Mirror of Justice

Dana Dillon on the mandate and cooperation with evil

At the Catholic Moral Theology blog, Dana Dillon helpfully (to my mind) walks through the cooperation-with-evil analysis with respect to the HHS mandate.

Authority and the Law

 

As you may recall from yesterday’s readings at the Fourth Sunday of Ordinary Time, the theme of authority was addressed in the reading from Deuteronomy and St. Mark’s Gospel. Authority is an important subject common to both Christianity and the civil law. What should Catholic legal theory’s take be on the matter?

Law that we encounter daily in civil society is a mechanism for exercising authority through the development of human norms that should be: (1) an exercise of human intelligence exercising objective reasoning that (2) takes stock of and responds to the needs of the intelligible reality that surrounds us. These two factors combine to formulate prudent normative principles that become the human law of the society for which they are promulgated to further the common good—the good of each individual and the good of everyone.

Of course, authority does not always proceed in this fashion. I suppose one reason that it does is because it possesses a sense of freedom to do what the authority wills. But this kind of freedom can be divorced from the exercise that comprehends and serves the common good. An illustration of this might be the recent HHS promulgation of regulations that will have a deleterious impact on Catholic institutions.

Here is where a thought borrowed from Lord Acton could help the authority that exercises its freedom in the promulgation of law: freedom is not what the authority wants to do; rather, freedom is what the authority must do in spite of what it wants to do. It is this latter context where human intelligence comprehending the intelligible reality has its best chance of making laws that further the common good.

 

RJA sj

 

Religious liberty and SSM in the State of Washington

Here is a letter (Download Washington letter), from Prof. Robin Fretwell Wilson, Tom Berg, Carl Esbeck, and others to legislators and officials in Washington, urging them to include meaningful protections for religious freedom in that state's pending same-sex-marriage legislation.

The Taming of Employment Division v. Smith

When Employment Division v. Smith was decided, it had committed opponents and supporters.  Opponents claimed that it represented the end of free exercise; supporters argued that at long last, the Court adopted an appropriately equal, predictable, and univocal principle of free exercise which limited the scope of its political interventions.  There was disagreement about the wisdom of Smith (including in Congress, which reacted negatively to Smith with some statutes), but few doubted that Smith was a very big deal for constitutional religious liberty.

The informed readership at MOJ of course knows that Smith carved out various exceptions to the rule that neutral laws of general application are constitutional.  The first exception dealt with the idea of hybrid rights.  The idea was that a less than independently viable free exercise claim, when coupled with another constitutional right of uncertain strength, would become viable.  Lower courts have adopted various interpretations of this exception: some have treated it as non-binding dicta, while others have tried to operationalize it in various ways.  The second exception has proved to be far more important: where the law at issue is not truly a law of general application -- where a system of individualized assessments with respect to exemption from the law has been adopted -- then the law is again subject to strict scrutiny.  I've looked into the question of how much, and how often, lower courts are using this exception (and I also inquired a bit about the extent to which litigants are using it).  It turns out...a whole lot.  Indeed, the latest example of the application of the individual assessment exception appears in a case just decided in the Sixth Circuit, where Judge Sutton held that a student who was dismissed from a counseling program because she refused on religious grounds to counsel homosexual couples and non-married couples could proceed with her claim.  The court held that the school's "no referral to other counselors" policy was not one of general application, because referrals for secular reasons had been permitted.  For more on the case, see this item.  You might wonder just how powerful the individualized assessment exception is...you will have to wait for my book to see just how much!

The third exception carved out by Smith was for the church autonomy cases, and at one time it was not clear whether the ministerial exception would fall into that exception.  In Hosanna-Tabor, the Court made clear that it did.  And now (courtesy of the excellent Professor Friedman at Religion Clause blog), it seems that the South Dakota Supreme Court has extended Hosanna-Tabor to apply outside the employment context to a case about the potential dissolution of a particular religious group.  It is too early to tell what will happen...but...it may be that because of Hosanna-Tabor's uncertain scope, lower courts (state and federal) will extend it in unexpected directions -- and directions which differ one from another.  

If this does happen, I think we may witness (in conjunction with the continuing expansion and complication of some of the other exceptions) the taming of Employment Division v. Smith.  Smith will not be overruled, but it may be substantially chipped away in various ways.  And so what appeared once -- to opponents and supporters alike -- to be a rule of iron predictability, will in fact become something very different.   

