Mirror of Justice

The catacomb is on the other foot, George

Why does George Weigel have it in for Catholics or -- as they're sometimes called in a display of pleonasm -- traditional Catholics?  Over at National Review, Weigel writes that "the challenge also won’t be met by Catholic traditionalists retreating into auto-constructed catacombs."  You can read Weigel's essay to see what he thinks "the challenge" is, but I'll just tip my hand and suggest that he's got it wrong.

My only purpose here is to note that it's not "Catholic traditionalists" who are constructing catacombs. Weigel has things exactly backwards.  As I've pointed out many times (including in this recent paper), it's self-describing neo-con and self-describing liberal Catholics -- not Catholics simpliciter -- who are content to seek legal accommodations that leave the immoral status quo otherwise intact.  They're the ones taking up residence in legally sculpted catacombs.  It's the Catholics who haven't drunk the Kool-Aid of liberalism who labor in love to correct and transform the culture.  They are the ones who refuse to retreat into the catacombs of legal accommodation.  

Weigel needs to stop scapegoating the few Catholics who are actually refusing the catacomb strategy that is the current darling of the American bishops.  The souls Weigel villifies as "Catholic traditionalists" are among those who care enough to "direct[] Christian service to human society to bring about the kingdom of God" (Bernard Longergan, Method in Theology, 362).  I'm not the only one who is weary of Weigel's distortions, inversions, and ingratitude.  See here

Baseball and Catholic Legal Theory

This is a blog dedicated to the development of Catholic legal theory. As Rick noted recently, we are loathe to impose our personal views on issues of the day because this is "not a … 'current events' blog." While at times we have entertained discussion on events which some cynical folks could perhaps argue are not directly on point with Catholic legal theory (see here, here, and here), we have tried to stay the course. I for one, however, have both enjoyed and been challenged by these other entries. I believe they arise from deep passions about the state of being human and answer the Ignatian call of "cura personalis." Indeed, as one of the nation's leading Catholic and Jesuit universities notes, "St. Ignatius believed that God could be discovered in every human endeavor, facet of learning and experience, and field of study. Consequently, he promoted the development of the spiritual, intellectual, artistic, social, and physical aspects of each person."

Therefore, particularly while the Church is in the hands of the Jesuit Pope Francis, I feel authorized…no indeed compelled…to comment upon a major spiritual force in my own life – the Boston Red Sox.

This is, of course, a challenge. While surely I could talk about the team being an example of faith (8 decades of support without a title), redemption (compare last season to this season), or healing (see the tremendous work of the Red Sox Foundation with veterans and the team's support of Boston Strong), that would miss the mark to connect to legal theory. Fortunately, the Bishops have offered me a path.

The Boston Globe recently reported that Cardinal O'Malley of Boston and Archbishop Carlson of St. Louis have a wager between them on the World Series. This is no small amount, but $100, no less. Like Captain Renault, I was at first "shocked, shocked to find that gambling is going on here!" As a responsible member of this blog, I set out to discover if this sort of behavior was consistent with Catholic social doctrine. I was relieved to discover that Catechism 2413 addresses this issue, stating that "Games of chance (card games, etc.) or wagers are not in themselves contrary to justice. They become morally unacceptable when they deprive someone of what is necessary to provide for his needs and those of others." Fortunately, neither of these Church officials will be depriving themselves of what is necessary to provide for their needs, because the wager will be paid to the winning Archdiocese's Catholic Charities fund. This is an excellent model of integrating the development of the physical with the social obligation of service to others…much like the Red Sox have done with their aforementioned charity work. It further echoes the Pope's statements this summer about the power of sport and its athletes to build and transform communities. Therefore, this wager appears to be both legal and morally responsible.

Having succeeded in my mission of offering a blog post which touches on the Red Sox and Catholic legal theory, I am now free to say what I really wanted to say: Go Sox.

