Mirror of Justice

Teaching Feminist Legal Theory with a Faith Perspective -- and a free book offer!

This past semester I taught, for the first time, a course in Feminist Legal Theory.  I supplemented one of the standard feminist legal theory casebooks with a number of essays by women taking various faith perspectives – Catholic, Lutheran, Muslim, and Jewish -- on feminist issues, including a couple of chapters from Erika Bachichio's edited collection, Women, Sex, and the Church:  A Case for Catholic Teaching.  I also used the draft of a Teaching Guide that the Murphy Institute commissioned from Erika, which keys the relevant chapters of that book to some of the standard feminist jurisprudence casebooks. 

I wasn't sure how my class (13 women, 4 men, probably about 1/3 Catholic) would react to the faith perspectives, or how well they would fit a legal theory class.  Based both on reactions from my students, and my own observations about the class, the experiment was a great success.  As a teacher, the most interested thing I learned was how important it was to have on the table for discussion in class some alternative visions of: (1) what a family is or should be; and (2) what relations between men and women should ideally look like.  The perspectives of religious feminists provided some alternatives that could be presented as comparison to the visions presented in the standard texts.    Most often, in our classroom discussions focused on what my students personally wanted as an ideal of the family or the type of relationship, what they wanted was something very close to the Catholic vision, no matter where their theoretical commitments might be leading them. 

As a scholar interested in feminist legal theory, the most interesting thing I thing I learned from this semester was how often the religious feminists made arguments that sounded an awful lot like the arguments of the Dominance Feminists.  I expected to see a lot of convergence with Relational and Care Feminists, and I did see those, but the convergence with Dominance Feminists like Catherine MacKinnon really surprised me. 

Erika's Teaching Guide is available for free at the Murphy Institute website, here.  It provides some truly meaty background for anyone wishing to provide a Catholic perspective on a multitude of issues addressed not just in feminist legal theory courses, but many course in the law school curriculum:  abortion, contraception, marriage, work-life balance, even priesthood.  And if you look at the ad on p. 14 of the June/July issue of First Things, you'll see that we're even able to offer a limited number of review copies of the book itself for professors teaching related courses.  Contact [email protected] for more information about the free book!

(By the way, the Murphy Institute is planning on commissioning more of these sorts of guides for professors interested in supplementing law school courses with a Catholic perspective, and offering them for free on our web site.  If you are interested in writing one on any legal topic, please contact me.)

Religious Freedom Debate in North Dakota

They're really at the cutting edge In North Dakota now: they're awash not only in oil, but also in controversy over religious freedom. A proposed state constitutional amendment, on the ballot for June 12, would adopt for the state the "burden on religious exercise/compelling interest" test already applicable to the federal government through RFRA and to 27 states through statutes or constitutional rules. But the proposal has come under attack from a variety of groups. The Minneapolis Star-Tribune, which reaches much of the state, suggested in an editorial that the amendment was merely the handiwork, and for the benefit, of Catholic bishops and religious-right activists. So I published this op-ed response in the paper arguing that such measures protect religious liberty even-handedly, and with reasonable limits, for all.

As I've said here before, a great challenge today is to convince citizens of all political stripes that vigorous religious freedom is not just a ploy for the right--because more and more people dismiss it as that--but an inheritance of all Americans and a treasure of our society.

Thomas More Was Not "Unnaturally Fond of Torturing Heretics"

This past Sunday's NY Times Book Review includes a review of Bring Up the Bodies, the much-anticipated sequel to Hilary Mantel's Booker Prize-winning novel Wolf Hall about Henry VIII and his court. The hero, of sorts, in Mantel's novels about the period is Thomas Cromwell, whom Mantel sets off against Thomas More (depicted in Wolf Hall as an eager torturer of Protestants). The reviewer, Charles McGrath (former editor of the Book Review), writes: "In Mantel’s version, More is no saint, as he almost certainly was not in real life: he’s fussily pious, stiff-­necked and unnaturally fond of torturing heretics."

Let me be clear: Thomas More generally shared in the prejudices of his age and was complicit in practices (most especially the use of state coercion with regard to religious belief) that we would today regard as morally odious. That's just to say that he lived in the early sixteenth century and not the early twenty-first century, and we could have a lively discussion about how the Catholic Church should assess the sanctity of people with the benefit of historical and moral hindsight.

