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.

Monday, March 31, 2014

"The Mighty and the Almighty"

On Friday, I had the pleasure and privilege of hosting a roundtable conference sponsored (thanks!) by Notre Dame's Program on Church, State & Society and dedicated to Prof. Nicholas Wolterstorff's (relatively) recent bookThe Mighty and the Almighty:  An Essay in Political Theology, a work that one of the participants characterized as the "first work in analytic political theology."  Prof. Wolterstorff is, of course, both a giant in his fields and a really good guy.  The conference's conversations were engaging and rich, and it was exactly the kind of academic "event" that makes one think there is hope for academic events.  

For someone, like me, who thinks about the church-state nexus primarily as a lawyer and from a perspective strongly shaped by the Catholic social tradition and thinkers like Murray, it was a challenge and a treat to work through the "big questions" with trained philosophers, historians, theologians (and lawyers!) from a variety of religious backgrounds.  Among other things, we considered Wolterstorff's rejection of "perfectionism", of the Gelasian "two rules" model, and of (a version of) the retributive theory of punishment.  And (natch), the group spent a fair bit of time with the whole "are religious institutions more than groups of religious individuals?" question that's been in air quite a bit lately.  

March 31, 2014 in Garnett, Rick | Permalink

Dignity as a Constitutional Principle


This past Sunday, March 30, The New York Times published an op-ed piece by Bruce Ackerman, the well-known professor of law and political science who has taught at Yale for many years. Ackerman’s contribution to the ongoing Constitutional debate was published under the title “Dignity Is a Constitutional Principle.” The focus of his opinion essay is on the same-sex marriage issue. The essence of his thesis, echoing the perspectives on human dignity found in cases such as Windsor v. United States and Lawrence v. Texas (relying on Planned Parenthood v. Casey: “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”), is that laws prohibiting same-sex marriage are unconstitutional as they constitute an “assault on human dignity.” Professor Ackerman concludes his essay by quoting the Biblical Golden Rule cited by Senator Hubert Humphrey in the debate surrounding the passage of the Civil Rights Act of 1964: “Do unto others as you would have them do unto you.”

As an aside, it appears that Biblical references do not get automatically excluded from political and legal debate if they serve the interest, in some fashion, of the goal of the speaker who might otherwise argue that such a reference runs afoul of the Establishment Clause of the First Amendment. But let me return to my fundamental point for today.

Both Professor Ackerman and the resources upon which he relies do not define the important term dignity. Does an important term like this one which is used for advancing Constitutional claims require a sound definition so that when the term is used in political and legal discourse its meaning is clear to all who use it? Or is it assumed that the term needs no definition because there is universal understanding and acceptance of the term’s import? As friends and readers of the Mirror of Justice may recall, I, for one, think the clear and agreed meaning of language is critical to civilization and to the law that is a servant instrument of civilization. If the meaning of crucial language used in legal and political debates remains ambiguous, our legal and political discourse will be pointless.

If it is assumed that dignity is that which is due to anyone’s views, regardless of whether the views possess objectively reasoned merit, we are in trouble. We are in trouble because the position of the most aggressive totalitarian will be equal in dignity to the position of the most virtuous saint. If language’s meaning is relevant to legal theory, what is the Catholic take?

One can begin with a general understanding that human dignity has to do with qualities of the possessor that are worthy, have worthiness, and have worth. Worth (the root word used along with two of its derivatives in the previous sentence) means that there is honor in the holder who claims the dignity. Worth means that there is character or standing of a person in respect to that person’s moral and intellectual qualities and abilities. Jacques Maritain offered helpful insight about the sense of human dignity when he defined it this way: it “means nothing if it does not signify that by virtue of the natural law, the human person has the right to be respected, is the subject of rights, possesses rights. There are things which are owed to man because of the very fact that he is man. The notion of right and the notion of moral obligation are correlative.”