More on multiple partner unions

I'm grateful to Rob for his post, following up on mine, about polyamory. Its premise is one that is strongly, and often angrily, rejected by poly activists and by my own polyamorist friends, namely, that polyamory involves or reflects a lack of self-discipline or the rejection of the idea of self-denial as an essential part of building strong, loving, mature relationships.  They and their allies and supporters (such as the 300+ self-identified LGBT and allied scholars, lawyers, journalists, and activists who published the manifesto "Beyond Same-Sex Marriage"--a group that includes respected mainstream figures such as Gloria Steinem, Barbara Ehrenreich, and Kenji Yoshino) would, I have no doubt, sharply react against the claim that polyamory "is attractive because monogamy is hard."  They would, I suspect, view this as a prejudice against those who find fulfillment in the total self-giving of multiple partners--which, they insist, is hard work and requires self-discipline and generosity of spirit towards others every bit as much as monogamy does--and whose identity is significantly defined in connection with that way of finding fulfillment. Who, apart from those who stand by traditional ideas about marriage and sexual morality, can deny them?  And (here I repeat myself) on what ground of moral principle?

This explains, I believe, why polyamorist groups are welcome at Pride parades, for example. They are regarded from within the movement as the next sexual minority in line for liberation and social acceptance. Indeed, they are already accepted within the movement.  It is understood that the appeal they are making is not different in substance from the appeal made by those sexual minorities whose progress has come ahead of theirs. Sure, they had to be pushed into the closet for a while, in order to blunt the arguments advanced by defenders of the conjugal conception of marriage and the moral norms associated with it. But that is no longer necessary. They can be mainstreamed using the same script.

Are polyamorous relationships often unstable? Sure. But so are many same-sex relationships. So are many opposite-sex relationships. Is there any a priori reason to suppose that among people who view marriage as essentially sexual-romantic companionship or domestic partnership and who construct their lives and relationships in line with that view, polyamorous partnerships will be more unstable than monogamous ones?  Is there any evidence for such a supposition?  And even if there is, what would follow from it for the claims of those who believe their personal fulfillment is to be found in multiple partner unions, even if statistically such unions tend to be less stable than other types?

As I say, the logic unfolds.

Polyamory and self-denial

Like Robby, I was struck by CNN's story about polyamory.  Here's another quote from the story, though, that hints at hope in distinguishing polyamory from SSM:

More often than not, non-monogamy leads to the demise of relationships, said Karen Ruskin, a Boston-area psychotherapist with more than two decades of experience in couples counseling. Instead of focusing on the primary relationship, partners are turning to others for fulfillment.

"Even if non-monogamy is consensual, it's still a distraction from dealing with each other," said Ruskin, author of "Dr. Karen's Marriage Manual."

"It all goes back to choice. Non-monogamy is choosing to be with someone else instead of being attentive to your spouse when the relationship is troubled."

One key will be whether there is still traction in society for the idea that self-denial (or at least self-discipline) can be essential to personal growth, moral accountability, and long-term fulfillment.  Polyamory, as I understand its portrayal, is attractive because monogamy is hard.  Exclusive and total self-giving to one person may be under strain in our modern practice of marriage, but it is at least still discernible in the concept.  For polyamory to take hold as a legitimate alternative, we will take another (large) step back from the idea that self-denial in the structuring of our intimate relationships is ever a worthwhile aspiration.

In our society's emerging acceptance of same-sex relationships, I don't think that self-denial as a legitimate and relevant aspiration was rejected categorically, but its specific implication -- celibacy for gays and lesbians -- was deemed too costly.  It's much more difficult for polyamorists to make the same claim about monogamy. 

This doesn't mean that the legal treatment of polaymory will be different -- i.e., will courts or legislatures just choose a Lawrence-like shrug of the shoulders when faced with normative questions regarding the structure of consensual intimate relationships? -- but I think the arguments for distinction are available, and I think the path toward social acceptance will be slower.

