Sunday, February 16, 2014
Over at the liberal Catholic Commonweal blog, Cathleen Kaveny, who once labeled me and her then-Notre Dame Law School colleague Gerard Bradley “Rambo Cathlolics,” goes after me again in a post under the charmingly intolerant title “A Catholic Mullah, Now?”
My old friend is unhappy with a little thought experiment I proposed here at Mirror of Justice and at First Things. As she mischaracterizes it, I defended the right of a “hypothetical Muslim school to fire a hypothetical Muslim teacher who is caught drinking, carousing, and publicly flouting Muslim norms, both on campus and off.” In my example, the “teacher” was not a teacher but an administrator, and he wasn’t “caught” doing anything because he didn’t try to hide anything he did—like drinking and buying an interest in a strip club. But lay that all aside; it’s not important.
The important thing is that Professor Kaveny wants to give me a lecture. Then she’s got a proposal for me. Before launching into her lecture, however, she can’t resist a bit of condescending sarcasm: “God bless, Robbie [sic]. The Muslim community in the United States must be so grateful for his attention and advice.”
But let’s lay the insult aside for now, too, and examine the lecture:
“Within the Catholic framework, the decision whether or not to fire a particular teacher is itself a decision subject to moral analysis. It conveys a normative message to the students. It shapes the community and it expresses the community's values. Its moral message is multifaceted; it is not reducible to a simple Facebook "like" or "not like" of the teacher's underlying offence, understood as an abstract moral proposition.”
I suppose this would be illuminating were it not for the fact that everyone already knows: (1) that the decision whether or not to fire a particular teacher is itself a decision subject to moral analysis; (2) that it conveys a normative message to the students; (3) that it shapes the community and expresses its values; (4) that its moral message is multifaceted; and (5) that it is not reducible to a simple Facebook “like” or “not like.”
But please don’t tell Professor Kaveny. For some reason it’s important to her to think that the world—or at least the “Catholic mullahs”—needs her instruction on these points.
Now let’s move on to her proposal. It has four parts. Let’s take them one by one.
1. “Let’s let the Muslim community take care of their own internal decision-making on these matters. Let's focus on the community to which we actually claim to belong—the Catholic community.”
Of course, the point of my little thought experiment was not to interfere in the internal decision-making of the Muslim community. The issue it explores faces every tradition of faith. I was offering a hypothetical case, as law professors and philosophers are wont to do, to identify and test principles. Kaveny, who is both a law professor and a theologian, knows that. But, for some reason, she’s pretending not to know. Let’s return the favor, and pretend that we don’t know she’s pretending.
2. “Let’s agree that there’s a legal right for religious schools, including Catholic schools, to include morals clauses in their teachers’ contracts.”
Happy to oblige.
3. “Let’s agree that there are some instances where it is appropriate for a Catholic school to fire a teacher for morally inappropriate behavior. I gave the example of the two married teachers caught canoodling in the broom closet. But the specifics matter. We can't decide every case according to the most extreme examples of misbehavior. We need to consider each case on its own terms. (And more broadly, in my view, "misbehavior" cannot be interpreted only or primarily as sexual misbehavior.)”
Yes, the specifics matter. We can’t decide every case according to the most extreme examples. No question about that. As to the sentence in parentheses, evidently Professor Kaveny wants us to believe that there is someone somewhere who thinks that “misbehavior” can be interpreted only or primarily as sexual misbehavior. It’s as if people don’t know about fraud, embezzlement, intimidation, alcohol and drug abuse, calumny, partiality, and even worse things that have nothing to do with sex for which people—including Catholic school teachers and administrators—have been fired. But yet again, please don’t let on to Professor Kaveny that people know about these things. It evidently gives her pleasure to think she has instructed us.
4. “Let’s talk about the Montana case–a non-hypothetical case facing our community. Did the school act in accordance with the cardinal virtue of prudence, steadied by justice, and informed and elevated by Christian charity, in firing the pregnant, unmarried school teacher? Did it act in a pro-life manner? Did it teach Gospel values? Robbie, what sayeth thou about this particular case?”
