Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, December 31, 2013

End the silence on persecution of Christians

Katrina Lantos Swett and I, in our roles as Vice Chairwoman and Chairman respectively of the U.S. Commission on International Religious Freedom, have an op ed piece in today's Philadelphia Inquirer calling attention to the persecution of Christians in the Middle East and beyond. This topic has not been given nearly the amount of attention it deserves in the mainstream media. In part, this is because it disrupts a familiar, and, in some circles, cherished, narrative in which Christians are always the oppressors and never the oppressed. But that doesn't explain why American Christians themselves have been so quiet about the persecution of their fellow believers in so many places across the globe--from China to Egypt and from Nigeria to Cuba. Israeli scholar (and my former student) Yoram Hazony, among others, has expressed puzzlement at the silence of Christians about the suffering of fellow Christians. I confess that I myself am at something of a loss to explain it. In part, I suppose, it is simply ignorance. In part, though, it reflects a concern not to be perceived as engaging in "special pleading" for co-religionists. That concern is unreasonable and should be laid aside. It is time for American Christians--and all Americans--to demand that our own government live up to its legal obligations under the International Religious Freedom Act and give priority in our diplomatic and foreign policy to promoting and defending religious freedom for people of all faiths--including Christians.

December 31, 2013 | Permalink

Monday, December 30, 2013

Wolterstorff's "The Mighty and the Almighty": What is Political Theology?

For an upcoming conference, I am reading Nicholas Wolterstorff's excellent and eminently readable book, The Mighty and the Almighty The Mighty and the Almighty: An Essay in Political Theology. In some future posts, I will get into his argument concerning the dual authority of the church and the state, as well as some important counterpoints to his view (he takes Augustine to be one such counterpoint, and this will also allow me to resume my Augustinian posting).

For this first post, though, I thought to explain a little bit about the subject itself (many of our readers will know already, but a sketch may still be helpful). Political theology may be misinterpreted by those who are imbued with the spirit of post-20th-century American constitutionalism to be tantamount to ecclesiastical or clerical rule (or, perhaps, rule by theologians). But it is actually an account of the relationship of divine and human authority in matters of politics and governance. As Wolterstorff puts it: "[A]t the core of traditional political theology was the question of how God's authority is related to the authority of the state." (2) Political theology treats the question, for example, of how a person or a people can reconcile these different authorities and demands in their own lives. And it is Wolterstorff's aim to articulate a distinctly Christian political theology in the book.

Even so, putting the problem of political theology in this fashion may sound unusual to modern ears. Even if God's authority was once a political problem, have we not gotten past all of that? Mark Lilla, whom Wolterstorff cites early in the book, recently explained in his intellectual history of the subject that the God of political theology is actually a "stillborn God"--a God that ought not enter into the political calculations of modernity. Though I wonder whether Wolterstorff is exactly right that Lilla was offering a requiem for political theology (more like an admonition to be mindful of the dangerous endurance of political theology), Wolterstorff presents two cogent reasons for the salience of political theology today.

First, believers in God have reason to attend to political theology because the relationship of God's law to the civil law is a perennial problem for them. And, indeed, there is a long Christian tradition stretching for more than 1000 years (from roughly 500 to 1600) that offered a compelling answer to the problem of political theology--what Wolterstorff calls the "two rules doctrine," which he contests (more on this in future posts).

Second, political theology is not dead; rather, says Wolterstorff, it has been "flying under the radar." (3) Wolterstorff's primary focus here is on some of the writing of Augustine, Calvin, and John Howard Yoder (a twentieth century Christian ethicist), but I might put the point more broadly. Many accounts of political thought have buried within them a collection of assumptions--often not explicitly laid out--of the relationship between the state's power and other powers (perhaps greater powers) that lie outside the state. Attending directly to the ways in which a political system conceives of the authority and power of different realms (including its own) helps to excavate and shine a light on its deepest commitments.

December 30, 2013 in DeGirolami, Marc | Permalink

Sunday, December 29, 2013

Eve Tushnet and the Holy Family

Although Eve Tushnet's "Coming out Christian: How faithful homosexuals are transforming our churches" (The American Conservative Jan./Feb. 2014, subscription required) was not written with the Feast of the Holy Family in mind (at least to my knowledge), it is a fitting reflection on this feast.

She writes that "Gay Christians are finding 'chosen families' in many different ways," including living in "intentional communities" and embracing the "nearly forgotten Christian traditions in which friendship is treated as a form of kinship that carried obligations of care."

