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.

Saturday, December 31, 2011

A new book on Fr. Coyle's murder, the KKK, Justice Black, etc.

The Faculty Lounge has a nice mention of a new book, which looks very interesting, called Rising Road:  A True Story of Love, Race, and Religion in America, by Sharon Davies (Ohio State):

It was among the most notorious criminal cases of its day. On August 11, 1921, in Birmingham, Alabama, a Methodist minister named Edwin Stephenson shot and killed a Catholic priest, James Coyle, in broad daylight and in front of numerous witnesses. The killer's motive? The priest had married Stephenson's eighteen-year-old daughter Ruth to Pedro Gussman, a Puerto Rican migrant and practicing Catholic.

Sharon Davies's Rising Road resurrects the murder of Father Coyle and the trial of his killer. As Davies reveals with novelistic richness, Stephenson's crime laid bare the most potent bigotries of the age: a hatred not only of blacks, but of Catholics and "foreigners" as well. In one of the case's most unexpected turns, the minister hired future U.S. Supreme Court Justice Hugo Black to lead his defense. Though regarded later in life as a civil rights champion, in 1921 Black was just months away from donning the robes of the Ku Klux Klan, the secret order that financed Stephenson's defense. Entering a plea of temporary insanity, Black defended the minister on claims that the Catholics had robbed Ruth away from her true Protestant faith, and that her Puerto Rican husband was actually black.

Placing the story in social and historical context, Davies brings this heinous crime and its aftermath back to life, in a brilliant and engrossing examination of the wages of prejudice and a trial that shook the nation at the height of Jim Crow . . .

December 31, 2011 in Garnett, Rick | Permalink | Comments (0) | TrackBack (0)

"Disestablishing our secular schools"

I've long been a big fan of Charles Glenn.  I think he's an outstanding scholar of public and private education.  His "The Myth of the Common School" is a must-read.  Here, in First Things, he makes the case for "disestablishing our secular schools."  A taste:

. . .  We have reason to hope that America may achieve a degree of pluralism in its schools, but important changes are needed. American public education should be disestablished and demythologized, liberated to provide a true education and not simply instruction, to be as concerned about the character of its students as it is about their academic accomplishments. Government should play a significant role, setting standards for essential outcomes on which there is a societal consensus and ensuring that family circumstances never prevent a child from receiving an adequate education, but public education should be no more synonymous with government-operated schools than public health is with government-operated hospitals. Parents should be free to choose the school their children attend without financial penalty.

This is only possible if we give up the fruitless effort to make public education “neutral,” as though anything so intimately associated with the shaping of human beings could ever avoid choices among alternative views of human flourishing. The sort of lowest common denominator schooling into which public schools have been forced, the “defensive teaching” in which their teachers engage to avoid controversy, can never provide a rich educational environment. Indeed, the false belief in neutrality has fostered an idea of teachers as a kind of secular clergy . . . .

December 31, 2011 in Garnett, Rick | Permalink | Comments (2) | TrackBack (0)

The United States is the most charitable nation in the world

Something that, it seems to me, those of us who develop and offer Catholic-grounded critiques of American consumerism, individualism, exceptionalism, etc., etc., should at least keep in mind.  I can't help noting that some of the "Catholic" countries whose social practices and economic policies are often held up as models for the United States (France, in particular) do pretty badly.  I note also that the top 7 consist, basically (with one exception), of the "English-speaking peoples" (U.S., Great Britain, Ireland, Canada, Australia, and New Zealand).

December 31, 2011 in Garnett, Rick | Permalink | Comments (3) | TrackBack (0)

Fr. Robert Barron's "Catholicism"

In the "Great Minds Think Alike . . . and Ours, Too" category:  I gave to my parents, and they gave to me, Fr. Robert Barron's new "Catholicism" series of DVDs.  (Fr. Barron is the very gifted priest behind "Word on Fire."  Check it out.)  I love them.  They are lively, and are set in evocative, beautiful places (Galilee, Chartres, etc.)  They are not just catechesis -- they are about the whole Christian message / claim / vision.  Great stuff. 

