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.

Friday, January 24, 2014

Arthur Leff's Memo from The Devil

I recently re-read -- inspired, perhaps, by Pope Francis's refreshing willingness to speak on the subject -- Arthur Leff's review of Unger's Knowledge and Politics, which takes the form of a "memorandum" to Unger from The Devil.  You should, too.  

January 24, 2014 in Garnett, Rick | Permalink

A follow up to “Gay Marriages Confront Catholic School Rules”


I am grateful to Rick’s posting on the issue involving the employment status of Mr. Zmuda at Eastside Catholic in Seattle, WA. I agree with Rick that we will see more and more of these cases in which employees of Catholic institutions manifest their disagreement with fundamental Catholic principles not because of thoughts, or in the case of Eastside Catholic—sexual orientation, but because of actions. Here we can recall the truth that underpins one of the old legal maxims: actions speak louder than words.

Rick’s posting raises the issue of discrimination that some believe has been applied to Mr. Zmuda. But this issue pertaining to discrimination mandates further scrutiny. The question is not whether this man has been discriminated against but, rather, has he been discriminated against unjustly. For example, if Eastside Catholic discharged him on grounds that he did not have the qualifications he claimed on his resume that are required for the post he holds, the ensuing discrimination in terminating his employment would not be unjust but, rather, just. To put this matter more broadly, none of us discriminate against someone who claims to be an excellent barber, doctor, lawyer, plumber, carpenter, etc. if this person does not, in fact, have the training, other credentials necessary, and the competence to perform the services which are claimed to be within the competence of the person when in fact they are not.

When it comes to role modeling the virtuous life of one who wishes to be an example for young people, a Catholic educational institution would not be unjustly discriminating against someone if he or she claimed the virtues but did not, in fact, exercise them in his or her personal life. Thus, Catholic parishes and dioceses have not unjustly discriminated against financial stewards whose employments were terminated when it was discovered that these employees were embezzling funds from the parish or diocese.

I understand Rick’s point about certain privacy matters where a person may not wish his or her sexual orientation, income, tastes in music, preferences in literature, or views on the status of the unborn, and other topics becoming targets of public scrutiny. But marriage and the announcement about it is a public matter because it is a public institution as well as a matter of personal intimacy. When someone announces the fact that one is married (or supports abortion, or is “pro-choice”), this person voluntarily enters the public square and asserts his or her views about issues that concern the common good and the Church’s teachings. By making an announcement about one’s marriage, he or she says something about himself or herself in the context of a public institution. Regarding the institution of marriage, the Church has something to say about this because she has very clear views on this public institution.

The student who is quoted in the Times article mentioned by Rick and who contends that, “It was just shocking that the Catholic Church would turn its back on a teacher for something that didn’t affect his work performance” is wrong. As Rick notes, this is an important question because Mr. Zmuda’s acts do intersect his work. Why?

Mr. Zmuda is teaching by his example, and his teaching is contrary to the Church’s clear teaching on the subject of marriage. If the students do not hear the reasons for why this man was dismissed, might it be due to the fact that first principles of the Catholic faith are being minimized in their importance at Eastside Catholic? Might it be that these teachings and their justifications are being given short shrift at Eastside Catholic? If Eastside Catholic is not doing its job of teaching the faith or doing it well, it is a matter that has an impact on Mr. Zmuda and Eastside Catholic’s work performance because students are led to believe and accept something that they should not be led to believe and accept as true or as proper or as virtuous or as something only involving one’s private life.

As Rick also notes, there may be more of these incidents at both Catholic institutions of education but also other organizations which bear the moniker Catholic. If this is indeed what is to materialize, and I think Rick is correct on his surmise, then let me offer a bit of hope as to one course of action that might be pursued: the incident involving Mr. Zmuda should give all of us concerned about his dismissal the opportunity to better understand how the integrity of the Catholic faith intersects our public institutions including the law. This objective will also assist the faithful to understand more clearly our faith by comprehending what it is that the Church teaches and why she teaches what she does.


RJA sj

January 24, 2014 in Araujo, Robert | Permalink

Thursday, January 23, 2014

"Gay Marriages Confront Catholic School Rules"

This article in the New York Times covers an incident that MOJ veteran Eduardo Penalver has addressed at dotCommonweal (for example, here and here) and that is similar to cases arising around the country.  The Times story, it seems to me, could have done more to engage and present "the other side" and could have tested at least a little bit the premise of some of those quoted in the story that Pope Francis's election, statements, and views weigh against the decision of a Catholic school to dismiss a well liked administrator after he legally married another man.  But, the quality of the Times' coverage of religion- and Catholic-related stories is a matter for another day (and, probably, a different blog!).  