"Loving, committed multiple partner families"

The logic of the sexual revolution continues to play itself out in exactly the way defenders of "traditional" marriage and norms of sexual morality saw (and said) that it would. When I and many others noted that the abandonment of the idea of marriage as a conjugal union and its replacement with a conception of "marriage" as sexual-romantic companionship or domestic partnership would swiftly be folowed by the mainstreaming of polyamory and eventually demands for the legal recognition of "poly" parnterships and families, we were accused of "scare mongering" and making illicit "slippery slope" arguments. What we saw--and what anyone should easily have seen--is that the displacement of the conjugal conception of marriage left no ground of principle for supposing that marriage is the union of two and only two persons, as opposed to three or more ("throuples," "triads," "quadrads," etc.) in multiple partner sexual ensembles. With the sole exception of Jonathan Rauch, who at least tried to identify a principled moral basis for monogamy consistent with jettisoning the norm of sexual complementarity (though he failed), no supporter of redefining marriage, so far as I am aware, made a serious effort to address our challenge on this critical point. Today, fewer and fewer people on the liberal side of questions of marriage and sexual ethics are even pretending to have moral objections to polyamorous sexual relationships or their recognition. Increasingly, the pretense is not regarded as politically necessary. "Poly" groups no longer need to be pushed into the closet in order to depict redefining marriage as a "conservative" cause; "polys" are now even welcome to march in pride parades and the like. Polyamory is swiftly becoming one more hue in the multi-colored flag. We now even have the "conservative" argument for polyamory:  these are people in "loving, committed multi-partner relationships." They have jobs and homes and mortgages and kids--just like everybody else. Moral objections to their "identity" and the sexual expression of their love is condemned as mere "prejudice." We must, we are told, fight the "bigots" who are stigmatizing them and "harming their children." When you have a script that works, I guess you keep using it.

CNN is about as mainstream as you get, right?  Here are some passages from CNN's non-judgmental and, indeed, quite sympathetic treatment of polyamory and polyamorists:

It's not just a fling or a phase for them. It's an identity. They want to show that polyamory can be a viable alternative to monogamy, even for middle-class, suburban families with children, jobs and house notes.

"We're not trying to say that monogamy is bad," said Billy Holder, a 36-year-old carpenter who works at a university in Atlanta. "We're trying to promote the fact that everyone has a right to develop a relationship structure that works for them."

For the Holder-Mullins triad, polyamory is three adults living in the same home about 20 miles south of Atlanta. They share bills, housework and childcare for their 9-year-old daughter. They work at the same place, sharing carpooling duties so someone can see their daughter off to school each day.

Surrounded at the [Atlanta Pride] parade by drag queens from El Gato Negro nightclub, singers from a gospel choir and supporters of the Libertarian Party of Georgia, Billy Holder didn't stand out in his jeans, T-shirt and wide-brimmed, sun-shielding hat. That's sort of the point, he said: to demonstrate that polyamorists, or polys, are just like anybody else.

Read the whole story here:  http://www.cnn.com/2013/10/26/living/relationships-polyamory/

"The Resurrection Days"

Here is a wonderful story, by my friend John Nagy, in Notre Dame Magazine, about the wonderful, life-changing, kid-saving work being done through Notre Dame's ACE (Alliance for Catholic Education) program in Tucson (and elsewhere).

Comments and conversation

After some discussion and reflection, we at MOJ have decided to return to what was our practice for our first several years and to invite readers to correspond with the bloggers directly instead of using the "comments" box.  As appropriate, and only with permission, we can then incorporate readers' thoughts and comments into our posts, or simply pass on readers' contributions directly by reposting them.  We look forward to hearing from you! 

NDCEC Fall Conference: "Fearfully and Wonderfully Made"

As per usual, the Notre Dame Center for Ethics & Culture's annual Fall Conference is -- thanks to my friend Carter Snead and his team -- shaping up to be an outstanding event -- one of the best things to happen at Notre Dame each year.  This year, the conference takes up issues relating to "the body and human identity."  The line-up of speakers is outstanding -- Charles Taylor, Alasdair MacIntyre, John Finnis, and many others.  And, as a special bonus . . . a debate / discussion among Joseph Bottum (the author of, among many other things, that article you know about), Ryan Anderson, Sherif Girgis, and Charles Reid).  Sign up, come visit, say "hello", and Go Irish!