December 31, 2011 in Garnett, Rick | Permalink | Comments (0) | TrackBack (0)

Thursday, December 29, 2011

On marriage, religious liberty, and the "grand bargain"

It was only yesterday, was it not, that proponents of sexual liberalism were telling us that the redefinition of marriage to include same-sex partnerships would have no impact at all on the lives of those persons and religious and other institutions that hold to the traditional conception of marriage as a conjugal union?  Such persons and institutions would simply be unaffected by the change.  So why should it matter to them that the law treats Bill and Harold, or Sally and Sheila, as married?  Those making this argument were also assuring us that the redefinition of marriage would have no impact on the public understanding of marriage as a monogamous and sexually exclusive partnership.  No one, they insisted, wanted to alter those traditional marital norms.  On the contrary, the redefinition of marriage was (according to Andrew Sullivan and others) going to promote these norms more broadly.

When some of us warned that all of this was nonsense, and pointed out the myriad ways that Catholics, Evangelicals, Mormons, Eastern Orthodox Christians, Orthodox Jews, Muslims, and others would be affected, and their opportunities and liberties would be restricted, advocates of the redefinition of marriage accused us of engaging in "scare tactics."  No one, they said, was proposing the legal recogition of multi-partner relationships or the normalization of "open marriages."  No one, they insisted, would demand that Catholic or other foster care and adoption services agencies be required to place children in same-sex headed households.  No one, they said, would require religious institutions in their schools and social services agencies to treat same-sex partners as spouses.  No one, they said, would impose penalties or disabilities on dissenting institutions in licensing, accreditation, and the like.  No one would be fired from his or her job (or suffer employment discrimination) for voicing support for conjugal marriage or criticising same-sex sexual conduct and relationships.

That was then; this is now.  i must say, though, that I still can't fathom why anybody believed any of it --- even then.  The whole argument was and is that belief in the historic conjugal conception of marriage as the union of husband and wife is plain old "bigotry."  There is no rational basis for it.  No reasonable person of goodwill could disagree with the liberal position on sex and marriage, anymore than a reasonable person of goodwill could embrace racism.

The dispute about sex and marriage is not, according to those leading the charge for redefining marriage, a reasonable disagreement among reasonable people of goodwill.  It is a battle between the forces of reason, enlightenment, and equality, and those of ignorance, bigotry, and discrimination.  Their opponents are to be treated just as racists are treated---since they are the equivalent of racists.  Of course, we don't put racists in jail for expressing their opinions---we respect the First Amendment; but we don't hesitate to stigmatize them and impose various forms of social and even civil disablity upon them and their institutions.  (Just ask Bob Jones University.)   

The fundamental error made by some, I believe, was to imagine that a grand bargain could be struck:  "We will accept the legal redefinition of marriage; you will respect our right to act on our consciences without penalty, discrimination, or civil disabilities of any type.  Same-sex partners will get marriage licenses, but no one will be forced for any reason to recognize those marriages or suffer discrimination or disabilities for declining to recognize them."  There was never any hope of such a bargain being accepted.  Perhaps parts of such a bargain would be accepted by liberal forces temporarily for strategic or tactical reasons, as part of the political project of getting marriage redefined; but guarantees of religious liberty and non-discrimination for people who cannot in conscience accept same-sex marriage could then be eroded and eventually removed.  After all "full equality" requires that no quarter be given to the "bigots" who want to engage in "discrimination" (people with a "separate but equal" mindset) in the name of their retrograde religious beliefs.  "Dignitarian" harm must be opposed as resolutely as more palpable forms of harm.

I completely agree with Rob Vischer: "The tension between religious liberty and gay rights is a thorny problem that will continue to crop up in our policy debates for the foreseeable future.  Dismissing religious liberty concerns as the progeny of a "separate but equal" mindset does not bode well for the future course of those debates."  But there is, in my opinion, no chance---no chance---of persuading those seeking to carry forward the cause of sexual liberationism (and, if anything has become plain, it is that this is the larger cause of which the redefinition of marriage is an integral component) that they should respect, or permit the law to respect, the conscience rights of those with whom they disagree.  Look at it from their point of view:  Why should we permit "full equality" to be trumped by bigotry?  Bigotry, religiously based or not, must be smashed and eradicated.  The law should certainly not give it recognition or lend it any standing or dignity.