So finally we discover what this is all about! Cathleen Kaveny somehow got it into her head that my thought experiment was directed at the case of a teacher in a parochial school in Butte who conceived a child outside of marriage. And she thinks I devised the experiment to defend a decision to fire the teacher. So she tauntingly fires at me what she clearly regards as some rather pointed questions, imagining that they will reveal my “mullah” like harshness and rigidity.
But there's a problem.
Evidently, Professor Kaveny was not aware that I posted my thought experiment before I had heard about the case of the Butte, Montana teacher. It was not directed at that case at all. When, later, a Facebook friend provided some of its details and asked for my opinion, here is what I said:
“If [the teacher] were repentant, then I, as her fellow sinner, would support keeping her on. I’d even host the baby shower. The example being set for the school children in that case would be one of repentance and forgiveness—loving the sinner, even while rejecting the sin. Of course, if her intention is to flout the Church’s teachings, then it’s a different story. That’s what is going on when a teacher, say, moves in with his or her boyfriend or girlfriend or enters into a civil marriage with a person of his or her own sex—or goes into the strip club business.”
So it turns out that the “Catholic mullah” Kaveny had targeted had in fact proposed what might be described as “act[ing] in accordance with the cardinal virtue of prudence, steadied by justice, and informed and elevated by Christian charity.” Indeed, the “mullah” responded to the teacher’s predicament “in a pro-life manner” and in a way that would “teach Gospel values”—down to hosting the baby shower.
But yet again, please don’t let on that you know. Let’s not disturb her sense of moral superiority to those whom she derides as Catholic “mullahs”—and “Rambos.”
And while we’re at it let’s not point out that it is unfair and prejudicial to use the word “mullah” to suggest harshness and rigidity, just as it would be unfair and prejudicial to use the words “father” or “priest” to suggest a tendency to pedophilia or ephebophilia. We wouldn’t want our friends at Commonweal to think they are being illiberal—that they are falling short of the demands of prudence, steadied by justice, and informed and elevated by Christian charity—when they fail to treat the religious faith of Muslims with the respect with which we would expect others to treat our Catholic faith.
I had an absolutely wonderful day yesterday at the Seattle University Search for Meaning Book Festival. The two keynotes - one by journalist Katherine Boo, author of Behind the Beautiful Forevers: Life, Death, and Hope in a Mumbai Undercity, and the second by Isabel Wilkerson, author of The Warmth of Other Suns, were tremendously powerful; my own talk on Growing in Love and Wisdom played to a full room, went very well and, as usual, provoked some great questions; the other sessions I attended were great; and I got to spend time (and have a great Thai dinner) with my friend and former colleague Chato, who drove up from Vancouver, Washington to spend the day with me here at the festival. I also got to see my friend Joshua, who lives here in Seattle, as well as to meet a number of other authors with whom I share interests.
There is much I could write about the day, but there is one line that haunted and that continues to haunt me, and it came early in the day, during the morning keynote by Katherine Boo. Boo's book tells the stories of people living in Annawadi, a poor, makeshift settlement in the shadows of luxury hotels near the Mumbai airport. At one point, the brother of a Muslim teenager who is falsely accused of a crime describes himself and the other residents of the settlement in this way: "Everything around is roses and we are the shit in between."
"We are the shit in between." He wasn't being sarcastic. He wasn't trying to shock. He was simply expressing the truth as he saw it. This is how he viewed himself. This is how a beloved child of God thinks of himself!
The entirety of the social doctrine of the Catholic Church begins with the recognition of the inviolable dignity of the human person, a dignity that stems from our creation in the image of God. That all humans are created in the image and likeness of God makes them equally sacred and precious and invests them with a dignity which they cannot lose. In his recent Apostolic Exhortation, Evangelii Gaudium, Pope Francis wrote that “no one can strip us of the dignity bestowed upon us by [God’s] boundless and unfailing love.”
No one can strip another of the dignity bestowed upon him or her, but what does it mean for some people to believe they have no dignity?
What does it do to someone's ability to flourish to believe that they are the shit between the roses?
And what does it say about how seriously we take our obligation to our brothers and sisters that we allow to exist the conditions that cause a young man view himself as so lacking in human dignity?
