Mirror of Justice

Justice Scalia at St. John's Law School

The Center for Law and Religion is pleased to announce that Justice Antonin Scalia will visit us at St. John's Law School next Monday, April 2, at 4:15 pm.  His is the fifth session in our ongoing seminar, Colloquium in Law: Law and Religion.  Justice Scalia will discuss his opinions in several of the Court's religion clause cases, focusing especially on Employment Division v. Smith; Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah; Lee v. Weisman; Bd. of Education of Kiryas Joel Village Sch. Dist. v. Grumet; Lamb's Chapel v. Center Moriches Union Free Sch. Dist.; Capitol Square Review and Advisory Bd. v. Pinette; and McCreary County v. ACLU.     

Academics in the New York area and beyond are welcome to attend, but for this visit, an RSVP to me is essential. 

A short reply to Michael Sean Winters's longish response

Michael Sean Winters shares this "longish response" to my "short reply" to David Gibson's post on right-leaning "cafeteria" Catholics.  Read the whole thing.

I think Winters and I agree about more than (perhaps) he thinks.  The main point of my reply (or, what I intended to be my main point, even if I failed to make it well) is that the following two positions are different:  (A)  “The Church teaches X, but I am not willing to work to have the laws reflect X, because the norms of liberal democracy require that I not do so” (the Cuomo position), and (B) “The Church teaches that X, and – in my view – the best way to operationalize X is different from what left-leaning Catholics, and even, say, the USCCB, say is the best way" (the position that I think better describes most "Catholic conservatives'" views with respect to social-welfare, taxation, spending, and economic policy).  

Winters and I agree (I think) that (A) and (B) are different, and that (B) is not appropriately characterized as reflecting “cafeteria” Catholicism.

We also agree (I think) that there are (inter alia) two other groups:  (i) liberals who say “the Church teaches X, but the Church is wrong, but I’m still a good Catholic” (the Pelosi position with respect to many "life" and "social" issues) and (ii) conservatives who say the same thing (let's say the Santorum position with respect to immigration and torture).  Where he and I appear to disagree (I think) is here:  He puts some people in (ii) whom I would put in (B).  That is, I think (B) is where most "Catholic conservatives" are, and Winters appears to think that most are in (ii). 

We also agree, by the way, that (B) has boundaries, and that responsible, informed, engaged, reflective citizenship will rule out some operationalizations of the Church's social doctrine.  I think, though, that when it comes to economics, taxation, spending, the design of social-welfare programs, not very many proposed operationalizations are ruled out, and that not all (or even most) of the ones that are ruled out are "conservative" ones.  But (unfortunately), some of the core, unquestioned, unquestionable policy commitments, regarding "life" and "social issues," of today's political left are ruled out (and it is not a defense of the left to this charge to point out, as Gibson did, that (ii), above, is a non-empty set).

"Cafeteria" Catholics, Left and Right: A Short Response to David Gibson

David Gibson comments (as have Michael Sean Winters and John Allen, and others too, I'm sure) on the Pope's recent observations about "a certain schizophrenia between individual and public morality," and notes that the Pope was not talking about the more-often-noted phenomenon of Catholic politicians supporting abortion rights but instead "about social justice and the gap between rich and poor, and the need to bring the church’s social teaching — all of it — to bear on political life."  In so doing, Gibson suggests, the Pope was "subvert[ing] the party line" and "complicat[ing] things for Catholic conservatives and Paul Ryan Republicans. Not that you’d know from our political and ecclesial discourse."

I agree entirely -- but, then again, I don't know any "Catholic conservatives" who don't -- that it is not only the Church's teachings on human dignity, the inviolability of human life, and religious freedom that need to be brought "to bear on political life," but rather "all of [the Church's social teaching]."  I'm not sure, though, what the "party line" is that David says the Pope is subverting, or why the Pope's observation complicates things for "Catholic conservatives." 

Yes, if there are conservatives out there who think that only part, and not all, of the Church's social teaching needs to brought to bear -- prudently, carefully, intelligently -- by the lay faithful on political life then, well, they are wrong.  That said, I think it is a mistake to equate (a) the claim that Catholic politicians should not, in a democracy, vote to protect legally vulnerable human life because to do so would involve "imposing" "Catholic morality" and (b) the claim that, all things considered, the Church's social teaching, reasonably applied to the facts as best we can know them, does not always point clearly in the direction of left-liberal social-welfare policies.  Sometimes, I assume, it does; often, I am confident, it doesn't.  But, to say that it often doesn't is not to make the "Mario Cuomo" / "personally opposed, but" mistake; it is not to say that the the morality of liberal democracy requires one not to allow the Church's social teaching -- all of it -- to inform one's views about economic policy.  This is a difference, it seems to me, that matters. 