Realism and Idealism: On Law's Limits (Religious Freedom Edition)

Last week, I attended a very interesting conference about which I’ve written before concerning the “politics” of religious freedom, and the question of what, if anything, might come “after” religious freedom. The conference was particularly instructive for me because most of the participants were not law professors. They were primarily religious studies scholars, anthropologists, historians of religion, and doctoral students in these disciplines. The presence of doctoral students at various stages in their studies was especially welcome from my point of view, as it gave me an admittedly narrow sense of what some new voices in these fields are investigating and what is of interest to them. Any legal academic who thinks about religious freedom–and, more broadly, the relationship of government and law (domestic and international) to religious communities and traditions around the world–would profit from greater exposure to the concerns and debates of those disciplines that study particular religious phenomena. I am grateful to Winni Sullivan, Beth Shakman Hurd, Saba Mahmood, and Peter Danchin for inviting me.

The interdisciplinary quality of the conference provided a nice view of the convergences and divergences in these scholarly worlds. I did come away from the conference believing that there were more divergences than I had at first perceived. Here are some scattered impressions of the differences in aim, method, and perspective between legal scholars and the scholars at the conference. I also have a little reflection at the end of the post on some recent comments by Benjamin Berger, a fellow member of the law professor tribe whom I was delighted to meet at the conference and who offered some thoughtful and penetrating remarks.

1. First, a point of sheepishly self-referential comparison: generally when I attend legal academic conferences about law and religion, I find myself arguing for restraint on the part of the liberal state, for the limits of law, and for the importance of highly contextual analysis that does not flatten out conflict in ways that fundamentally misunderstand it. That is because, in the main (and, of course, with many important exceptions), law professors (in my area) subscribe to a fairly muscular liberal political theory of the state. I am therefore cast in the role of cautionary skeptic. By contrast, the scholarly community at the conference was highly critical of the liberal state–critical of it from a distinctive political perspective, to be sure, but critical of it nonetheless. It is probably a contrarian character weakness that had me very much feeling like the liberal state needed a friend. I couldn’t quite muster up the energy to be that friend but I do know more than a few law professors who would have eagerly taken up the mantle.
2. I was also struck by how prevalent critical methodology seemed to be. Deconstructing narratives and discourses of various kinds (whether of persecution, of power, of freedom, of religion, or otherwise) was a major concern. I have never attended a critical legal studies conference, in part because it is not a methodological inclination I share, and in part because, in law, CLS peaked and declined long before I entered the legal academy. But here critical method seemed to be broadly embraced.
3. Following from this point, one theme of the conference was that “religious freedom” is at best a useless conceptual category and at worst a malign instrument of state power that skews or deforms the natural, organic, local interactions of particular communities–a weapon with which the state can control those communities after a fashion that suits it and under the terms that it dictates. 

Continue reading

The scandal of libertas Ecclesiae

I have an additional, new paper on the liberty of the Church.  Here is the abstract:

 

This article was presented at a conference, and is part of a symposium, on "The Freedom of the Church in the Modern Era." The article argues that the liberty of the Church, libertas Ecclesiae, is not a mere metaphor, pace the views of some other contributions to the conference and symposium and of the mentality mostly prevailing over the last five hundred years. The argument is that the Church and her directly God-given rights are ontologically irreducible in a way that the rights of, say, the state of California or even of the United States are not. Based on a careful reading of, among other sources, the Second Vatican Council's Declaration on Religious Liberty, Dignitatis Humanae (1965), the article articulates and defends the Church's self-understanding as a divine institution possessed of supernatural authority that has rightful consequences for the ordering of society and polity. Catholic doctrine upholds a rich concept of individual freedom of conscience and defends a regime of broad toleration, but it does so respectful of the demands of the common goods, natural and supernatural, both of which the Church serves in the exercise of her liberty. The Church anticipates that her claims on her own behalf will be a scandal to the world. 

This article complements and, to a limited extent, overlaps the analysis in my recent article "Resisting the Grand Coalition in Favor of the Status Quo By Giving Full Scope to the Libertas Ecclesiae."