The lesson, it seems to me, for those of us who believe that the conjugal conception of marriage is true and good, and who wish to protect the rights of our faithful and of our institutions to honor that belief in carrying out their vocations and missions, is that there is no alternative to winning the battle in the public square over the legal definition of marriage.  The "grand bargain" is an illusion we should dismiss from our minds.

Of course, with sexual liberalism now so powerfully entrenched in the established institutions of the elite sector of our culture, there are those who view the defense of marriage as a lost cause.  I think that is another mistake---one that sexual liberals have every reason to encourage their opponents to make (and one that they have ample resources to promote).  We've all heard the argument (or taunt):  "The acceptance of same-sex marriage on a national scale is inevitable.  You had better get on the right side of history, lest you be remembered in the company of Orville Faubus."  This is what we were told about a "woman's right to abortion" in the mid-70s. But it didn't turn out that way.  Does that mean that the reverse is true and that the conjugal conception of marriage will ultimately prevail in law and culture? No. There is nothing inevitable in this domain. As Roberto Unger used to preach to us in courses I took with him at Harvard, the future will be determined by human deliberation, judgment, and choice, not by laws of history analogous or akin to the laws of physics.  As the Marxists learned the hard way, the reality of human freedom is the permanent foiler of "inevitability" theses.

December 29, 2011 | Permalink | TrackBack (0)

Distributism, Slow Food, and the New Urbanism

Earlier in the month Rick Garnett and Patrick Brennan commented on "distributism."  Rick wrote:

I'm really torn -- or maybe just mixed up -- about "distributism," in many of the same ways I'm torn (or mixed up) about "new urbanism" and the "slow food" movement.  I am attracted to the aesthetics, and even to the underlying anthropology, but put off by the lack of interest these ideas' advocates often seem to display with respect to details about transitions, legal structures, practicalities, coercion, and costs.  I love Chesterton and Berry and all that but, dang it, markets and incentives and trade-offs are (this side of Heaven) permanent realities. 

If we take a state-centric approach to distributism, slow food, and the new urbanism, all of Rick's concerns require answers.  But, Chesterton takes a different approach.  In Two Difficulties, an essay that prophetically reads like it was written post-2008, Chesterton says: 

It has taken many years for the false system in which we live to develop to the point at which it became topheavy and collapsed. It may take many more years to make good the damage. Rome was not rebuilt in a day. ... The industrialized countries, because of the effects of industrialism, are unlikely to witness any sudden return to normality by Government action. There is more likelihood of slow but steady recovery continued perhaps for generations, through the efforts of individuals in practical work and in the exertion of whatever influence they can have on their neighbours.

With Chesterton's approach the problems associated with "transitions, legal structures, practicalities, coercion, and costs" fade into the background, not erased but much less important.  But, Chesterton's approach poses a different problem for lawyers and law professors, especially those exploring Catholic legal theory - what role do we (can we, should we) play in offering correctives to current economic, legal, political, and social structures?  I see 3.1 roles we can play. 

First and foremost, as emphasized since the inception of MOJ nearly 8 years ago (see e.g. here and here), we can continually critique the prevailing anthropology, which incoherently reduces human persons to workers, consumers, and autonomous self-choosers/self-creators (this anthropology manifests itself albeit differently in both the left and the right) and offer an alternative rooted in natural law and revelation.  Second, given that human weakness and sinfullness are permanent realities "this side of Heaven," we can remind ourselves and others of the limits of the legal and political orders.  Third, we can work to ensure that the law leaves speace in society for followers of G.K. Chesterton, Wendell Barry, Alasdair McIntyre, Dorothy Day, the new urbanists, etc.  Fourth, and this only gets a .1 given my second point on law's need for modesty, the law might play some small role in creating incentives for building a society more conducive to authentic human flourishing.  But, like Chesterton, I remain highly skeptical of this fourth role. 

December 29, 2011 in Scaperlanda, Mike | Permalink | Comments (7) | TrackBack (0)

Wednesday, December 28, 2011

"Separate but equal"

The New York Times has an article on the Church's resistance to laws forcing Catholic Charities to place children with same-sex couples for foster care and adoption.  Most of the article's analysis is yesterday's news to regular MoJ readers, but this quote caught my attention:

When the contracts [in Illinois] came up for renewal in June, the state attorney general, along with the legal staff in the governor’s office and the Department of Children and Family Services, decided that the religious providers on state contracts would no longer be able to reject same-sex couples, said Kendall Marlowe, a spokesman for the department.

