Mirror of Justice

Deanship Finalists at St. Thomas

I'm very pleased to share this announcement of the four distinguished finalist candidates for the deanship at St. Thomas--in order of their upcoming visits to campus:

• Patrick J. Borchers, Vice President for Academic Affairs and Professor of Law, Creighton University (former Dean, Creighton Law School)
• Robert K. Vischer, Associate Dean for Academic Affairs and Professor of Law, University of St. Thomas School of Law (Minnesota)
• Ruth Okediji, William L. Prosser Professor of Law, University of Minnesota (director and founder, Intellectual Property and Development Program)
• David S. Caudill, Arthur M. Goldberg Family Chair and Professor of Law, Villanova University School of Law

The announcement has brief summaries of just some of their academic and leadership credentials.  Campus interviews will happen in September.  We appreciate your prayers for this important decision in the life and mission of our school.

Tom

This is me, not blogging about the conventions and election

The Republicans are holding their convention, and the Democrats soon will.  In November, there will be an election. 

My reactions to and thoughts about these conventions, and this election, are shaped (I hope!) by my ongoing, work-in-progress effort to understand and live out better the call, challenge, and promise of the Gospel.  In my view, given all the givens, at this particular time, the common good of all -- that is, the "sum total of social conditions which allow people, either as groups or as individuals, to reach their fulfillment more fully and more easily", conditions which include, inter alia, the rule of law, religious liberty, a sustainable economy, and a thriving civil society -- will be better (not perfectly, but better) served if Gov. Romney is elected (and so appoints federal judges, fills upper-level administrative positions, takes the lead in proposing a legislative agenda, "executes the laws", and so on), and if Republicans have a majority in the Senate, than if President Obama is re-elected, and the Democrats retain their majority in the Senate. 

A whole lot of Catholic (and other) bloggers, writers, commentators, and public intellectuals will be, in great detail, arguing that this conclusion of mine is wrong, or explaining why this conclusion is right, in a wide variety of venues and outlets.  I hate to miss out on the increased blog-traffic that usually comes with election season, but -- not out of disingenuous false modesty, and certainly not because I'm somehow serenely "above politics" -- I'm inclined to try to not say much more about or in defense it (i.e., this conclusion) here.  The engaged and thoughtful people who read, or come across, this blog have probably reached their own conclusions, and are comfortable with them.  Some will prioritize (a horrible word!) the issues that I tend to -- school choice, religious freedom, pluralism in the non-state sector, the selection of federal judges, abortion regulation -- and some will emphasize others (which I certainly agree are important).

The "Catholic Legal Theory" project -- the Mirror of Justice project -- is about more than answering the "for whom should we vote? and "which policies should we enact and enforce?" questions (thought these are, obviously, crucially important questions).  It is also, and maybe more fundamentally, about the implications for the legal enterprise, and our understanding of what "law" is and is for, of the Christian proposition that every person is created, sustained, loved, and saved by God.

As I wrote in my first MOJ post (in February 2004):

One of our shared goals for this blog is to . . . "discover[] how our Catholic perspective can inform our understanding of the law."  One line of inquiry that, in my view, is particularly promising -- and one that I know several of my colleagues have written and thought about -- involves working through the implications for legal questions of a Catholic "moral anthropology."  By "moral anthropology," I mean an account of what it is about the human person that does the work in moral arguments about what we ought or ought not to do and about how we ought or ought not to be treated; I mean, in Pope John Paul II's words, the “moral truth about the human person." 

The Psalmist asked, "Lord, what is man . . . that thou makest account of him?” (Ps. 143:3).  This is not only a prayer, but a starting point for jurisprudential reflection.  All moral problems are anthropological problems, because moral arguments are built, for the most part, on anthropological presuppositions.  That is, as Professor Elshtain has put it, our attempts at moral judgment tend to reflect our “foundational assumptions about what it means to be human."  Jean Bethke Elshtain, The Dignity of the Human Person and the Idea of Human Rights: Four Inquiries, 14 JOURNAL OF LAW AND RELIGION 53, 53 (1999-2000). . .

In one article of mine, "Christian Witness, Moral Anthropology, and the Death Penalty," here, I explore the implications for the death penalty of a Catholic anthropology, one that emphasizes our "creaturehood" more than, say, our "autonomy."  And, my friend Steve Smith (University of San Diego) has an paper out that discusses what a "person as believer" anthropology might mean for our freedom-of-religion jurisprudence  that fleshes out excellent article.  I wonder if any of my colleagues have any thoughts on these matters?

Of course . . . who am I kidding?  It's only a matter of time before a "Real Catholics love teacher-unions" or "President Obama is the pro-life candidate" post or piece will pull me back in, right?  [Insert smiley-face emoticon here].