As a legal, constitutional, and political-theory matter, I guess I am committed to the view that a Catholic high school is and ought to be able to decide (a) that teachers and administrators must teach and form students in accord with the Church's proposals and teachings and (b) whether or not a particular teacher or administrator is failing to do so.  That said, cases like these are (as Eduardo has pointed out) tricky for several reasons:   Even those Catholic schools that are most committed to tethering hiring and firing decisions to their Catholic mission and character do not, generally speaking, investigate employees' private lives to be sure they are entirely consistent with the Church's moral and other teachings.  (Phew!).  What's more, failures to live in accord with the Church's teachings regarding sexuality are failures, but they are not necessarily, as a category, more "serious" or "grave" failings than the failure (of so many of us!) to live in accord with the Church's teachings on charity and humility, and yet we don't hear about many Catholic school teachers being fired for exhibiting insufficient joy.  And, my sense is that the Church and Catholic schools do oppose unjust discrimination against and demeaning treatment of persons because of their sexual orientation.  

But . . . what is it reasonable to expect -- given that the Church teaches what it teaches about sexuality and marriage -- a Catholic school that holds itself out as having a Catholic mission that includes formation in the faith to do when a (popular and otherwise entirely competent) teacher or administrator, say, "goes public" about her support for abortion rights . . . or enters (again, publicly) into a legally valid same-sex marriage?  One student is quoted in the Times piece as saying “It was just shocking that the Catholic Church would turn its back on a teacher for something that didn’t affect his work performance," but . . . isn't that the question?  That is, isn't the question "what counts as the performance of the position as the vice-principal of a Catholic high school (and so what counts as affecting that performance)"?

The students who are quoted in the piece speak movingly about compassion and their opposition to discrimination.  The piece states that some people support the decision to dismiss Mr. Zmuda, but we do not "hear" their reasons.  (I assume it is not because they oppose compassion or support discrimination.)  In any event, we will, I expect, see more and more of these cases and, I expect, we will see -- to say nothing of litigation -- similar disagreements between Catholic schools' decisionmakers, on the one hand, and students and alumni, on the other.  These disagreements will have to involve conversations about, again, what is the mission of a Catholic school and what is (and is not) involved in the education and formation of students at these schools. 

UPDATE:  Michael Sean Winters responded to my post here, and elaborated on the issue.

January 23, 2014 in Garnett, Rick | Permalink

The "right" that dare not speak its name

Princeton alum Matthew Schmitz, Deputy Editor of the indispensable First Things magazine and one of my favorite people, offers a critical perspective (http://www.firstthings.com/blogs/firstthoughts/2014/01/eight-lies-in-president-obamas-roe...-statement) on President Obama's message of support for Roe v. Wade on its 41st anniversary. What I find most remarkable--and, in an odd way, most encouraging--about this message of support for abortion by the most extreme pro-abortion politician in America (Want proof? http://www.thepublicdiscourse.com/2008/10/133/) is that it does not include the word "abortion."  Anywhere. The word isn't mentioned. Not once. Even in defending the taking of human life in utero, the President cannot bring himself to call it by its name. This is, I suspect, not a matter of squeamishness, much less moral qualms, on Mr. Obama's part. He was, is, and I fear will continue to be the truest of true believers in the abortion license. Rather, it reflects a cultural and political reality. A substantial majority of the American people have grave moral qualms about the deliberate killing of children in the womb. Most people oppose most abortions that are actually performed, that is, elective (or "direct") abortions, abortions whose precise object is to get the unborn baby dead because a woman, or husband, or boyfriend, or parent, or employer thinks, for whatever reason, that would be best. Hence, the euphemisms ("reproductive health care," "privacy," etc.) that Matt Schmitz points out in the President's statement, and its Orwellian identification of the cause of abortion with building "safe communities for children" (indeed, "all" children) and with giving "everyone" the "freedom and opportunity" they deserve. When a politician feels he cannot call the thing he is defending by its name, it is evidence that the cause he serves is in big trouble. The moral momentum is against him. The cause has lost, if it ever possessed, the moral high ground. Of course, this does not mean the inevitable defeat of the abortion license. There is no such thing as "inevitable" in the domain of social issues. The abortion license will fall only if those of us who uphold the right to life of each and every member of the human family are willing to work and pray and strategize and organize and sacrifice and suffer for the sake of our weakest and most vulnerable brothers and sisters. But the President's unwillingness to say the word "abortion" should give heart to those who have been struggling (and every year on this date marching) for more than forty years against the bloody reality that, as far as Barack Obama is concerned, dare not speak its name.