She also argues that the presence of celibate gay Christians in Christian communities those communities embrace the Cross: "The sentimental, Disney view of marriage was always wrong.  Marriage changes our loneliness but rarely cures it. ... But for a long time American Christianity has sought to fix loneliness and suffering rather than accepting them as part of the core of Christian experience. ... Because marriage, the standard solution to the problem of loneliness is typically unavialable to gay Christians, we've had to confront loneliness earlier and more publicly than many of our peers." 

She ends with: Jesus - unmarried, marginalized, misunderstood, a son and a friend but not a father or spouse - is the preeminent model for gay Chrisitans. In this, as in so many things, we ar just like every body else."

December 29, 2013 in Scaperlanda, Mike | Permalink

St Thomas Becket

St Thomas Becket

December 29, 2013 | Permalink

Tuesday, December 24, 2013

Reading the Christmas letters of Jean Bethke Elshtain

John Carlson has written a really nice reflection on the Christmas letters of Jean Bethke Elshtain.  Take a look.

December 24, 2013 in Garnett, Rick | Permalink

Sunday, December 22, 2013

St. Joseph, Protector of the Church and of the Little Sisters of the Poor, Pray for Us

Saint Joseph was the focus of this morning’s homily at our parish. I experienced some homiletic drift, but of a good kind. Our deacon spoke of St. Joseph’s quiet strength, his integrity, and his fidelity. His discussion of these characteristics brought me to thinking about and praying for the Little Sisters of the Poor, who model these characteristics every day. 

Following their foundress St. Jeanne Jugan, the Little Sisters of the Poor have a special devotion to St. Joseph. The congregation’s “Spirituality” webpage explains: “Jeanne’s devotion to St. Joseph was an extension of her trusting abandonment to God. In him she found a father in the likeness of our heavenly Father, whose Providence watches over the little ones. She turned to him to obtain bread for the poor and chose him as Protector of our Congregation.” 

I’m sure that the Sisters have asked St. Joseph to pray for them over the past several months as they have attempted to deal with the Administration’s contraceptives mandate in a way that allows them to act with quiet strength, integrity, and fidelity. Each of their homes for the elderly poor becomes subject to massive daily fines if they are not in compliance or have not received injunctive relief by January 1, 2014. 

This weekend is a particularly anxious time for the Sisters, as the federal district court is likely to rule soon on their request for a preliminary injunction. An order issued this past Wednesday stated that “[t]he parties are advised that the Court will issue a ruling on the pending motions shortly.” As one of the lawyers for the Little Sisters in this case, albeit one playing a much smaller role than the lawyers on the case from the Becket Fund and Locke Lord, I share the Sisters’ anxiety even as I believe their claims for relief to be strong. 

I have not blogged very much about the case, as the legal filings speak for themselves. But I think it appropriate here and now to express my regret that the Obama Administration’s refusal to exempt the Little Sisters and others similarly situated has injected not only anxiety, but also disappointment, into this Advent season of hopeful expectation. The cause for anxiety is obvious. The disappointment stems from the unreasonableness of the Administration’s position (although the reason that this is disappointing is admittedly not so obvious unless one gets into the details of the legal arguments). 

Before explaining further, I should add that I am not disappointed simply to be on the other side of the Administration in a case. I have often participated in and thought carefully about hard cases where the legal arguments on both sides have much to recommend them. But this is not one of those cases. And the Administration’s position has so little to recommend it that it is difficult to explain on any other ground than that the Administration seeks to prove that it can force its will on the Little Sisters and others similarly situated. Somewhat amazingly, the Administration says that forcing the Little Sisters to comply will have no effect on advancing the Administration’s objectives related to contraceptives coverage, but the Administration nevertheless refuse to exempt them. Why not?

Like many other religious organizations, the Little Sisters self-insure and offer benefits through a plan administered by a third-party administrator. As a non-exempt religious nonprofit, the Administration’s final rule on the contraceptives mandate allows the Little Sisters to satisfy their obligation under the contraceptives mandate by signing a form that designates their plan administrator as responsible for providing the contraceptives coverage that the Little Sisters themselves object to providing. Among the problems with this arrangement is that the Little Sisters have a plan administrator, Christian Brothers Services, that also objects to providing this coverage. 