But a couple of further observations about the review:

1. McGrath's statement (characterizing Mantel's view) that More was "fussily pious" and "stiff-necked" is open to debate based on the contemporaneous accounts of More, though I'd simply make the point for now that More's canonization in 1935 was largely based on the manner of his death--the fact that More (alongside John Fisher and later joined by the 1970 canonization of 40 martyrs and the 1987 beatification of 85 martyrs from the sixteenth and seventeenth centuries in England) suffered martyrdom for the Catholic faith rather than acquiescing to Henry VIII's assertion of power over the Church in England.

2. It's another thing altogether to make the slanderous claim that More was "unnaturally fond of torturing heretics," for the scholarly consensus is that there is no historical evidence that More engaged in torture. As summarized by John Guy in The Public Career of Sir Thomas More (Yale, 1980), "Serious analysis precludes the repetition of protestant stories that Sir Thomas flogged heretics against a tree in his garden at Chelsea. It must exclude, too, the accusations of illegal imprisonment made against More by John Field and Thomas Phillips. Much vaunted by J.A. Froude, such charges are unsupported by independent proof. More indeed answered them in his Apology with emphatic denial. None has ever been substantiated, and we may hope that they were all untrue" (165-66). See also G.R. Elton, Studies in Tudor and Stuart Politics and Government, Papers and Reviews 1946-1972, Volume 1, 158 ("It is necessary to be very clear about More's reaction to the changes in religion which he saw all around him. No doubt, the more scurrilous stories of his personal ill-treatment of accused heretics have been properly buried, but that is not to make him into a tolerant liberal.").

More was not, of course, a tolerant liberal and was an eager persecutor of heretics while Lord Chancellor from 1529 to 1532. The number of heretics burned at the stake under More's chancellorship is generally agreed to have been six, with three cases in which More was himself involved directly. See Richard Rex, "Thomas More and the Heretics: Statesman or Fanatic?," in The Cambridge Companion to Thomas More, ed. George M. Logan (Cambridge, 2011), 93-115. Obviously, we rightly regard that today as a gross injustice, but it's hard to see how that constitutes "unnatural fondness" for persecuting heretics, particularly in light of the many hundreds put to death under Mary I or Elizabeth I over the next few generations. Nor was More's involvement out of the ordinary for his time. As Elton writes (161-62), "There is every reason to think that among the purposes [More] hoped to fulfil when he accepted office he put high the protection of the Church against heretical enemies. In this, however, he was not at all out of step with the official policy of those years. At the time, in fact, both king and Commons repeatedly demonstrated their orthodoxy in order to rebut the charge that their actions against clergy and pope were equal to heresy. More was more zealous and almost certainly more sincere than most, but as an enemy of heresy he had, during his years as chancellor, nothing to apprehend from king or Council."

Garvey on the mandate and church-state separation

Separation properly understood, that is.  Check it out.  Here's the nice concluding paragraph:

The government has been eager to regulate the behavior of churches in ways more to its liking. It does this by defining religion down, so that only the most rigid and separatist groups are exempt. The rest are, for constitutional purposes, no different from the Jaycees or the Elks Club. We might say that the wall of separation is intact, but the government has made it so small that it encloses nothing more than a flower bed.

What Are We Doing For Those Being Left Behind

[Cross-posted from Creo en Dios!]

When my friend Richard met me for lunch the other day, he gave me a copy of a book title The Other Wes Moore: One Name, Two Fates. The book will be read by all first-year students at the University of Minnesota – Twin Cities this year, and other members of the university community (which includes my friend Richard) are invited to read it along with them. Richard ha an extra copy and thought I might be interested in reading it. He was right. I finished reading it within 48 hours after our lunch.

The book, written by Wes Moore, tells the story of two boys named Wes Moore, one of whom is that author. Both boys grew up fatherless in Baltimore, both had difficult childhoods, both had trouble with the police. But whereas the author grew up to join the military, graduating college with distinction, become a Rhodes Scholar, a White House Fellow and then a successful business leader, the other is serving a life sentence for felony murder.

The book does not try to explicitly answer the question so many people have asked the author: What made the difference between the two Wes Moore’s? How do we explain how two boys with similar backgrounds and identical names ended up in such radically different places?

There is clearly no one answer to that question. It is no more possible to answer it with respect to these two boys than it is to understand why the lives of some people are easier than others. Why do some seem to get all the breaks and others none? Why does every step seem difficult for some and paved for success for another?

One thing is clear, however. As a society we can and must acknowledge that we need to do a better job than we are doing to be sure that all of our young people are given a chance to make the best decisions possible about what to do with their lives. To make sure that everyone has the opportunity to succeed. That no one is viewed as expendable. That we are providing a good education to everyone, not just those with family resources. That no young person views selling drugs or other crime as their only way to make ends meet.