January 23, 2014 | Permalink

Wednesday, January 22, 2014

Paroline v. United States

Today I had the singular experience of attending oral argument at the Supreme Court. The case was Paroline v. United States. For those unfamiliar with this matter, Paroline addresses the ability of a child pornography victim ("Amy") to obtain restitution from a child pornography possessor consistent with 18 U.S.C. 2259. As was demonstrated by the oral argument, the case has both complex legal issues (outlined here in a brief article co-authored by myself and the trial attorney for Amy, James Marsh) as well as important emotional and justice issues. Although the case poses many important legal questions worthy of discussion, for purposes of MOJ, I will focus on some reflections most relevant to Catholic legal thinking.

When one's legal scholarship focuses on the exploitation of vulnerable people, particularly women and children, the days when one feels positive about the direction of law and policy are, frankly, few and far between. Our new MOJ contributor, Cecelia Klingele recently discussed her observation that those convicted of crime are among those "unseen" in our society. I would add to that list of unseen – and often unheard in courts of law- crime victims. As I point out to my students, the word "victim" does not appear in the Constitution; she is afforded no real procedural protections; no one speaks exclusively for her; and often she is involved in the litigation through no action of her own, at times being further victimized by the process. Indeed Paroline demonstrates this quite poignantly as it is a case wherein the United States – the entity which prosecuted defendant Paroline - has taken a position at odds with (although not completely opposed to) Amy's effort to receive restitution.

However, I felt today represented a good day for victims – a day in which Pope Francis' call for us to "care for the vulnerable of the earth" was heard a little more clearly (Evangelii Gaudium, para. 209). This is not so much because of any expected outcome of the case. Indeed, I do not know where the Justices will come out on the very difficult questions at issue. Rather, two aspects of the day offer some hope that we are closer to the Pope's vision of "restoring the dignity of human life" to all people. (Evangelii Gaudium, para. 75)

The first sign of encouragement was the procedural handling of the case. This case began with one civil attorney answering the call to assist "Amy." Amy is a victim of horrible abuse whose assaults have been circulated extensively in child pornography networks. One attorney, James Marsh, took up her cause several years ago and has worked tirelessly to assist Amy in moving forward with her life. He, Paul Cassell (who argued the case before the Court), Carol Hepburn (who has represented several other victims) are examples for us all on how we as attorneys can utilize our skills to truly help the most vulnerable among us.

Secondly, I saw some hope from the other side of the bench. I previously attended the argument for another child pornography case, United States v. Williams. During that argument I was rather dismayed by some of the questions from the Justices that seemed to indicate that they, like many in the legal community and media, did not understand the victimization associated with being a victim of child pornography. This victimization is unique in that, unlike many other crimes, child pornography is a "crime of perpetuity." That is to say that a victim of child pornography never ceases being victimized. As long as the images exist, she lives with the knowledge that others are observing her assault for their own pleasure and entertainment. She must wonder whether every person she meets, every job interviewer, every neighbor, every teacher has viewed her image. It is a crime like no other. For the Williams case, the Justices did not seem to fully understand that concept. Today, all the Justices' questions reflected a clearer understanding of that reality. I was glad to see that the harm suffered by these men and women is being understood at a greater level.

While this may seem a minor point, as pornography becomes more mainstream in our society, and judges increasingly are affording child pornography offenders lesser sentences, one can begin to question if we will ever reverse the trend of turning our children into commodities. Today reminded me that there is hope, however incremental, that we are moving closer to valuing "the life and dignity of all human persons."

January 22, 2014 in Leary, Mary G. | Permalink

Roe at 41

From John Hart Ely, "The Wages of Crying Wolf" (here):

It is . . . a very bad decision.  Not because it will perceptibly weaken the Court—it won't; and not because it conflicts with either my idea of progress or what the evidence suggests is society's —it doesn't. It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.

I think Ely's "it won't" and "it doesn't" miss the mark, and his "because" in the last sentence is incomplete.  That said, the critique (it seems to me) remains devastating.