The Administration sees no difficulty because the governmental enforcement mechanisms for ensuring administrators’ compliance with the contraceptives mandate are supplied by ERISA, and the Little Sisters’ plan is a “church plan” that is not subject to ERISA. The Administration says that the Little Sisters should just sign the designation form to avoid the fines that they would otherwise have to pay. This is no burden on the Sisters, says the Administration, because the designation form is legally meaningless. The Administration further asserts that the Little Sisters lack standing to object to this forced choice between participation in the scheme and massive fines. 

Two district court rulings (from the Eastern District of New York and the Western District of Oklahoma) that have addressed the Administration’s church plan arguments thus far have ruled against the Administration using some pretty strong language. Thus far, however, the Administration has pressed on seemingly undaunted.

Catholics have many titles that we use when asking various saints to pray for us. One of St. Joseph’s traditional titles is Protector of the Church. It is appropriate today for us to pray: St. Joseph, Protector of the Church and of the Little Sisters of the Poor, pray for us.

December 22, 2013 | Permalink

Saturday, December 21, 2013

A disappointing ruling against Notre Dame

Judge Philip Simon has issued an opinion denying the University of Notre Dame's motion for a preliminary injunction against enforcement of the so-called contraception-coverage mandate.  Here is the opinion: Download Notre Dame order.

In my view, the opinion -- which has an impatient, and at times even snarky tone -- is unsatisfying, in part because it does not engage with appropriately closeness Notre Dame's claims and characterizations regarding the nature of the "burden" that the mandate would impose on its religious exercise, character, and mission.  But, read the whole thing for yourselves, dear readers!  And, join me in hoping for better work by the Seventh Circuit. 

December 21, 2013 in Garnett, Rick | Permalink

Friday, December 20, 2013

Pope Francis . . . and Paul Ryan?

McKay Coppins on Buzzfeed writes an article that begins with:  "How a backstage prayer in Cleveland and a new leader in the Vatican set the budget-slashing congressman on a mission to help the poor. 'My bet is that he’s on Pope Francis’ team.'”

Here’s a sample:

But those closest to him say Ryan’s new mission is the result of a genuine spiritual epiphany — sparked, in part, by the prayer in Cleveland [at a meeting with advocates for the poor], and sustained by the emergence of a new pope who has lit the world on fire with bold indictments of the “culture of prosperity” and a challenge to reach out the weak and disadvantaged.

“What I love about the pope is he is triggering the exact kind of dialogue we ought to be having,” Ryan told the Milwaukee Journal-Sentinel this week, adding, “People need to get involved in their communities to make a difference, to fix problems soul to soul.”

December 20, 2013 in Sisk, Greg | Permalink

Thursday, December 19, 2013

A Seasonal Meditation on Catholic Legal Theory


After an absence from this site of two months, I return today with this brief seasonal meditation. For those who wonder where I have been, it can be said that issues of my health necessitating hospitalization for a time and then time-consuming follow-up have been largely responsible for my absence. But now, here I am. May it also be said that I come to do God’s will.

During my time in the hospital, I had the occasion to think and pray about many things, e.g., the meaning of human life and human endeavors—including my own. A subset of this topic intersects the raison d’être of our website, the Mirror of Justice, viz. the development of Catholic legal theory. Since my hospital discharge, I have reread the contributions of many of my friends who offer their thoughts concerning the essence of our common project on these pages in addition to some of my own. A resolution I adopted in the hospital was this: I must return to the matter of investigating what is Catholic legal theory.

But my resolution and current reflection are influenced by the present liturgical season we celebrate in Christendom, i.e., Advent and preparation for the coming of Christ, who came as God and man to save us from our sins. Does this Christian perspective on the state of humanity have something to do with law? I think it does.

While not all sins are something with which the law is or should be concerned (e.g., did someone snitch a Christmas cookie just as they came out of the oven knowing that the cookie chef has stipulated that no cookie is to be eaten until its proper time?), some are. By sin, I mean recognition by the human person that he or she ought to do something, but intentionally does not; in the alternative, the person should avoid something, but of his or her own volition, plunges into the thing’s execution. Surely the nature of some sins intersects the nature of grave crimes and civil offenses with which the law is concerned. In making this assertion I answer the question: does the law address matters of sin? It certainly can, but the manner in which it does is a subject that falls within the scope of legal theory including that which identifies itself as Catholic.