Note: The above is cross-posted from my blog, Creo en Dios! In response to my post, my friend John Donaghy, who works among the poor in Honduras, wrote this comment - a sad reminder that the feeling of the young man I quoted is not an isolated on:
Thanks for a post that touches the reality of the poor. In places like Mumbai and Honduras, the poor do see themselves as "the shit between the roses." This has been engrained in them by the society around them. In many ways I see that the role of the missionary and the church in general is to help the people see that they are not the shit in between the roses but that they are the rich fertile soil that makes possible roses and much more. Upholding the dignity of people is part of our mission, our way of accompanying the poor.
Anyone wishing to understand the philosophic basis of American constitutionalism as developed in the jurisprudence of John Marshall would be well served to read and reflect on Robert Faulkner’s 1968 book, The Jurisprudence of John Marshall.
In Appendix I (“Justice Holmes and Chief Justice Marshall”), Faulkner investigates the contrasting thought of Marshall and Oliver Wendell Holmes, Jr. One portion of this discussion in particular stood out for me when a recent reading revealed resonance with Chapter 1 of John Finnis’s magisterial Natural Law and Natural Rights. It is Faulkner’s discussion of Holmes’s failed attempt at a value-free description of law, an “abstraction from humane ends” that Faulkner describes as “the besetting and deepest flaw of Holmes’s thought.” (Lengthy excerpt after the jump:)
Saturday, February 15, 2014
I have been a contributor to Mirror of Justice for roughly half of the span of its life, having joined in 2010. My career as a law professor is roughly the same age: I started at my beloved St. John's Law School in 2009. Blogging here has always been an important and integral part of how I conceive part of my writing duties. I like to write, but not because I believe that what I write is particularly important, insightful, or impactful (it isn't). I simply enjoy the process of working out and putting down my thoughts, and think my life would be much the poorer if I were not blessed with the good fortune of doing so.
MOJ has given me a wonderful additional writing outlet. But it has also changed my perspective about writing as a duty. It has impressed upon me the value of speaking to a broader audience, again not for reasons of my "influence" (paltry would be a generous description) but because it is enriching to hear from and speak with more people rather than fewer. And, on a more personal note, it has helped me to recognize that writing is, for me, a vocation. I would not feel right with the world if I could not write. Since I began in November of 2010, I have written about 500 posts, some mercifully short and some (looking back on them now) unendurably long. Why would anybody do this? Nobody will read them again--not even me. I have to conclude that I write them for the same reason I write anything else--from something of a sense of compulsion or reflex necessity or calling. Perhaps from a sense of obligation, too, or in order to get certain ideas out into general circulation. But MOJ has helped me to understand that my internal reasons for writing are much more important than any external reasons, or reasons that are motivated by consequences.
Enough navel-gazing, and onto a final broader point about this blog and my gratitude toward it. "Intellectual diversity" in the legal academy has received some attention lately. Generally the phrase is taken to mean something approaching ideological diversity--not exactly a rough equivalence of thinkers "on the right" and "on the left," but something of that sort.
But for me, intellectual diversity is not so much ideological diversity as it is the diversity of intellectual cultivation, style, interest, and expression. The joy of Mirror of Justice, for me, is to be a participant in the collection of contributions all nestled within the capacious and yet tailored overcoat of Catholic thought--a true wealth of stylstic and intellectual perspective. It is Tom Berg's consistently penetrating and thoughtful commentary--a perennial and particular source of sustenance and provocation for me. It is Michael Moreland's formidable theological erudition in bringing to light an insight of Karl Barth or Robert Bellarmine. It is Lisa Schiltz's always moving reflections about human frailty and disability. It is Michael Perry speaking grandly in the religious register of international human rights. It is John Breen and Richard Myers, both of whom distinguish themselves with passionate and powerful comments about human life. It is Robert Hockett with his critical and discerning remarks about economic justice. And Russell Powell's informed and expert remarks on Islamic jurisprudence. It is Kevin Walsh's keen, precise, and far-sighted doctrinal and historical illuminations. Michael Scaperlanda with his sage ruminations about immigration and human anthopology. It is Rob Vischer's equanimous, tempered, and subtle interventions on the nuances of conscience. It is Patrick Brennan's brilliantly laser-like, intense focus on a point of natural law. It is Susan Stabile's spiritually and mystically rich interlocutions. It is Robby George with his profound philosophical acumen and his sharp eye for, as he has put it elsehwere, the "moral ecology" of a society. It is Fr. Araujo with his wide-ranging cosmological insights worthy of Tapparelli. It is Greg Sisk detailing a new and enlightening empirical insight. It is Mary Leary from her deeply morally righteous perspective as the protector and champion of abused children. It is Cecelia Klingele (welcome!) drawing from similar perspectival reservoirs when speaking about prisoners. And it is Rick Garnett, with his consistently generous, sensible, clear-eyed, and good-souled disposition. Each member, posting missives composed in a unique and distinctive style, together composing a society of Catholic legal scholars.