January 22, 2014 in Garnett, Rick | Permalink

A review of "The Mighty and the Almighty"

Prof. Nicholas Wolterstorff's new book The Mighty and the Almighty:  An Essay in Political Theology, is a great read.  And, here is a helpful and insightful review, by Kristine Irwin (Biola), from Notre Dame Philosophical Reviews.  Here's a bit:

Wolterstorff's conclusion is that "the state is to grant institutional autonomy to the church and to all other counterpart religious institutions, and it is to grant religious freedom to all citizens" (131). Once again, we have an argument "from above" -- that the very nature of the church requires this conception of the state -- and "from below" -- one that appeals to principles of justice and natural rights.[4] What this means is that Christians have a vested interest in advocating for the moral rights of all religious institutions: "I may think your religion is wrong; but I will defend your civil right to be free to practice it" (144). Indeed, Wolterstorff asserts that all social "institutions with authority structures have moral rights against the state" (162).

This is perhaps the most interesting, and most puzzling, aspect of Wolterstorff's excellent book. Why think that any social institution with an authority structure places "normative limits . . . on the authority of the state" (171)? Wolterstorff's appeal is, as usual, to natural rights: we have a natural right to form social entities to accomplish goals without consulting the state; therefore, "the authority inherent within the entities that we establish then places limits on the authority of the state" (171). So it is now not only the rights of individuals, or the rights of religious institutions, but the rights of any institution with a governance-authority structure that limits the authority of the state. This goes a good way towards the increasingly popular argument that there is nothing special about religion, as against other claims of conscience: either all claims of conscience ought to be tolerated, or none ought to be tolerated.[5] The structure of Wolterstorff's argument -- and particularly, the sufficiency of the "argument from below" -- leads me to believe that he would accept this implication. A further question emerges, though: Do Christians now have a vested interest in advocating for the moral rights of all claims of conscience that arise from all institutions with a governance-authority structure? This seems a bridge too far.

January 22, 2014 in Garnett, Rick | Permalink

"Abortion and Human Equality"

Today, of course, is the anniversary of Roe v. Wade, and I want to thank and salute the many thousands of people who are taking part in the March for Life in Washington, D.C. and in similar events across the country.  Their witness is inspiring, as is their dedication.

Here is an interview with Prof. Francis Beckwith -- a prolific scholar whose work is probably familiar to most MOJ readers called "Abortion and Human Equality."  Here is a bit:

We should always bring the conversation back to the only really important question: Who and what are we? If you can’t answer that question, you can’t answer the question of whether abortion is unjustified homicide or not. As I have already noted, the popular arguments for abortion choice all assume that the unborn child is not one of us. For if he were one of us — as we believe of the two-year-old and the adolescent — these popular arguments would never work. Can you imagine if someone suggested that the best way to reduce poverty would be to require that all poor children under the age of five be exterminated? Yet, many people have argued that abortion is a way to reduce the burden of poverty. Consequently, without first assuming that the unborn child is not a moral subject (and thus begging the question), this sort of argument would not even get off the ground. This is why even some very pressing issues, ones for which the pro-lifer ought to provide answers, can’t really be addressed until one answers that first question.

January 22, 2014 in Garnett, Rick | Permalink

More from Brad Gregory on his "The Unintended Reformation"

My friend and colleague Brad Gregory has an essay up at The Immanent Frame called "Genre, Method, and Assumptions", in which in which he responds to several of the reviews-to-date of his (excellent) book, "The Unintended Reformation."  Here's a (very small) bit:

The accusation . . . that, in the book, I offer no arguments in support of the truth of Catholicism is perfectly correct—because The Unintended Reformation is not an argument for the truth of Catholicism. I think the book’s historical analysis could be used in a manner consistent with Catholic truth claims. But a work of positive apologetics would require a great deal of additional labor, none of which is undertaken in the book. I am not, nor do I aspire to be, a theologian. Yet theology is not only part of history—it remains part of contemporary intellectual life despite its banishment from secularized research universities. Thus, to ignore it is irresponsible for anyone who wants to understand the fullness of contemporary intellectual life, including the difference theology might make to it. I suggest that anyone who thinks theology does not belong should read, for starters, David Bentley Hart’s most recent book, The Experience of God: Being, Consciousness, Bliss. The historically argued takeaway from The Unintended Reformation, with respect to Catholicism, is that it avoids the sorts of open-ended pluralism characteristic of Protestantism and modern philosophy with respect to the life questions, because Catholicism relies not on Thomism or indeed any particular philosophical or theological view per se, but on an ostensibly authoritative tradition about God’s actions in history. Again, this argument neither is nor aspires to be a demonstration of the truth of Catholicism; indeed, it holds even if all religion is illusory and God a fiction. Because Western modernity is premised on the authority of secular reason exercised by the autonomous self, it is, unsurprisingly, an unwelcome argument for those committed to such views of reason and the self. But it simply is not a positive argument for the truth of Catholicism. It is restricted to a claim about Catholicism’s intellectual viability, which is something that everyone who understands the issues involved can and should acknowledge, regardless of their own beliefs, in the same way that everyone can and should acknowledge the same for Judaism and Islam.