Fr. Araujo on China and religious freedom: "Render Unto Mao"

Following up on my re-posting, yesterday, on "China, Canossa, and Religious Freedom," check out this new paper (Download Araujo on China) by our own Fr. Araujo, "Render Unto Mao The Things That Are Mao's":

My examination investigates the matter of religious liberty in China, a country often in the news these days on many fronts that include its persecution, in different ways, of religious believers. While formally a communist state, the reality of China today in the early twenty-first century is quite different. The country presently has a robust economy that encourages aggressive capitalist development that is subject to state control but which is often arbitrarily exercised against its own citizens and foreign nationals. One of the rights claimed by persons around the world is religious freedom. However, in China, this right is often subject to the whimsical and sometimes brutal control of the state. This paper focuses on the particular status of the Catholic Church in China and the state’s positivist control of the fidelity of Catholic Christians.

Wack-a-Doddle-ry in ACLU v. Sebelius

Even during a week when the attention of the Whole World is fixed on a certain Big Case in the Supreme Court of the United States, it would be a mistake to overlook a ruling – handed down late last Friday night by a federal trial-court judge in Massachusetts – that surely ranks among the worst manglings of the First Amendment ever to emanate from a judge’s chambers.  The case is ACLU v. Sebelius, and the opinion is available here. 

In a nutshell, Judge Richard Stearns ruled that it would violate the Establishment Clause for the federal government to cooperate with the nation’s Catholic bishops in the fight against human trafficking, because the bishops require that those with whom they sub-contract in this effort not to use any of the federal monies to pay for counseling or referrals for abortion and contraception.  So, here’s the argument:  Because the bishops’ requirement reflects their “religious” opposition to abortion and contraception, it amounts to an “establishment” of religion – and an unconstitutional delegation of secular authority to religious institutions – for the government to fund their anti-trafficking efforts.  According to Judge Stearns, the policy of the bishops becomes, by virtue of their (generous, humane, and useful) cooperation with the government, the policy of the government, and the Constitution does not permit the government to have such a policy of imposing “religious” requirements as conditions of receiving government aid. 

This is the wooliest of wooly-headed reasoning.  For starters, it would not violate the Establishment Clause for the government to decide its human-trafficking funds should not be used, by anyone, to pay for abortion- and contraception-related counseling.  To understate the matter, the government is not required to subsidize or support abortions, and opposition to abortion is no more suspect because many religious believers oppose it than opposition to human trafficking is suspect because many religious believers oppose it. 

Next, it is not the case that the religion-inspired policies and practices of institutions that receive public funds somehow become, for constitutional purposes, the government’s own policies.  If Judge Stearns were right (and he certainly is not), then it is unconstitutional for a Catholic school that receives some special-education-related or school-lunch funding for low-income students to have morning chapel or First Communion classes.  If Judge Stearns were right (and, again, he isn’t), the federal government would be required to forbid any religious institutions that participate in “charitable choice” and “faith-based initiative” programs from taking religious-mission into account when hiring.  

At Mother Jones, they are (sigh) crowing .  For some, it appears, any loss for the bishops is a win, which explains the headline, “Catholic Bishops Lose a Big Battle Over Contraception.”  Actually, the loss here is by those victims of human trafficking whom the bishops and other religious institutions help, but – it appears – symbolic thumpings of Catholic prelates count for more than alleviating the very non-symbolic suffering of real, vulnerable people.  

In recent days, many bien pensant commentators have embraced the unattractive tactic of asserting that the challenges to the health-insurance mandate are, of course, frivolous, and that the only explanation for a Court decision striking it down would be low politics.  I suspect that these commentators know better, and are merely trying to condition the environment to receive their outraged denunciations of a ruling – if one comes – limiting the Affordable Care Act.  The loopy ruling in ACLU v. Sebelius, however, shows us what inexplicably erroneous rulings and frivolous arguments actually look like, and they are not pretty.

UPDATE:  Michael Sean Winters has more, here ("A Horrible Court Decision in Mass."), and Kevin Clarke discusses the case here, at America.

5 years ago today, at MOJ: "China, Canossa, and Religious Freedom"

Here was my post from March 26, 2007:

China, Canossa, and Religious Freedom

Shameless self-promotion time:  In today's issue of USA Today, I have this op-ed, "China's lesson on religious freedom," which is about the Holy See's resistance to China's efforts to select Catholic bishops.  Here's a bit:

Although its government likes to claim otherwise, and apparently hopes people won't notice, meaningful religious freedom does not exist in China. Quite the contrary: As the U.S. Commission on International Religious Freedom stated in its report last year, "The Chinese government continues to engage in systematic and egregious violations of freedom of religion or belief."

And so, it was probably more disappointing than surprising when the government-controlled puppet church, the Chinese Patriotic Catholic Association, late last year purported to ordain a new bishop for Roman Catholics in the Xuzhou Diocese, about 400 miles south of Beijing, over the objections of the Holy See.