It has been a pleasure and privilege to be part of this republic of Catholic legal letters.
Friday, February 14, 2014
In a late-evening decision issued on the eve of Valentine's Day, Judge Arenda Wright Allen of the United States District Court for the Eastern District of Virginia granted a preliminary injunction requiring the issuance of marriage licenses to two same-sex couples. After an epigraph (the only one I can recall having seen in the thousands of judicial opinions that I have read), the opinion in Bostic v. Rainey opens with a moralistic tone fit for echoing in the media:
A spirited and controversial debate is underway regarding who may enjoy the right to marry in the United States of America. America has pursued a journey to make and keep our citizens free. This journey has never been easy, and at times has been painful and poignant. The ultimate exercise of our freedom is choice. Our Constitution declares that "all men" are created equal. Surely this means all of us. While ever-vigilant for the wisdom that can come from the voices of our voting public, our courts have never long tolerated the perpetuation of laws rooted in unlawful prejudice. One of the judiciary's noblest endeavors is to scrutinize laws that emerge from such roots.
And sure enough, the New York Times quotes the sentences about the Constitution providing that all men are "created equal." Neither the judge nor the New York Times reporter appears to recognize [have recognized] that the Constitution does not actually contain this language about being "created equal." That is in the Declaration of Independence. This is a minor error, in one sense, but it unwittingly encapsulates the confusion between morality and law that permeates thinking in this area.
The Fourteenth Amendment contains an Equal Protection Clause, and it provides for a form of equality in its birthright citizenship clause. But it is precisely that citizenship right that is undermined by Judge Allen's transmutation of controversial moral and political conceptions of equality into a form of positive law binding on the parties in this case. Although Judge Allen posits an individualistic conception of "choice" as "[t]he ultimate exercise of our freedom," there is an alternative conception of self-rule in a political community that could also lay claim to the label of "[t]he ultimate exercise of our freedom" in the American legal tradition. That is the exercise of freedom set aside by Judge Allen's decision. Contrary to Judge Allen's description of the debate over marriage as a debate about "who has the right to marry," a framing that presupposes an understanding of what "the right to marry" is, the debate is better described as a debate about what marriage is and what marriage ought to be. And decisions like Judge Allen's deprive states as political communities of the messy and difficult process of self-government through which changes in legal institutions like marriage should be made.
I voted for the Virginia constitutional amendment on marriage. It was a difficult vote for me, not because of my understanding of marriage but because of worries about "constitutionalizing" in a pluralistic and changing society and the legal effect of some of the broader language in the amendment. While my self-knowledge is imperfect, I did not then and do not now view my vote as "rooted in unlawful prejudice." There is nothing noble about Judge Allen's labeling of my vote and the votes of others like me in this way.
[UPDATE: The opinion has been amended.]
As MOJ readers know, the magisterium of the Roman Catholic Church is morally opposed both to capital punishment and to granting access to civil marriage to same-sex couples. I have recently argued, in my new book and elsewhere, that the two practices—capital punishment and excluding same-sex couples from civil marriage—violate the constitutional law of the United States (here, here, and here). Of course, any argument about the constitutionality of capital punishment or of excluding same-sex couples from civil marriage (or of any other law or public policy) necessarily relies on a particular understanding of how the judiciary should go about determining (1) whether a right claimed to be a constitutional right has constitutional status and, if so, (2) whether the challenged government action violates the right. What understanding do my arguments rely on—my arguments about capital punishment and same-sex marriage? I address that question in a new paper—a “working paper”—that I have just posted to SSRN. Some MOJ readers may be interested. The abstract of and a link to the paper are available here.