Like the man says, "Highly Recommended."

January 22, 2014 in Garnett, Rick | Permalink

Wolterstorff's "The Mighty and the Almighty": The Dual Authorities Thesis

This is the second in a series of posts on Professor Nicholas Wolterstorff's book, The Mighty and the Almighty: An Essay in Political Theology. In the first post, I described what might be meant, and what Wolterstorff means, by "political theology," and Wolterstorff's project to arrive at a distinctly Christian political theology. Here I want to lay out the core thesis of that political theology.

That thesis can be summed up in the phrase, "dual authorities." Christians, Wolterstorff writes, are subject to the dual authority of Christ and the civil power. And these dual authorities mediate one another.

These are deep waters and Wolterstorff explains and helps the reader by considering an ancient example--that of Polycarp, Bishop of Smyrna, who was martyred in 156 A.D.  Polycarp is sought out, arrested, and haled into a stadium filled with people where he is urged by the Roman proconsul to renounce Christ and swear by the genius of Caesar in order to save himself from execution. Polycarp refuses in these words: "For eighty and six years have I been his servant, and he has done me no wrong; how can I blaspheme my King, who has saved me?" Later in the exchange, Polycarp tells the proconsul: "[W]e [Christians] have been taught to render honour, as is meet, if it hurts us not, to princes and authorities appointed by God."

Wolterstorff's thesis depends on a close reading and interpretation of these statements. Unlike those who resist government's coercive power as having no authority at all over them, "Polycarp's resistance was different":

He did not declare that obeying his own interior conscience had higher priority  for him than obeying the proconsul. He did not declare that loyalty to his group had higher priority for him than whatever loyalty he might feel toward Caesar, the proconsul, and the people in the stadium....[T]he explicit ground of his resistance was heteronomous. He had a sovereign distinct from Caesar, namely, Christ. The proconsul was demanding that he renounce that sovereign. That he would not do, for his sovereign had saved him. (13)

But Polycarp is not implying that the civil power is not his sovereign, or that Christ is his sovereign instead of the civil power. "No," says Wolterstorff, "he was a citizen of Smyrna; and the proconsul had political jurisdiction over Smyrna. Polycarp was under dual authority. In his person, the authority of Christ and the authority of the emperor intersected. Given the command of Caesar's proconsul to renounce Christ, these two authorities had now collided." (14-15)

What makes the conflict even more complex and more difficult is the existence of other conflicting dualities beneath the surface. For one, Polycarp believed that the princes of the civil authority are appointed by God; yet now those self-same civil authorities demanded that he renounce God (that is, Christ). And for another, there was an institutional conflict at work: Polycarp was a bishop of the church, exercising Christ's authority over the church. His exchange with the proconsul was not merely a personal conflict but represented a collision of institutional authorities. He was one person with dual membership in two authority structures that intersected in him. The key to Wolterstorff's political theology is in understanding the nature of these dual authorities and the depth of their conflicts--dualities which affect everyone (political authority mediating divine authority and yet also being limited and judged by divine authority) and Christians in particular (being citizens of some state and under its authority, while that state is always under God's authority; being members of the church and under the authority of Christ, who in turn is divine).

Finally, it is interesting to read Wolterstorff's comments about the alien quality of all of this to American sensibilities, in which the language of religious liberty has the effect of effacing the problem of dual authority:

Some will find it strange to think of the church in terms of authority. They think of the church as a voluntary organization devoted to sponsoring religious activities. A group of us find ourselves interested in religion, in particular the Christian religion; so we get together and set up an organization for holding worship services and for engaging in a bit of social action. We put in place some organizational structure, call a minister, place ads in the local press, welcome neighbors. We are off and running.

Everything about religion in America conspires to make one think of the church along these lines. Christ as king and the church as an authority structure are nowhere in view. The local government may decide to clamp down on our group for one reason or another--it doesn't like the architectural plans, doesn't like the fact that wine is served to minors, doesn't like the traffic jams. We may resist. But if we do, our resistance will be in the name of religious freedom. We will not declare that Christ is our king and that loyalty to our king requires that we not concede to the government's demands. No Polycarps among us. (16-17)

January 22, 2014 in DeGirolami, Marc | Permalink