Why should we care? True, we might sympathize with the millions of Chinese believers whose freedom of conscience is systematically violated, and we might harbor a general unease about China's increasing power, ambition and influence. But putting that aside, is there any reason, really, why Americans should worry much about which of these two bureaucratic adversaries — the Holy See or the People's Republic — picks Chinese bishops? . . .

The struggle for the church's freedom in China reminds us that what the separation of church and state calls for is not a public conversation or social landscape from which God is absent or banished. The point of separation is not to prevent religious believers from addressing political questions or to block laws that reflect moral commitments. Instead, "separation" refers to an institutional arrangement, and a constitutional order, in which religious institutions are free and self-governing — neither above and controlling, or beneath and subordinate to, the state. This freedom limits the state and so safeguards the freedom of all — believers and non-believers alike.

Some thoughts from a law student about religious freedom

I've invited the students in my "Catholic Social Thought and the Law" class to help me feed the blog-beast by sharing thoughts, in blog-post format, about the readings.  One of the students in the seminar shared the following, which was prompted by some readings we did on religious freedom, and from the Pope's Deus caritas est:

If there’s anything I’ve learned in law school, it’s that the law can be complicated. More often than not, the law isn’t what it seems to be.  One of the biggest misunderstandings is the freedom of religion. Of course, it’s not that easy. Can we blame citizens for thinking that freedom of religion means they are free to exercise their religion as they see fit? Isn’t that what, truly, the freedom of religion means? Well, it’s complicated. . . .

Religious freedom isn’t what many think it is because the State has changed its definition.  In Rerum Novarum, Pope Leo XIII discussed the Church’s role in being a witness, evangelizing, and influencing the society that surrounds it. But, if part of the Church’s religious freedom includes her influence through open evangelization and others feel her influence is offensive, infringes upon their religion, or is threatening to the secular State, the State won't let the Church practice her religion the way she wants to practice it. The Church is not threatening. Not being “secular” does not make the Church “bad. Any risk of “threat” is in precise contradiction to elementary teachings of the Christian faith generally and the Catholic Church specifically.  Instead of bringing about healthy differences that energize the democratic society, religion is seen by the State as being divisive, destructive… even if she cooperates with political authority and presents, as Ratzinger put it, a modest “liveable alternative.” And still, being harmless, the State insists that the Church is better when it's not the exact way it's ordained by God to be--freely engaging in her religion. 

If the Church isn’t free to be different from the State when the Church does not harm the State, then is the Church really free? No. The Church is limited for reasons that are not so neutral, forcing her to learn of different ways that she can be so  different—transforming her ideals of being the salt of the earth, shining as a light, and emanating God's love—until  the next time she is forced to curb her behavior. Then, it will come a time when "religious freedom" just can't be called that anymore, it just can't be called what it isn't.

Wisdom from Jean Vanier

This came across my e-mail as my "daily thought"  by the founder of L'Arche, Jean Vanier (these daily e-mails are a service of L'Arche Canada) .   An interesting thought for leaders of communities of all types:

The Gift of the Poor The people with the best sense of what is essential to a community, of what gives and maintains its spirit, are often doing very humble, manual tasks. It is often the poorest person - the one who has a handicap or who is ill or old - who is the most prophetic. People who carry responsibility must be close to them and know what they think, because it is often they who are free enough to see with the greatest clarity the needs, beauty and pain of the community. Jean Vanier, Community and Growth, p. 262

Some after-dinner thoughts on Catholic law schools and universities

I had the occasion, the other day, to write up a few occasional thoughts on the role, mission, and aims of a Catholic law school, and of Notre Dame's in particular: 

The late Blessed Pope John Paul II observed that a Catholic University is “born from the heart of the Church.”  And we who are blessed to be a part of the Notre Dame Law School like to think that it is providential that our striking facilities are located, in turn, at the heart of this great Catholic university’s beautiful campus.  A Catholic university is called to creativity, to exploration, to the search for truth, and to the transformation of the world.  The work and mission of a Catholic law school – of our Law School – are essential to this project.

In our times, a great University must have a global focus – it must reach across boundaries and borders – and Law is indispensable to any effort to unite citizens, leaders, scholars, and societies.

In today’s world, research and learning must be interdisciplinary – their aim must be to uncover illuminating connections – and Law has always involved identifying the similar features of seemingly different cases and questions.

And, in our current context, it is crucial that the scholars and students be engaged with the world, and with what the Second Vatican Council called the “joys and the hopes”, as well as the “griefs and the anxieties,” of men and women everywhere.  The study of law and the formation of lawyers are, necessarily, activities that engage us with the world, its challenges, and its opportunities.  The work of a Catholic law school is both theoretical and practical; it involves critical reflection and careful application.