The first sentence presents the fundamental role of the natural law in defining dignity. I consider that natural law is the exercise of objective human intelligence comprehending the intelligible reality of the universe, which includes the nature of the human person. The third sentence of Maritain’s formulation is also crucial because human dignity is nothing if the claim to rights that are aligned with human dignity ignores the complementary and correlative moral responsibility that must attend all rights claims. These thoughts are absent from Professor Ackerman’s op-ed in yesterday’s Times. Although he cloaks his dignity argument in equality claims, he does not mention that while everyone is equal in certain fundamental ways (hence the equality between races in the contexts of voting and public accommodation) not everyone shares the same talents or interests. Hence, people do have differences that distinguish them from one another without these differences assaulting their human dignity and without undermining the importance of human dignity in rights discourse.

The op-ed article presents the view that there are no differences between opposite-sex unions and same-sex ones. Nonetheless, the distinction that many people still make between opposite-sex and same-sex couples demonstrates the need to consider legitimate distinctions when the topic of human dignity is under discussion. The rhetoric that these two kinds of relationships are the same for the purposes of marriage and human dignity does not, in fact, make them the same. Dignity may well be a Constitutional principle when it concerns the fundamental equality of humans on the basis of thoughts that correspond to the Maritain formulation. But it is not a Constitutional principle when the dignity/equality argument fails to consider and acknowledge the differences between people that are acknowledged not by human caprice but by objective intelligence comprehending the intelligible reality of differences in the nature and essence of the human person. Authentic human dignity is based on the truth about the human person and not the falsehood of political claims and the rhetoric used to justify these false claims. Objectively reasoned distinctions are critical to understanding equality claims and human dignity when they are considered Constitutional principles. Politically popular claims that do not take account of the reality of our objective intelligence that acknowledges authentic human nature do not advance but, rather, impede human dignity. Moreover, opinion polls siding with views that claim to be “on the right side of history” do not always serve authentic democracy, especially when they simply confirm the empty promises of a totalitarian regime.


RJA sj 

March 31, 2014 in Araujo, Robert | Permalink

Toobin: Hobby Lobby Challenge Is About Hurting Poor People

Jeffrey Toobin has an article in The New Yorker (no, not the one about how Justice Thomas is incompetent because he is overweight) that expresses the view that the challenge to the contraceptives mandate in Hobby Lobby is really just part of a larger effort to deprive poor people of needed medical care. Here's his evidence:

The political nature of the case was an open secret during the argument at the Court. Sotomayor told Paul Clement, the lawyer for Hobby Lobby, who was a solicitor general under George W. Bush, “You picked great plaintiffs.” (Customarily, of course, it is the plaintiffs who pick the lawyers.) Elena Kagan pointed out to Clement that he was really attacking the entire law. “Isn’t that just a way of saying that you think that this isn’t a good statute, because it asks one person to subsidize another person?” she asked. “But Congress has made a judgment and Congress has given a statutory entitlement and that entitlement is to women and includes contraceptive coverage. And when the employer says, no, I don’t want to give that, that woman is quite directly, quite tangibly harmed.”

It comes as news to me that what Hobby Lobby objects to is the concept of a legislative subsidy, rather than a government regulation--and not a statute--that decides how the subsidy will be financed. And I'm sure Hobby Lobby will be surprised to learn that it doesn't care about poor people--say, the poorer of its own employees for whom it provides health plans--health plans that some have urged it simply to abandon if it feels so strongly about its religious objections.

And here is a line from Peter Berger's latest column: "I am not overly fond of The New Yorker magazine with its incongruous mix of politically correct articles and advertisements for outrageously expensive goods."

March 31, 2014 in DeGirolami, Marc | Permalink

"Here comes everybody"

Those of us who are Catholics have had a rough few years. Well, make that a rough few decades. Horrific abuse scandals. Some weak, sometimes feckless, bishops. Wacky theologians. Boring homilies. Dreadful music. Widespread dissent, often rooted in appalling ignorance. I could go on. We envy our Evangelical friends for the vibrancy of faith in their communities. (Causing our Evangelical friends to wonder whether we've been hitting the communion wine too hard.) We envy our friends in the historically black churches for their great preaching and singing. We envy our LDS friends for having strong and inspiring leaders. We envy our Eastern Orthodox friends for having a beautiful liturgy. We envy our Orthodox Jewish friends for understanding the value of tradition, instead of throwing it overboard in pursuit of "relevance."

We feel sorry for ourselves.