St. Thomas and the Sanctity of Mind

As Rick notes, today is the Feast of St. Thomas Aquinas. Here's a bit from a homily preached at Blackfriars (Oxford) on this feast by my late friend Herbert McCabe, OP:

St. Thomas’s life was spent in asking questions (nearly all his major works are divided up explicitly into questions), and this meant seeking to answer them. A man is a saint, though, not by what he does and achieves, but by his acceptance of failure. A saint is one who conforms to Christ, and what Jesus is about was not shown in his successes, his cures and miracles and brilliant parables and preaching, but in his failure, his defeat on the cross when he died deserted by his followers with all his life’s work in ruins.

Now whatever his many other virtues, the central sanctity of St. Thomas was a sanctity of mind, and it is shown not in the many questions he marvelously, excitingly answered, but in the one where he failed, the question he did not and could not answer and refused to pretend to answer. As Jesus saw that to refuse the defeat of the cross would be to betray his whole mission, all that he was sent for, so Thomas knew that to refuse to accept defeat about this one question would be to betray all that he had to do, his mission. And this question was the very one he started with, the one he asked as a child: What is God?

....

This, then, is the heritage Thomas has left to his [Dominican] brethren and to the Church: first, that it is our job to ask questions, to immerse ourselves so far as we can in all the human possibilities of both truth and error; then we must be passionately concerned to get the answers right, our theology must be as true as it can be; and finally we must realize that theology is not God, as faith is not God, as hope is not God: God is love. We must recognize that the greatest and most perceptive theology is straw before the unfathomable mystery of God’s love for us which will finally gather us completely by the Holy Spirit into Christ, the Word God speaks of himself to himself. Then, only then, is our first question answered.

Dean Search at St. Thomas

Many of you know that at St. Thomas we are launching a dean search, now that Tom Mengler has announced he is leaving the deanship after 10 wonderful years.  I am co-chairing the search.  Please nominate candidates.  We're at an important moment for legal education, full of challenges and opportunities, especially for a Catholic law school like ours committed to excellence, to preparing students for the changing demands of the profession, and to the integration of faith with the study and practice of law.  I believe that our school is well positioned for this moment and that leading it can be a great source of satisfaction--in the best sense of purpose and calling--for the dean.  The webpage for the search process is here and will be updated as the search proceeds.  But let me take the liberty of posting the position announcement after the page break.

Tom  

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Happy Feast of St. Thomas Aquinas!

Here is a reflection from Fr. Robert Barron, at Word on Fire.  And, if you do not yet own Chesterton's The Dumb Ox . . . fix that.

"Social Justice, Institutions, and Communities"

I really enjoyed this essay, by Adam MacLeod, at Public Discourse, on "Social Justice, Institutions, and Communities."  A bit:

If free institutions protect only the rights of the individual to pursue his own material comfort, then they are difficult to reconcile with the demands of justice. But viewed as communal institutions that serve truly common goods—ends that are both good for all and known to all, though realized in plural and incommensurable varieties—free institutions can act as vehicles of both opportunity and justice. Indeed, they might render obsolete the trench warfare between the individual and the state that pervades much contemporary public discourse about questions of justice. . . .

. . . A successful account of social justice must affirm the primacy of communities, and institutions directed by communities, over both the individual and the state in promoting human flourishing. The job of the individual in promoting social justice is to act in concert with others in his or her community to serve real needs, both within the community and in other communities. The job of the state is to support and enable free institutions—the church, the family, property ownership, charitable organizations, for-profit businesses, trade groups—to do their good work. This perhaps is not all that social justice requires, but it is a good place to start.

 

Bishop Jenky's powerful intervention

My former pastor, currently the bishop of Peoria, Rev. Daniel Jenky, C.S.C., has released a very strongly worded letter in response to the HHS decision regarding the contraception-coverage mandate.  I particularly like his call for parishes to conclude masses with the Prayer to St. Michael the Archangel!

Richard Stith on the Pope's meeting with U.S. Bishops

MOJ-friend Richard Stith reports, at the University Faculty for Life blog, on the Pope's recent meeting with U.S. Bishops, and on his call that they, and all the faithful, mobilize in support of religious freedom.