Here at Notre Dame, then, we believe that a great Catholic law school – that is, one that is meaningfully, distinctively, and interestingly Catholic – not only serves the needs of the profession and the community, it also plays an indispensable role in the high calling of a Catholic university.

As we see it, a Catholic law school – like Notre Dame – is able to be a better law school, and to better form conscientious professionals and leaders, precisely because it is Catholic.  It’s well known that law and lawyering get a criticism these days, and much of it is well deserved.  Too often, law is seen as a “bag of tricks” to be manipulated by the powerful for their own ends; too often, lawyers are content to regard themselves as “hired guns” or as mere technicians; too often, the formulation of legal rules and policies seems driven simply by partisanship rather than wise and prudent consideration of real-world facts and the needs of the community.

At a Catholic law school, though – and at Notre Dame – we can take comfort, and find inspiration, in the fact that our tradition has taught for centuries that law is an “ordinance of reason” and that its aim is the “common good.”  Our faith provides a vision of what law, done right, is supposed to be, and really can be.  It is not an exaggeration to say that the study and practice of law is elevated, for us, because we know that our human efforts to develop and implement just and efficient laws are reflections of – they participate in – the very mind of God.

Now, this might sound a bit grandiose or “high-falutin’.”   As every lawyer knows, the legal enterprise is not only about philosophical reflections on the nature of justice or the splendor of truth; it’s also about the nuts and bolts of crafting arguments, reaching agreements, finding facts, and solving problems.  We lawyers are inspired by the words of our patron saint, Thomas More, who notes – in Robert Bolt’s wonderful play, A Man for All Seasons – that God made men and women to “serve Him wittily, in the tangle of their minds.”  The life of the mind is an arena for serving God, and we lawyers like to think that we have a special calling to supply the wits, and help unravel the tangle.

At Notre Dame Law School, three words, or themes, come up again and again in our conversations about how we should do what we do, how we can strengthen and enrich this University, and about what makes us different from the many other fine law schools.  Those words are community, integration, and vocation.

We aspire to be not just a collection of individuals, but a true community of teachers, scholars, students, and professionals, united by a passion for justice.  The Church has long taught, in its social doctrine, that the human person is social, and flourishes only in and through community.  This is certainly true for law and lawyers.  At Notre Dame, our goal is to serve the common good – to put the law and our legal talents in the service of that good – and to do so in community.  The word “community” for us expresses both how and why we “do law.”  We invite our students not only to three years of technical training, but also to a shared enterprise, a learned profession, and a lifetime of relationships.

We also aim for integration.  Too many lawyers are unhappy, and this is in part because they have been taught to radically compartmentalize, and dis-integrate, their lives.  A Catholic university is committed to the idea that faith and reason work together – that they are, in the late Pope’s words – “like two wings on which the human spirit rises to the contemplation of truth.”  Just as faith and reason can and must be integrated in the search for knowledge, it is also essential for professionals and students that their work, values, commitments, and loves be integrated and coherent.  At Notre Dame, we invite and try to inspire young lawyers to bring their values and religious faith to their studies, and then to carry them into their lives in the law.  In our view, we cannot expect young lawyers to think deeply and well about law, justice, and the common good if we tell them to privatize their ideals, or to radically separate their fundamental moral commitments from their law practices.  And so, we encourage our students to approach their vocations – as lawyers, spouses, parents, friends, and citizens – as whole persons.  We challenge them to integrate their work, their beliefs, their values, and their activism.  We urge them always to remember who they are, what they believe, where they came from, and to resist the temptation to “check their faith at the door” of their professional and public lives.

Finally, “vocation.”  Many of us, when we hear the word, probably think either in terms of the clergy and religious life, or "vo-tech" classes.  We mean something different, though, when we challenge our students to think of their lives in the law in terms of vocation, and calling.  We are not naïve.  We know that, for many, law is experienced more as a job, and less as an adventure.  We know that plenty of people go to law school, and go into law practice, not because they heard a “call,” but because their parents expected it, or because lawyers in the movies seemed glamorous, or because they couldn’t think of anything else to do.  Still, we propose to our students and graduates – and to our profession – that we should all wrestle with the question, “what would it mean for my time in law school, and for my life in the law, if I tried to think about the law as a vocation?”  We challenge our students and colleagues to ask, “who is calling me, and what am I being called to do?”  These are difficult questions to ask, yet alone to answer.  Odds are, we won’t get instructions from a Burning Bush, or be blinded by a light on the road to Damascus, or even get the answer from a still, small voice in the night.  Still, we try to listen. 

Robby George Appointed to U.S. Commission on International Religious Freedom

Congratulations to our own Robby George upon his appointment to the U.S. Commission on International Religious Freedom. House Speaker John Boehner's press release is here, and the Becket Fund has a story here.