But sometimes, one notices the little things that make it great to be Catholic. Like diversity.  Diversity?  I know what you're thinking:  "My goodness, Robby really has been hitting the sauce. He's not usually the sort who goes for this p.c. diversity business."

But, no, I mean it. Diversity. I was sitting at mass today, listening to the homily (which actually wasn't all that boring, truth be told) and looking around at my fellow worshippers. I mean to tell you, it was glorious diversity.  The Catholic Church really is "here comes everybody." There were people I know who are Irish, Polish, Italian, Mexican, Filipino, Guatemalan, but also African, Indian (the kind from India), Korean, Vietnamese, Colombian, Russian (why they don't go to the Orthodox Church, I'm not sure; but there they were), Lebanese, Japanese, Jamaican, Chilean, Ecuadorean---all in the same local parish.

And that's only the beginning.

There were the folks from the Western section of Princeton who work in financial services in NYC and have a net worth in the tens or even hundreds of millions. And there was the guy who owns the local bakery. And the woman who has one of the florist shops and another who has (or works in, I'm not quite sure) one of the few remaining travel agencies. There was the little old man with the amazingly bad toupee. (He'd be better off with some black magic marker.) There were the laborers who work with the local landscapers and builders. They and their families were sitting there alongside the rich people from the Western section and the University professors. One of the professors (who, as it happens, is one of the world's leading scientists) was kneeling next to the wife of my tailor---she's an immigrant woman whose simple southern Italian spirituality is of the sort that gets Catholics labeled Mary worshippers by our Protestant friends. Then there was the guy--late 60s or 70s in age, with the classic looks of the 1940s male movie star, right down to the pencil thin moustache---who kneels through the whole mass counting his beads and saying the rosary. He does it every Sunday.

We have the Princeton University undergrads and graduate students headed for big things, and the people with Down's Syndrome and other handicaps. We have the crying infants and squirming toddlers (not to mention the adolescents who, I'm sure, are giving their parents fits) and the people (mostly women, but a few men) who are certainly in their 90s. My sense is that the congregation as a whole is made up of fairly orthodox Catholics, which I doubt is always the case in university towns. When my former student, Fr. Mike McClane, preaches, only one or two people usually get up and walk out. Given that he often says things that cause massive heartburn to Catholics who strongly dissent from some of the Church's moral teachings, that's pretty surprising for a parish in a town like Princeton, but there it is. Anyway, if we're missing ideological (or whatever you want to call it) diversity we sure have lots of all the other kinds, including, I'm sure, plenty of sinners like me, and even, I would be wiling to bet, a few saints.

March 31, 2014 | Permalink | Comments (0)

Saturday, March 29, 2014

Another pro-life Democrat caves

One of the great tragedies of the past three decades has been the collapse of support for the pro-life cause among leaders of the Democratic Party.  There are still many pro-life Democrats, but few who hold national or statewide office.

West Virginia Governor Earl Ray Tomblin is (or, in any event, claimed to be) one of the few.  But last night, as West Virginia Right to Life has holding its annual Rose Dinner, Tomblin vetoed a bill enacted by lopsided bipartisan majorities in both houses of the state legislature to prohibit abortions after twenty-weeks, when the child in the womb can feel pain.

I do not know Governor Tomblin, so I cannot comment one way or another on his honesty or good faith. But if he is being truthful about his pro-life convictions, I am puzzled as well as disappointed by his decision to veto a piece of legislation that would have protected unborn babies from being killed by abortion after twenty-weeks.  He says that he was advised by lawyers that the bill was unconstitutional and by medical professionals that it was a threat to women’s health.  But only lawyers and medical professionals who were already committed to the radical pro-late-term abortion ideology the Governor claims to reject would have made such claims.  So the question naturally arises:  Is the Governor hiding behind bad “advice” that he deliberately procured to provide cover for a veto that serves no interest other than those of the powerful abortion industry and its lobby?

March 29, 2014 | Permalink

Griffiths on Rodriguez

Paul J. Griffiths is the Warren Chair of Catholic Theology at Duke University.  Richard Rodriguez is ... well, if you don't already know but follow the link below, you will know.