The Catholic providers offered to refer same-sex couples to other agencies (as they had been doing for unmarried couples), but that was not acceptable to the state, Mr. Marlowe said. “Separate but equal was not a sufficient solution on other civil rights issues in the past either,” he said.

The tension between religious liberty and gay rights is a thorny problem that will continue to crop up in our policy debates for the foreseeable future.  Dismissing religious liberty concerns as the progeny of a "separate but equal" mindset does not bode well for the future course of those debates.  As I've written elsewhere, trying to force every civil rights issue into the template provided by the Jim Crow south is unhealthy and unnecessary.  If our focus is -- as I think it should be -- on ensuring access to goods and services deemed essential by the political community, there is no reason to force every religious child welfare agency to include same-sex couples in its pool of prospective foster care and adoptive parents.  The dignity-based harm that discrimination causes -- and if there is no real threat to access, that is what we're talking about -- is a dangerous foundation for the state's intrusion into religious associations.  If government funding is enough to merit such intrusion, then we should be prepared, for example, to force Christian colleges that rely on federal financial aid programs to provide married student housing for same-sex couples.  In some fields, government funding is a prerequisite to meaningful market participation.  The government should have some say when taxpayer funds are involved, but it's a lot more complicated than the "separate but equal" rhetoric suggests. 

December 28, 2011 in Vischer, Rob | Permalink | Comments (50) | TrackBack (0)

Lincoln on Judicial Despotism

The question of judicial supremacy in constitutional interpretation is back on the political table.  Here is an article I did a few years ago on Abraham Lincoln's view of the matter.  It began life as the Lincoln Day address at the Union League Club of New York and then was published by First Things:


December 28, 2011 | Permalink | TrackBack (0)

Sunday, December 25, 2011

Martin Luther on the Nativity

I could just link this, and the linked blog "Mockingbird" is really good, but I'd like these words of Luther's to be on MOJ today too. Merry Christmas (and HT to my rector Neil Willard, who quoted this in last night's wonderful sermon):

Let us, then, meditate upon the Nativity just as we see it happening in our own babies. I would not have you contemplate the deity of Christ, the majesty of Christ, but rather his flesh. Look upon the Baby Jesus. Divinity may terrify man. Inexpressible majesty will crush him. That is why Christ took on our humanity, save for sin, that he should not terrify us but rather that with love and favor he should console and confirm.

Behold Christ lying in the lap of his young mother, still a virgin. What can be sweeter than the Babe, what more lovely than the mother! What fairer than her youth! What more gracious than her virginity! Look at the Child, knowing nothing. Yet all that is belongs to him, that your conscience should not fear but take comfort in him. Doubt nothing. Watch him springing in the lap of the maiden. Laugh with him. Look upon this Lord of Peace and your spirit will be at peace. See how God invites you in many ways. He places before you a Babe with whom you may take refuge. You cannot fear him, for nothing is more appealing to man than a babe. Are you affrighted? Then come to him, lying in the lap of the fairest and sweetest maid. You will see how great is the divine goodness, which seeks above all else that you should not despair. Trust him! Trust him! Here is the Child in whom is salvation. To me there is no greater consolation given to mankind than this, that Christ became man, a child, a babe, playing in the lap and at the breasts of his most gracious mother. Who is there whom this sight would not comfort? Now is overcome the power of sin, death, hell, conscience, and guilt, if you come to this gurgling Babe and believe that he is come, not to judge you, but to save.

December 25, 2011 in Berg, Thomas | Permalink | TrackBack (0)

Saturday, December 24, 2011

Larry Ribstein

On Larry Solum's site, I see today the very sad news that Professor Ribstein has passed away.  I am sorry to say that I never got to know Professor Ribstein well, but he was most kind to me a few years ago in going out of his way to offer some advice from an outsider's perspective on a paper I was working on. My condolences to his family and friends.  Requiescat in pace. 

December 24, 2011 in DeGirolami, Marc | Permalink | TrackBack (0)