Thursday, February 13, 2014
Hard to believe that MOJ is now ten years old. Like any parent or relative on such an occasion one can’t help but look back in a wistful, quizzical glance and ask “Where did the time go?!”
Yes, MOJ has been online for ten years, offering posts on law, politics and culture – from the sublime (e.g. the nature of heaven) to the ridiculous (e.g. Duke basketball – thanks Rick!) and everything in between, all from a Catholic perspective, with a special eye toward Catholic social teaching.
Most of us are not so gifted that we can address every subject with equal grace or mastery and that is certainly true in my case. While I have attempted to address a variety of topics most of my posts on MOJ have tended to focus on the abortion issue.
My first post on MOJ was on July 24, 2004, and was (fittingly enough) entitled Happy Birthday. I wrote the piece just as my wife Susan and I were about to host a party celebrating our son Peter’s third birthday. As I explained in the post, I wrote it in part as a response to comments by Rob Vischer and Mark Sargent “concerning [a] story in the NYT regarding [a] woman who chose to abort two of her three children” in the same pregnancy.
Paraphrasing and elaborating on what I said in that earlier post, I can say (again) that, as the father of two children through adoption (Peter and Philip), everyday I thank God on my knees that their birthmother had the courage, love and determination to give them life – to carry them to term, and to place them with a loving family. If circumstances had been perhaps only slightly different – had she lacked the tremendous resolve and strength of heart that she possessed – then she may have been persuaded to follow another path; she may have made another “choice.”
Had this happened, had she made another choice, I am not so naïve or self-delusional as to think that no life would have been lost. It’s not as if these children wouldn’t have been rightly seen as human beings deserving of respect and protection. It’s that they would have been dead human beings. And the world would have been a much poorer place for it. The unique, beautiful, unrepeatable human beings that they are would have been lost to oblivion, surrendered to the mercy of God, and we the living would have diminished our own lives far more than theirs, since “it is better to suffer injustice than to commit it” (Gorgias 474-475).
Of course millions of children are not so fortunate. The tragedy of abortion takes place thousands of times a day resulting in over 1 million abortions per year in the United States and over 25 million annually world wide (see here).
Mindful of the fact that women face many pressures when confronted with an unexpected pregnancy, and with compassion toward mother and child, the Church opposes this slaughter of the innocents. The humanity of the unborn and the dignity owed to every member of the human family demands as much
As the CDF stated in its Declaration on Procured Abortion Quaestio de abortu: “From the time that the ovum is fertilized, a life is begun which is neither that of the father nor the mother; it is rather the life of a new human being with his own growth. It would never be made human if it were not human already” (see ¶ 12).
Here she proclaims that essential truth that the life of every human being is intrinsically valuable – that his or her life is of infinite worth, for you are “wonderfully made” (Psalm 139:14). Here the Church not only seeks to protect nascent human life with justice but to welcome the new member of the human family with love. “It’s good that you exist; it’s good that you are in this world!” (see here p. 164).
At the same time, it must be seen that this regard for justice is not a religious belief, let alone a specifically Christian or Catholic one. Yet it is the Catholic Church, especially in recent times, who has been the guardian and faithful herald of this truth in the public square.
I would explain the significance of this with respect to MOJ and the project of Catholic legal theory as follows.
At the first Catholic Legal Thought gathering of law professors that took place at Fordham Law School in June 2006, Kenneth Himes explained what he took to be one of the defining features of the Catholic social tradition (as opposed to the wider Catholic moral tradition) – that it addresses those social problems involving “institutions,” including but not limited to the market and consumerism, the treatment of workers, and the relationship between labor and capital, and war and peace, and international relations. He further explained that the reason why many scholars of Catholic social teaching did not include documents like Humanae Vitae and Evangelium Vitae within the canon of CST is that they involved decisions of individual morality – personal decisions rather than institutions.
I have always found this explanation wanting.
The whole apparatus of prenatal murder – scheduled by appointment, covered by insurance, subsidized by the state, encouraged by the media (as well as the beliefs and attitudes that inform these behaviors) – are an enormous structure of sin (See here). The practice of abortion in this country and world wide is just as “institutional” in character as the defects in the immigration system, overconsumption and its effect on the environment, and difficulties involved in determining what constitutes a “just wage” and seeing that workers receive it.