In First Things, Griffiths has a wonderful review, here, of Rodriguez's new book, Darling:  A Spiritual Autobiography.  An excerpt from Griffith's review:


Among the impurities the Church might want to cleanse herself of is people like Rodriguez, he thinks, because he prefers to share his love and his bed and his life with a man rather than a woman.  He takes the Church to be wrong doctrinally about homosexual acts, and often wrong, too, in what it teaches about women.  He would like the Church to take instruction on these matters, as Jesus also did, from Mary, another darling in these pages.  And he thinks that if it did, the Church’s self-shrouding fear might grow less and its loving embrace of pain might show itself more clearly.

I don’t agree with every position taken in Darling, or with every argument offered.  On Islam, I suspect that what’s needed at the moment isn’t emphasis on the similarities among the three so-called Abrahamic religions as desert faiths, real though these are, but rather on difference and complementarity.  The recent work of Rémi Brague on this, especially On the God of the Christians (and on one or two others), is especially instructive.  On homosexuality and homosexual acts, by contrast, I think Rodriguez much closer to being right than not.  Insofar as such acts are motivated by and evoke love, they are good and to be loved; insofar as they do not, not. In this, they are no ­different from ­heterosexual acts.

There are other interesting differences between the two kinds of act.  But if you think, as Rodriguez seems to, and I do, and all Catholics should, that we live in a devastated world in which no sexual acts are undamaged, free from the taint of sin and death and the concomitant need for lament, then the fact that ­homosexual acts have their own characteristic disorder is no ground for blindness to the goods they enshrine.  Gay men should, of course, darling one ­another; those of us whose darlings are of the opposite sex should be glad that they do, and glad of instruction in love by the ways in which they do.  Love is hard enough to come by in a devastated world without encouraging blindness to its presence.


Again, the entire review, in First Things, is here.

March 29, 2014 in Breen, John, Perry, Michael | Permalink

Friday, March 28, 2014

Must-read from Prof. Michael McConnell on the Hobby Lobby case

Here, at the Volokh Conspiracy / Washington Post.  In the piece, Prof. McConnell engages four questions that came up during oral argument and that the justices will likely have on their mind as they meet in conference this morning:

(1) Could Hobby Lobby avoid a substantial burden on its religious exercise by dropping health insurance and paying fines of $2,000 per employee?

(2) Does the government have a compelling interest in protecting the statutory rights of Hobby Lobby’s employees?

(3) Would a ruling in favor of Hobby Lobby give rise to a slippery slope of exemptions from vaccines, minimum wage laws, anti-discrimination laws, and the like?

(4) Has the government satisfied the least restrictive means test?

Prof. McConnell explains why the answer to each of these questions is "no."

March 28, 2014 in Garnett, Rick | Permalink

Thursday, March 27, 2014

World Vision reverses course and returns to the biblical view of marriage

World Vision U.S. has reversed course and reaffirmed the biblical view of marriage as the conjugal union of husband and wife.  Here is the text of the statement issued by the organization's President and the Chairman of its board of directors.

Dear Friends,

Today, the World Vision U.S. board publicly reversed its recent decision to change our employment conduct policy. The board acknowledged they made a mistake and chose to revert to our longstanding conduct policy requiring sexual abstinence for all single employees and faithfulness within the Biblical covenant of marriage between a man and a woman.

We are writing to you our trusted partners and Christian leaders who have come to us in the spirit of Matthew 18 to express your concern in love and conviction. You share our desire to come together in the Body of Christ around our mission to serve the poorest of the poor. We have listened to you and want to say thank you and to humbly ask for your forgiveness.

In our board's effort to unite around the church's shared mission to serve the poor in the name of Christ, we failed to be consistent with World Vision U.S.'s commitment to the traditional understanding of Biblical marriage and our own Statement of Faith, which says, "We believe the Bible to be the inspired, the only infallible, authoritative Word of God." And we also failed to seek enough counsel from our own Christian partners. As a result, we made a change to our conduct policy that was not consistent with our Statement of Faith and our commitment to the sanctity of marriage.

We are brokenhearted over the pain and confusion we have caused many of our friends, who saw this decision as a reversal of our strong commitment to Biblical authority. We ask that you understand that this was never the board's intent. We are asking for your continued support. We commit to you that we will continue to listen to the wise counsel of Christian brothers and sisters, and we will reach out to key partners in the weeks ahead.

