

November 30, 2010 | Permalink | Comments (1) | TrackBack (0)

Monday, November 29, 2010

Richard Posner on "Contraception and Catholicism"

Over at the Becker-Posner Blog, Richard Posner recently posted an entry entitled "Contraception and Catholicism" (available here).  I'll have something to say about Judge Posner's remarks in the coming days -- I'm not quite sure where to begin.  I suspect that many MOJ contributors and readers will find Posner's post to be of interest.

November 29, 2010 | Permalink | TrackBack (0)

Smith on the "Constitutional Divide"

Steve Smith has posted an as-per-usual engaging and provocative paper on SSRN, called "Constitutional Divide:  The Transformative Significance of the School Prayer decisions":

This article challenges the standard view in which Everson v. Board of Education was the foundational and most important establishment clause decision and the school prayer decisions of the early 1960s (Engel v. Vitale and Abington School District v. Schempp) were virtually automatic corollaries. In fact, the article argues, it was the school prayer decisions that were foundational, subverting Everson’s “no aid separationism,” and animating not only later establishment clause jurisprudence but much else in constitutional and public discourse besides. Indeed, it is plausible to see the influence of the school prayer decisions and their articulation of secular neutrality as a constitutionally mandated baseline in many of the social conflicts often today placed under the heading of “culture wars.”

November 29, 2010 | Permalink | Comments (0) | TrackBack (0)

China and Vatican "fight over control of the Church"

So reports CNN.  I might put the matter a bit differently, and say (for example) "China tries to take over the Church". It is not the case, it seems to me -- even though I understand that those ruling China might see it this way -- that "the Vatican" and China are in-the-same-sense "outside" the Church and fighting over control "of" it.  In any event, a troubling development.

November 29, 2010 | Permalink | TrackBack (0)

"Compromise" on abortion

We have had a number of posts, in recent weeks, regarding the relatively recent abortion-related conference at Princeton.  Some of those posts included references to Will Saletan's (of Slate) "take-aways" from the conference, which took the form of "advice" for pro-lifers and pro-choicers.  Commenting on these take-aways -- and, in particular, on Saletan's advice to pro-lifers that they join pro-choicers in reducing the number of abortions by endorsing contraception and sex education instead of regulation.  Putting aside (a) the question whether the number of abortions is all that matters and (b) how the number of abortions are, in fact, best reduced, I think Ross Douthat makes a very good point:

For Saletan’s compromise to become plausible, Roe would have to go. For any compromise that offers anything meaningful to abortion opponents to become plausible, Roe would have to go. I’ve made this point before, but it’s worth making once again: The problem with the abortion debate in America isn’t that the anti-abortion side won’t ever consider making compromises or taking half a loaf. It’s that the structure of constitutional law is tilted so egregiously toward abortion-on-demand that any plausible compromise is a non-starter. I appreciate Saletan’s willingness to contemplate the idea of some legal restrictions on abortion. In a different, better world, it would represent a real step toward meaningful political discussion. But so long as five Supreme Court justices think that there’s an absolute constitutional right to a second trimester abortion, he’s writing checks that American politics can’t cash.

UPDATE:  More from Saletan, here.

November 29, 2010 | Permalink | Comments (7) | TrackBack (0)

McCarthy's "secular winds"

In my view, Cormac McCarthy is one of the greatest living (in-English) writers, and so I was predisposed to think very highly of this thoughtful post, by Prof. Perry Dane, at ReligiousLeftLaw:

A couple of months ago, I read Cormac McCarthy's "The Road," a post-apocalyptic story that manages to celebrate the possibility of goodness and the hope of redemption even in the midst of unremitting destruction and human depravity. The religious subtext in the novel is implicit but clear. One particular passage jumped out at me, though, as it has to others:

They were crossing the broad coastal plain where the secular winds drove them in howling clouds of ash to find shelter where they could.

(P. 177) McCarthy is, of course, playing here with the multiple modern meanings of the word "secular." (He uses the word again to similar effect later in the novel: "The sweeping waste, hydroptic and coldly secular." (P. 274)) "Secular" goes back to a Latin word that meant "generation," "age," "century," or "world." Its first medieval use referred to clergy and religious institutions that were "of the world" rather than monastic. That sense of "secular" as "of the world" eventually morphed into the most common modern meanings of "secular," whose range extends awkwardly between simply "non-religious" and affirmatively "anti-religious." But there is a more technical usage, drawing on the original Latin, that is used for phenomena that are non-periodic or long-term or of indefinite duration, as in "secular inflation." The plain meaning of McCarthy's use of "secular" rests on these latter usages, as if he had said: "the constant, unremitting, winds drove them in howling clouds of ash...." Yet the word is so jarring and unexpected in this context that it must also evoke the sense of "secular" as faithless and Godless. That much is obvious. What struck me, though, was this paradox: If the "secular" realm (whether "secular priests" or "secular governments") is "of time" and "of this world," as opposed to the transcendent world-without-time, then why are "secular winds" -- in their very immanence -- unbearably changeless, even timeless? Part of the answer, I guess, is that transcendent eternity is always new, always fresh, precisely in its undifferentiated unity. And we experience that eternity in flashes, as it makes fleeting contact with our immanent reality. Religious moments are just that -- moments. Divine kenosis (self-emptying) has given us mortals a world of our own, which is important, indeed essential to human dignity. But the divine presence illuminates that world every so often. And (to inject a note only apparently at odds with the general direction of my argument here) our situatedness in the world can itself also illuminate both the demands of the world-in-time and the nature of its interaction with the divine. Thus, the holy and the profane are in constant, ideally ever-restless, dialectic. Mere, unrelieved and uncompromising, secular time, by contrast, even when it appears to be in flux (as in the hustle and bustle of the world around us), is, in a deeper sense, all of one deadly piece, not all that different from the changeless winds in McCarthy's dark fable.

This is a legal and political -- and not only a religious -- blog, so there should be (I guess) a legal and political take-away. If there is, it might go something like this, however trite: The relation of religion and the secular state, and of religion and law, must navigate between two dangers. One is that religion will be co-opted, which is to say that it will become "secularized," open to being oppressed and itself oppressive. The other danger is that religion will be entirely banished from the public realm, leaving only "howling clouds of ash."

November 29, 2010 | Permalink | Comments (5) | TrackBack (0)

Opposition to SSM as hate speech

Apple has pulled the Manhattan Declaration app from its App Store, apparently in response to customer complaints that the declaration amounts to hate speech.  Is this part of a broader trend?  See, for example, the Southern Poverty Law Center's recent report, "18 Anti-Gay Groups and Their Propaganda," in which the National Organization for Marriage is included as one of "a hard core of smaller groups, most of them religiously motivated, [which] have continued to pump out demonizing propaganda aimed at homosexuals and other sexual minorities."  To be clear, I do consider some of the rhetoric employed in opposition to SSM to amount to hate speech (under virtually any imaginable definition of "hate speech"), but I fear that we're approaching the point where opposition to SSM itself is considered hate speech, regardless of the rhetoric employed.

November 29, 2010 in Vischer, Rob | Permalink | Comments (74) | TrackBack (0)