And each of us has a role to play. Whether it is providing necessary mentoring for young people without reliable adult figures in their lives. Or advocating on behalf of the vulnerable. Of contributing resources to those who do. Or finding some other way to make a difference.

The Compendium of the Social Doctrine of the Church speaks of the need to have the good of all people as it primary goal, reminding us that everyone “has the right to enjoy the conditions of human life brought about by the quest for the common good.” It also advises us of the fact that no one is exempt from cooperating in advancing the common good. Right now, a lot of people are being left behind and we can all do a better job of helping them.

In the book, one boy was given a chance and the other wasn't. My heart rejoices for the Wes Moore who had people who went out of their way to ensure that he has options. And my heart grieves for the Wes Moore who will remain in jail for the rest of his life.

Intersection of Graduation Day and Memorial Day

 

Thanks to Tom for this post regarding the wonderful Tom Mengler and his thoughtful reflections on why a Catholic law school should be Catholic. I would like to offer an example of what I think Dean, now President, Mengler referenced.

Earlier this week I was present at our law school graduation mass. It was especially lovely due to bountiful student participation. An acutely poignant moment for me was during the prayers of the faithful, which were read by many individual students. The prayer for members of our military, particularly those who had been killed or injured and their families, was read by a student, Mary, whom I knew to be a veteran. She was also the President of our Catholic Lawyers Guild. As she read those words, I was moved, as I knew that she intensely understood their profound meaning. With less than one percent of Americans in active duty military service, Mary had been asked to serve her country at great sacrifice and risk. She had resisted the social messaging given to her generation (not to mention women of her generation) as well as the easier path of self-enrichment selected by most of her peers, and answered the call of her country. No doubt as she read that prayer, she was keenly aware of the effects of war and its casualties.

That, however, was not the most interesting part of this observation. I had had the pleasure of meeting her mother, also named Mary, before mass. Like many of the graduates' parents, she was beaming with pride. The three of us began talking and I had remembered that the Mary's brother had come to visit our law school class shortly before himself deploying to Afghanistan. I also learned another brother was a fireman. I inquired from the mother if theirs was a military family and was surprised to learn it was not. What inspired her children to follow such paths of service and heroism? "Oh, that was September 11^th," she modestly stated.

It was not just September 11^th. As I talked more to this family and their particularly humble mother, it was clear to me it was so much more. It seemed to me that through her faith, this mother had instilled values of service, sacrifice, and responsibility in her children. So, when an event like September 11^th occurred, they were ready to respond in a way few others do…with their lives if necessary.

This is perhaps an example of what Dean Mengler meant when he said that a Catholic law school should help students "continue on their journeys by searching actively for the truth in their lives." These are the students who come to us. Whether, as I suspect in Mary's case, they come from a Catholic tradition which values service, or from some other community, so many students come to law school searching for that truth in their lives, and understanding that it is found often in serving others. I might suggest that it is one role of a Catholic law school: to continue the work of the students and their mothers and fathers, families, and all those who helped instill in those students such values. The Catholic law school is different because its mission does not end with solely providing intellectual and academic excellence - necessary components of a legal education. Beyond that, it should also be a place that nurtures these students, reinforces and strengthens their resolve to serve, and awakens such a resolve in others. As in Mary's case, they often come to us from fertile ground. We take on an almost sacred responsibility to cultivate that ground, make it more potent, and support it, such that it will bloom even more brilliantly than when it came.

Our conversation ended with Mary's mother saying she "was so excited to see what Mary will do next. I know it is going to be great." I was honored to have met them, honored to have been present for the prayer, and honored that Mary and students like her choose to attend our law school. Catholic law schools, I might suggest, serve an important role of nurturing and promoting the whole student to achieve all the great-- and selfless-- things Mary's mother envisions.

"'Mommy Wars' Redux"

The NYT this weekend published another of its periodic pieces about 'the Mommy Wars',this one really solid summary of the current state of the argument in feminist legal theory, by Dartmouth philosopher Amy Allen.  She ends with this conclusion, the same one I've reached in a lot of my work.  So many of the feminist legal theories & mainstream media debates focus on the psychological or theoretical implications of the 'choice' a relatively few privileged women in this country have between raising a family and taking a paying job, when the more significant issue is a structural conflict:

. . . the conflict between economic policies and social institutions that set up systematic obstacles to women working outside of the home — in the United States, the lack of affordable, high quality day care, paid parental leave, flex time and so on — and the ideologies that support those policies and institutions, on the one hand, and equality for women, on the other hand.