While World Vision U.S. stands firmly on the biblical view of marriage, we strongly affirm that all people, regardless of their sexual orientation, are created by God and are to be loved and treated with dignity and respect.

Please know that World Vision continues to serve all people in our ministry around the world. We pray that you will continue to join with us in our mission to be "an international partnership of Christians whose mission is to follow our Lord and Savior Jesus Christ in working with the poor and oppressed to promote human transformation, seek justice, and bear witness to the good news of the Kingdom of God."

Sincerely in Christ,

Richard Stearns, President

Jim Beré, Chairman of the World Vision U.S. Board

March 27, 2014 | Permalink | Comments (0)

Recommended Reading

Francis and Obama


Following his meeting with Pope Francis today, President Obama commented on the gift he received from the Holy Father, a copy of the Pope's Apostolic Exhortation Evangelii Gaudium.

The President remarked "I will treasure this.  I actually will probably read this in the Oval Office when I'm deeply frustrated. I'm sure it will give me strength and calm me down."

Much of the American media has made the most out of the optics of the President's audience with the Pope stressing that the Pope and President have much in common, including a desire to address poverty and income inequality.  This is surely true.  But is is also true that the Pope and the President differ on a fundamenal level, on the level of anthropology, in that the Church sees every human being as someone of infinite value -- and as a child of God.

Some like A.J. Dionne, have taken the theme of commonality to absurd lengths, suggesting (at the Washington Post and on MSNBC) that the two leaders see more eye to eye than the Pope and the American bishops do, and that their conversation might address how to get the American hierarchy to support the President.  The Holy See's press release concerning the meeting indicates the conversation was somewhat different, that the two talked about issues that the U.S. bishops have repeatedly addressed in their dealings with the administration.

I certainly hope that the President reads the Pope's exhortation in its entirety.  He might, however, find the following to be of particular interest:

61. We also evangelize when we attempt to confront the various challenges which can arise.  On occasion these may take the form of veritable attacks on religious freedom or new persecutions directed against Christians; in some countries these have reached alarming levels of hatred and violence. In many places, the problem is more that of widespread indifference and relativism, linked to disillusionment and the crisis of ideologies which has come about as a reaction to any-thing which might appear totalitarian. This not only harms the Church but the fabric of society as a whole. We should recognize how in a culture where each person wants to be bearer of his or her own subjective truth, it becomes difficult for citizens to devise a common plan which transcends individual gain and personal ambitions.

*    *    *

66. The family is experiencing a profound cultural crisis, as are all communities and social bonds. In the case of the family, the weakening of these bonds is particularly serious because the family is the fundamental cell of society, where we learn to live with others despite our differences and to belong to one another; it is also the place where parents pass on the faith to their children. Marriage now tends to be viewed as a form of mere emotional satisfaction that can be constructed in any way or modified at will. But the indispensible contribution of marriage to society transcends the feelings and momentary needs of the couple. As the French bishops have taught, it is not born “of loving sentiment, ephemeral by definition, but from the depth of the obligation assumed by the spouses who accept to enter a total communion of life”.

*    *    *

213. Among the vulnerable for whom the Church wishes to care with particular love and concern are unborn children, the most defenceless and innocent among us. Nowadays efforts are made to deny them their human dignity and to do with them whatever one pleases, taking their lives and passing laws preventing anyone from standing in the way of this. Frequently, as a way of ridiculing the Church’s effort to defend their lives, attempts are made to present her position as ideological, obscurantist and conservative. Yet this defence of unborn life is closely linked to the defence of each and every other human right. It involves the conviction that a human being is always sacred and inviolable, in any situation and at every stage of development. Human beings are ends in themselves and never a means of resolving other problems. Once this conviction disappears, so do solid and lasting foundations for the defence of human rights, which would always be subject to the passing whims of the powers that be. Reason alone is sufficient to recognize the inviolable value of each single human life, but if we also look at the issue from the standpoint of faith, “every violation of the personal dignity of the human being cries out in vengeance to God and is an offence against the creator of the individual”.