A new issue of "Church Life", and a call for papers

Notre Dame's Institute for Church Life publishes a wonderful quarterly, Church Life:  A Journal for the New Evangelization.  The latest issue is available here.  This issue includes a variety of pieces united by the theme / topic of "rites of return."  Also, here's the "call for papers" for the 2013 volume:

CHURCH LIFE: A JOURNAL FOR

THE NEW EVANGELIZATION

2013 ISSUE THEMES AND DEADLINES:

• Jesus Christ and Evangelization Manuscripts due November 16, 2012

• Catholic Education and Evangelization Manuscripts due February 15, 2013

• Preaching and Evangelization Manuscripts due May 17, 2013

• Culture and Evangelization Manuscripts due August 16, 2013

Manuscripts should be 2000 - 5000 words in length. Send to the editor, Timothy P. O’Malley, Ph.D.

[email protected]). For more detailed submission instructions, go to:

http://liturgy.nd.edu/church-life-journal-for-the-new-evangelization/2013-themes/

The Rawlsian Case against SSM?

Matthew O'Brien has posted a new paper, Why Liberal Neutrality Prohibits Same-Sex Marriage: Rawls, Political Liberalism, and the Family.  If you (like me) have never considered Rawls to be a potential linchpin in the case against SSM, you should probably check out the paper.  Here's the abstract:

John Rawls’s political liberalism and its ideal of public reason are tremendously influential in contemporary political philosophy and in constitutional law as well. Many liberals are Rawlsians of one stripe or another. This is problematic, because most liberals also support the redefinition of civil marriage to include same-sex unions, and as I show, Rawls’s political liberalism actually prohibits same-sex marriage. Recently in Perry v. Schwarzenegger, however, California’s northern federal district court reinterpreted the traditional rational basis review in terms of liberal neutrality akin to Rawls’s ideal of “public reason,” and overturned Proposition 8 and established same-sex marriage. (This reinterpretation was amplified in the 9th Circuit Court’s decision upholding the district court on appeal in Perry v. Brown). But on its own grounds Perry should have drawn the opposite conclusion. This is because all the available arguments for recognizing same-sex unions as civil marriages stem from controversial comprehensive doctrines about the good, and this violates the ideal of public reason; yet there remains a publicly reasonable argument for traditional marriage, which I sketch here. In the course of my argument I develop Rawls’s politically liberal account of the family and defend it against objections, discussing its implications for political theory and constitutional law.

Legally recognized multi-partner unions: Why not?

A public notary in Brazil has registered a three-person partnership as a legally recognized civil union.  (The BBC report is available here:   http://www.bbc.co.uk/news/world-latin-america-19402508.)  Brazilians are waiting to see how other public officials treat the notary's action. 

The notary, Claudia do Nascimento Domingues, who serves the city of Tupa, "said the move reflected the fact that the idea of a 'family' had changed. 'We are only recognising what has always existed. We are not inventing anything. For better or worse, it doesn't matter, but what we considered a family before isn't necessarily what we would consider a family today'."

Now, the reason of principle that intimate partnerships of three or more persons cannot truly be marriages, and should not be legally recognized as marriages or the equivalent, is . . .  Well, remind me again, what is it?

Of course, the reason is fairly clear for those (I'm one) who understand marriage as a conjugal partnershp, i.e., a multi-level (and in that sense comprehensive) union of husband and wife founded on the biological ("one-flesh") communion made possible by the sexual-reproductive complementarity of spouses.  For an explanation and defense, see here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1722155 ; for a more detailed statement of the case, and response to critics, see the forthcoming book by the same authors under the same title.)  But what is the reason for those who propose to ditch the conjugal understanding of marriage and replace it with a conception of marriage as sexual-romantic domestic partnership (what one opponent of the conjugal conception describes as your relationship "with your Number One Person")?

To be sure, there are those (such as the three hundred plus self-described "lesbian, gay, bisexual, transgender and allied activists, scholars, educators, writers, artists, lawyers, journalists, and community organizers," including such notables as Gloria Steinem, Barbara Ehrenreich, and Kenji Yoshino), who have already signed on (quite literally) to the proposition that there are no reasons of principle (or valid reasons of any kind) for conceiving marriage or the equivalent as a two-person relationship, as opposed to a relationship of three or more individuals (triads, quadrads, etc.) in a polyamorous sexual partnership.  (See the manifesto "Beyond Same-Sex Marriage," http://www.beyondmarriage.org/full_statement.html, expressly demanding legal recognition of, among other things, "committed, loving households in which there is more than one conjugal partner.")

But what is the reason of principle that can be given by those who, while rejecting the idea that sexual-reproductive complementarity is an essential element of marriage, do not---or do not yet---wish to jettison the idea of marriage as the sexually exclusive union of two, and not more than two, persons?  Is there a reason of principle?  Or is the belief in "two-ness" mere bigotry?

Swing State, Religion, and Policy

Late last week, the Washington Post published a photo essay entitled Liberty Through the Lens: Faith. This piece was the third in a series discussing liberty. The first lens concerned women and the second the economy. This article on faith was more than simply photographs. The Post asked a few dozen Virginians: "Do you think a political leader should rely on his or her religious beliefs in making policy decisions? How much does it matter to you that a candidate shares your religious beliefs?"