This is the conflict that we should be talking about.  Unfortunately this is also a conversation that is difficult for us to have in the United States where discussions of feminism always seem to boil down to questions of choice.  The problem with framing the mommy wars in terms of choice is not just that only highly educated, affluent, mostly white women have a genuine choice about whether to become über moms (though the ways in which educational, economic and racial privilege structure women’s choices is a serious problem that must not be overlooked).  The problem is also that under current social, economic, and cultural conditions, no matter what one chooses, there will be costs:  for stay at home mothers, increased economic vulnerability and dependence on their spouses, which can decrease their exit options and thus their power in their marriages; for working mothers, the high costs of quality child care and difficulty keeping up at work with those who either have no children or have spouses at home taking care of them, which exacerbates the wage gap and keeps the glass ceiling in place. (Families with working mothers and fathers who are primary care givers avoid some of these problems, but have to pay the costs associated with transgressing traditional gender norms and expectations.)

If the “the conflict” continues to be framed as one between women — between liberal and cultural feminists, or between stay at home mothers and working women, or between affluent professionals and working class women, or between mothers and childless women — it will continue to distract us from what we should really be doing: working together — women and men together— to change the cultural, social and economic conditions within these crucial choices are made.

A Poor Editorial

This is a silly and uninformed editorial.  There are, of course, differences of opinion about the political wisdom of the HHS mandate and resistance to it.  But this editorial is about the legal challenge to the mandate.  And it calls that challenge "built on air."  Actually, it is built on the Constitution and a federal statute, and we'll soon see whether those foundations remain solid enough to support it.

The editorial does mention the Constitution and the federal statute.  But what it says misrepresents both.  It also fails to mention that the original mandate -- and not the putative change in plans alluded to by the President in February -- is at present the law.  The editorial uses Employment Division v. Smith as an argument that the government ought not to accommodate dissenting religious conscience.  And it makes the following colossally stupid statement about RFRA: "In 1993, Congress required government actions that “substantially burden a person's exercise of religion” to advance a compelling interest by the least restrictive means. The new contraceptive policy does that by promoting women’s health and autonomy."  Can anybody figure out how the second sentence follows from the first?  Did anyone at the Times think to check with a lawyer before writing this?  How about a law student?

There are arguments to be made in defense of the mandate.  Surely the government will make them in court.  But this editorial neither makes nor even references any of them.  What an embarrassment.

School's Out

Not Catholic Legal Theory, but an important reminder:

The school year is coming to an end.  Among other consequences of school being out for summer is that families of thousands of children who receive free or reduced-cost meals during the school year have to replace those meals, which puts increased demand on food shelves around the country.

Although demand at food shelves is highest duing the months of June, July and August, donations are usually at their lowest during the summer.  

So please remember to donate generously to your local food shelves, which usually are happy to receive cash as well as food donations.  

Tom Mengler's Legacy: "Why a Catholic Law School Should Be Catholic"

As I write this post, Tom Mengler is finishing his last day as dean at  St. Thomas.  Susan has already expressed the mixed feeling of sadness and peace that we feel as Tom and Mona follow their call to his new position as president of St. Mary's University (San Antonio).  I'm reflecting today joyfully on the many things that the law school has put in motion or carried forward during the 10 years of Tom's leadership--10 of the 12 crucial first years of our institution.  It's fitting, I think, to link to Tom's own description, from his 2009/10 speech and article at Villanova, of "why a Catholic law school should be Catholic" and what has progressed and might progress on that front both among schools generally and at St. Thomas.  From his conclusion:

As we at St. Thomas have together reflected on the core of a Catholic law school, we have tried to focus principally on two reasons why we believe a Catholic law school should be Catholic: the integration of Catholic thought, as well as other religious traditions, in faculty scholarship and throughout the academic program and the encouragement of everyone in the community – students, faculty, and staff – to continue on their journeys by searching actively for the truth in their lives. We believe ultimately that from these twin goals everything that is commonly associated with a Catholic law school follows – an embracing community, a service ethic that is focused on our most vulnerable neighbors, a commitment to the highest professionalism. Grounded in an intellectual, moral, and spiritual formation, we hope to prepare our students for purposeful lives as lawyers and servant leaders of their communities. In so doing, we try to fulfill the mission of a Catholic law school.

Thanks, Tom and Mona, and godspeed.