214. Precisely because this involves the internal consistency of our message about the value of the human person, the Church cannot be expected to change her position on this question. I want to be completely honest in this regard. This is not something subject to alleged reforms or “modernizations”. It is not “progressive” to try to resolve problems by eliminating a human life. On the other hand, it is also true that we have done little to adequately accompany women in very difficult situations, where abortion appears as a quick solution to their profound anguish, especially when the life developing within them is the result of rape or a situation of extreme poverty. Who can remain unmoved before such painful situations?

*    *    *

255. The Synod Fathers spoke of the importance of respect for religious freedom, viewed as a fundamental human right.  This includes “the freedom to choose the religion which one judges to be true and to manifest one’s beliefs in public”.  A healthy pluralism, one which genuinely respects differences and values them as such, does not entail privatizing religions in an attempt to reduce them to the quiet obscurity of the individual’s conscience or to relegate them to the enclosed precincts of churches, synagogues or mosques. This would represent, in effect, a new form of discrimination and authoritarianism. The respect due to the agnostic or non-believing minority should not be arbitrarily imposed in a way that silences the convictions of the believing majority or ignores the wealth of religious traditions. In the long run, this would feed resentment rather than tolerance and peace.

256. When considering the effect of religion on public life, one must distinguish the different ways in which it is practiced. Intellectuals and serious journalists frequently descend to crude and superficial generalizations in speaking of the shortcomings of religion, and often prove incapable of realizing that not all believers – or religious leaders – are the same. Some politicians take advantage of this confusion to justify acts of discrimination. At other times, contempt is shown for writings which reflect religious convictions, overlooking the fact that religious classics can prove meaningful in every age; they have an enduring power to open new horizons, to stimulate thought, to expand the mind and the heart. This contempt is due to the myopia of a certain rationalism. Is it reasonable and enlightened to dismiss certain writings simply because they arose in a context of religious belief? These writings include principles which are profoundly humanistic and, albeit tinged with religious symbols and teachings, they have a certain value for reason.

257. As believers, we also feel close to those who do not consider themselves part of any religious tradition, yet sincerely seek the truth, goodness and beauty which we believe have their highest expression and source in God. We consider them as precious allies in the commitment to defending human dignity, in building peaceful coexistence between peoples and in protecting creation. A special place of encounter is offered by new Areopagi such as the Court of the Gentiles, where “believers and non-believers are able to engage in dialogue about fundamental issues of ethics, art and science, and about the search for transcendence”.  This too is a path to peace in our troubled world.

258. Starting from certain social issues of great importance for the future of humanity, I have tried to make explicit once again the inescapable social dimension of the Gospel message and to encourage all Christians to demonstrate it by their words, attitudes and deeds.

March 27, 2014 | Permalink

Wednesday, March 26, 2014

"Lost Classroom, Lost Community"

I am delighted to report that the latest book by Prof. Nicole Stelle Garnett (and her co-author, my friend and colleague Prof. Margaret Brinig) is out (and available for purchase!)  The book is "Lost Classroom, Lost Community:  Catholic Schools' Importance in Urban America, and it's published by the University of Chicago Press.  Here's a blurb from the Press:

In the past two decades in the United States, more than 1,600 Catholic elementary and secondary schools have closed, and more than 4,500 charter schools—public schools that are often privately operated and freed from certain regulations—have opened, many in urban areas. With a particular emphasis on Catholic school closures, Lost Classroom, Lost Communityexamines the implications of these dramatic shifts in the urban educational landscape. 

More than just educational institutions, Catholic schools promote the development of social capital—the social networks and mutual trust that form the foundation of safe and cohesive communities. Drawing on data from the Project on Human Development in Chicago Neighborhoods and crime reports collected at the police beat or census tract level in Chicago, Philadelphia, and Los Angeles, Margaret F. Brinig and Nicole Stelle Garnett demonstrate that the loss of Catholic schools triggers disorder, crime, and an overall decline in community cohesiveness, and suggest that new charter schools fail to fill the gaps left behind.

This book shows that the closing of Catholic schools harms the very communities they were created to bring together and serve, and it will have vital implications for both education and policing policy debates.

Congrats to Nicole!

March 26, 2014 in Garnett, Rick | Permalink