Given Virginia's connection to Thomas Jefferson and his thoughtful but complicated relationship with religion and Christianity, I found this to be an interesting exercise. Moreover, Virginia's identity as a "critical state" in the upcoming election, as well as our current national dialog regarding religious freedom, provide an interesting backdrop to the responses. While the questions posed have obvious shortcomings (For example: What is meant by "rely?"), the sample of participants small, and the answers limited in length, the piece can provide some food for thought.

I offer some observations, but suggest MOJ readers look at the piece themselves. First, my read of the responses was that the majority of participants are comfortable with or affirmatively favor political leaders drawing on religious beliefs or moral codes which the political leaders authentically hold. In other words, while there may have been a preference for some level of morality or faith, labels were an insufficient substitute for many. Second, many also underscored the importance of tolerance or respect for plurality from leaders. Finally, I observed something that continues to defy the "party operatives" and media. People are complex. When one looks at the brief description of the profession and religious identity of the participant, one might expect a certain answer. Often, the reader may be surprised by the response. Here at MOJ many have commented on our collective resistance to the media's label that "women voters" think one way or "Catholic voters" think another. This provides an anecdotal confirmation that religion and morality are complicated issues when they intersect with policy making, and many citizens understand that…even if the media and political pundits refuse to give the electorate that much credit.

Fragoso on "Judicial Conservatism" and Roe

My former student, Michael Fragoso, has the first of a two-part essay up at Public Discourse, explaining (among other things) why it is a mistake to say, as some do, that (something like) "because Republican judges helped to give us Roe v. Wade and Casey, it doesn't really make a difference, for purposes of securing a more just and constitutionally sound abortion-law regime, which party is in charge of nominating and confirming judges."  Part Two of the essay will run tomorrow . . .

On Death and Other Limitations

As some MOJ readers may already know, Chicago’s Archbishop, Francis Cardinal George, O.M.I., recently found out that he has some cancerous cells in his body.  Doctors are trying to determine if this is a new cancer or a recurrence of the bladder cancer he had six years ago.  Please keep the Cardinal in your prayers.

In his weekly column (available here) Cardinal George offers a beautiful reflection on the desire we all have for control in our lives, the absence of that control, the inevitability of death, and our relationship with God.  It is well worth reading.

Gotta Serve Somebody

So suggested / noted / warned Bob Dylan (responding, perhaps, to Milton's Lucifer).  I thought about Dylan's song during yesterday's First Reading:

Joshua gathered together all the tribes of Israel at Shechem,
summoning their elders, their leaders,
their judges, and their officers.
When they stood in ranks before God,
Joshua addressed all the people:
"If it does not please you to serve the LORD,
decide today whom you will serve,
the gods your fathers served beyond the River
or the gods of the Amorites in whose country you are now dwelling.
As for me and my household, we will serve the LORD."

But the people answered,
"Far be it from us to forsake the LORD
for the service of other gods.
For it was the LORD, our God,
who brought us and our fathers up out of the land of Egypt,
out of a state of slavery.
He performed those great miracles before our very eyes
and protected us along our entire journey
and among the peoples through whom we passed.
Therefore we also will serve the LORD, for he is our God."

Relatedly (maybe):  The legal enterprise proceeds from certain premises and "serves" certain ends, for better or worse.  That enterprise can be evaluated, it seems to me, in part by (i) evaluating those premises and ends, and (ii) evaluating how well the enterprise respects those premises and serves those ends, whether or not they are worthy of respect and service.  It seems to me that part of the "Mirror of Justice" / "Catholic Legal Theory" project should be to remind . . . everyone that "thinking like a lawyer" should involve (i), as well as (ii).

Eliot on Education and Religion

In my Catholic Social Thought course, our first class was occupied by what I call "meta-issues" -- questions involving the nature of the course, its place in a law school curriculum, and its relevance to the lives of future lawyers.  One of the difficult questions involves the relationship of academic inquiry, academic freedom, and the authentic association of an institution of higher learning with Catholicism.  We read Ex Corde Ecclesiae, and we also read material in some tension with it; I particularly like a couple of Stanley Fish's chapters in Save the World on Your Own Time as one type of counterpoint.

This evening I read an interesting old essay by T.S. Eliot called, "Modern Education and the Classics," which I may use in the future.  Modernists like Eliot and Pound can be useful on these sorts of questions, as they were occupied with their own varieties of 'aggiornamento' ("make it new!").  Here is one helpfully complicating passage, at least to introduce some doubt against the general skepticism that any relationship does or could exist between education and religion:

Questions of education are frequently discussed as if they bore no relation to the social system in which and for which the education is carried on.  This is one of the commonest reasons for the unsatisfactoriness of the answers.  It is only within a particular social system that a system of education has any meaning.  If education today seems to deteriorate, if it seems to become more and more chaotic and meaningless, it is primarily because we have no settled and satisfactory arrangement of society, and because we have both vague and diverse opinions about the kind of society we want.  Education is a subject which cannot be discussed in a void: our questions raise other questions, social, economic, financial, political.  And the bearings are on more ultimate problems even than these: to know what we want in education we must know what we want in general, we must derive our theory of education from our philosophy of life.  The problem turns out to be a religious problem.