Indeed, I would go further and suggest that the teaching of the dignity of the life of every human being – from fertilization to natural death is the cornerstone of everything else. This is at the foundation of whatever else Catholic social teaching has to offer in terms of legal critique, and that if this point is missed then none of it – none of it – makes any sense. It is a gong booming or a cymbal clashing.
Insofar as MOJ has kept this message before the minds of those who would consider CST a worthwhile way of critiquing the culture and law then it has been a success and one that I hope will continue for many years to come.
February 13, 2014 | Permalink
As I reflect on the significance of a decade of discussion regarding Catholic legal thought, I approach the endeavor from a slightly different perspective than many of the previous posts (most of which are summarized nicely here). Unlike many of my colleagues, I am relatively new to blogging with MOJ (under two years) and do not have the same institutional memory as many of them.
My reflections, therefore, have drawn me toward thinking about those on the outside: the MOJ audience and the manifestation of Catholic legal thought on the front lines.
Regarding the audience, I share Michael's thoughts on the importance of MOJ to the practitioner or the young academic. I graduated from a Catholic law school saddened by the lack of guidance it offered students regarding Catholic legal thought, uniquely Catholic intellectual experiences, or even the interplay of faith and law in this vocation called lawyering. It seemed to me that a career - which, by definition, seeks to help people, businesses, and governments negotiate through some of their most difficult times - would demand training on how to negotiate the moral and personal issues that flow from such a vocation. Therefore, having this forum where legal issues of the day are discussed through a lens of Catholic legal theory fills a gap too often left by secular legal education.
Regarding the front lines – I had a recent experience in which the importance of Catholic legal education became very apparent. Last week I had the opportunity to give a keynote presentation to a group of international lawyers participating in a State Department program regarding "Children in the United States Justice System." The audience was a group of international judges and lawyers from throughout the world who were working in various capacities with victimized and vulnerable women and children. They were from countries as diverse as Finland, Guyana, and Japan. Needless to say it was an impressive group of professionals working on very challenging issues in their courts, trying to protect children, and trying to make systemic changes. The dedication to this important work was apparent as many of them were from countries without the resources of the United States and working under difficult conditions.
Many of them took the time to mention to me during the day that they were graduates from one of their country's Catholic universities. They mentioned it with such pride and suggested that they were offered the information to forge a connection with one another on their shared mission to improve the world. It was no surprise to me that men and women committed to justice and dignity affiliated with a Catholic university or law school. But it was a reminder of how critical it is to keep the dialog alive and vibrant about Catholic legal thought and Catholic principles. The "harvest is plenty, but the laborers are few." (Mt: 9:36-38). I think that this blog helps those of us in legal academia shape some of the laborers, and then helps the laborers sustain themselves while in the field.
Wednesday, February 12, 2014
Let's consider a hypothetical case. Imagine that a Muslim middle school --- let's call it Zaytuna Academy --- hires Mr. Khalil as its Vice Principal. Mr. Khalil is an effective administrator and is very popular with teachers and students alike. Now, Mr Khalil happens to believe that the prohibition of alcohol consumption in Islam is wrong. So he doesn't honor that teaching in his personal life. He also happens to reject Islamic teachings on sexuality and modesty. So, when an opportunity comes his way to become a business partner in a new "gentleman's club" featuring alcoholic beverages and nude dancing --- he takes advantage of it. And he makes no effort to hide his involvement in a "sideline" strip club business from his students. On the contrary, he freely acknowledges and discusses it when asked, and even makes use of some club promotional objects (e.g., "Lady Godiva's" pens and coffee cups) in his office. Moreover, he is identified as a partner in the business in an article about it in the local newspaper --- an article in which he was quoted extensively based on an interview he gave the reporter.
Zaytuna terminates Mr. Khalil's employment. In my opinion, the school should certainly have a legal right to do that. But I believe it has a moral right to do it, too. Indeed, I think it is right for the school to do it. In fact, I would go so far as to say it would be wrong for the school not to do it --- it would be an injustice, given the school's mission and concomitant obligations to the Muslim children and families it exists to serve.