In addressing how the law should respond to these crimes and civil offenses, some legal theories take a pragmatic approach. Others may follow a utilitarian passage. Still others may be influenced by considering the consequences of what is done and what is avoided. But Catholic legal theory, if it is true to its moniker “Catholic,” must consider and explore the moral dimension—this is the natural moral law at work, an essential component of Catholic thinking. Authentic Catholic legal theory must also rely upon objective reasoning that takes the thinker beyond his or her comfort zones—the subjective, if you will. This type of reasoning relies on the intelligence of the human person to comprehend the world, society, and all their intelligible realities that must be objectively, not subjectively, understood.

But that is not all that there is to the motivating force underlying Catholic legal theory. Surely the consideration of the common good—the good of each in the context of the good of all, the suum cuique—is another vital consideration. All these factors are part of the assembly of the essence of Catholic legal theory. They are not the only considerations, but they are critical ones (others would include the concepts of solidarity and subsidiarity). When these components come together, they should necessarily lead to the avoidance of evil and the doing of that which is good, if I may borrow from the Angelic Doctor, Thomas Aquinas.

Much more needs to be said about what I have presented here, but this is a weblog post rather than a treatise. Perhaps one day, we may have a collection of essays that can be published in a volume that is entitled along the lines of: Perspectives on Catholic Legal Theory. But let me suggest one final thought for today, and that is this: these elements of Catholic legal theory which I have cursorily presented here in this post have much to offer society in general, particularly in avoiding the traps of the manifestations of totalitarian democracy—as foretold by people like Jacob Talmon and Christopher Dawson—which seem to be extant in the political and legal fabric of the present day. If one doubts this thesis, we need to re-read the recent contributions of many of my friends here at the Mirror of Justice. But these elements of Catholic legal theory also have something to do with Christ who came to save us from our sins, especially those sins that are also of concern to the law which is and must be a servant, not the master, of the human family and each of its members.

In short, Catholic legal theory has something to offer all persons and their societies that concern salvation in this world. But Catholic legal theory also has something to offer those persons who are equally concerned about the world that is to come.


RJA sj

December 19, 2013 in Araujo, Robert | Permalink

Wednesday, December 18, 2013

Frank Wolf: American Hero

I don’t often find myself shouting “amen” to the opinions of the editorial board of the Washington Post.  And my list of heroes is scarcely crammed with politicians.  But today a hero of mine who happens to be a politician was praised in a Washington Post editorial.  That hero is Congressman Frank Wolf who yesterday announced that he will not seek re-election to the United States House of Representatives.  Mr. Wolf has served the people of his congressional district in Virginia for more than thirty-two years.

Why is he a hero?

The editorial board of the Post tells the story pretty well.  They note that he has been a powerful voice in defense of the sanctity of human life in all stages and conditions and marriage as the conjugal union of husband and wife, though they do not praise him for that as I would.  They praise him for his remarkable work in defense of international religious freedom and other human rights.  They rightly applaud his “his unstinting advocacy for human rights and oppressed minorities in dangerous and unlovely corners of the world that most members of Congress were content to ignore.”  They recall that

“[i]n service of those principles, Mr. Wolf slipped into Tibet amid a group of trekkers to investigate the Chinese government’s abuse of Buddhist monks, nuns and others. He led the first congressional delegation to Darfur and returned repeatedly to Sudan to call attention to the mass killing there. His visits to Iraq, Afghanistan, Chechnya and other hot spots reflected his zeal for justice and his conviction that the United States should be a champion for decency and democracy."

Here is a link to the editorial.


In announcing his retirement, Mr. Wolf said:

"As a follower of Jesus, I am called to work for justice and reconciliation, and to be an advocate for those who cannot speak for themselves.  I plan to focus my future work on human rights and religious freedom – both domestic and international – as well as matters of the culture and the American family.  My passion for these issues has been influenced by the examples of President Ronald Reagan, former Congressmen Jack Kemp and Tony Hall, Chuck Colson, and the life of 18-19th century Member of Parliament William Wilberforce."

If the oppressed people of China, North Korea, Sudan, South Asia, and other places got to choose an American politician to receive the Nobel Peace Prize, I have no doubt that their choice would be Frank Wolf—in a heartbeat.  Sadly, the actual Nobel committee will no doubt overlook his work and witness for justice.  Here in the U.S., however, Democrats and Republicans should join in petitioning the president to honor Mr. Wolf with the Presidential Medal of Freedom.

December 18, 2013 | Permalink | Comments (0)