Mirror of Justice

"The Inevitability of Fundamental Disagreement"

Rebecca Brown's review of Linda McClain's and James Flemings book, Ordered Liberty, is up at SSRN.  Here is the abstract:

This review of Ordered Liberty: Rights, Responsibilities, and Virtues, by James
E. Fleming and Linda C. McClain, considers the possibility of reconciliation
between political liberalism and its critics. The book promises such a
reconciliation with a new version of liberalism they call “constitutional
liberalism.” This review essay considers four different topics on which
constitutional liberalism claims to find compromise and concludes that, in the
end, the compromise is elusive. Ultimately, liberalism must choose because
rights cannot be subject to communitarian or majoritarian approval; equality
cannot yield to intolerance; and political status cannot depend on the tenets of
contested moral belief systems. There is great social value in seeking common
ground in the arenas of public life where overlapping consensus is possible; but
on the deep constitutive principles, we search in vain for common ground.

Reading the review, and recalling the book, I'm reminded of the thought that these conversations about "liberalism" can be frustrating because there does not seem to be "common ground" on what, exactly, we are even talking about.  Brown writes, for example -- when treating McClain and Fleming's discussion of freedom-of-association, the following:  "The book acknowledges the tension between allowing private associations to define and compose themselves as they wish (a republican ideal) and the principle of antidiscrimination (a liberal ideal)."  But . . . those of us who think that "private associations" matter tend to regard this as a "liberal" ideal, and to regard as anti-liberal -- as statist -- the view that the state should be able to impose on non-state associations the antidiscrimination (or other) laws that constrain the government's dealings with citizens.

Brown also writes, in a footnote -- in the context of discussing the "dual authority of parents and schools to educate children" and addressing the familiar "why and to what extent do/should/must we 'tolerate' the 'intolerant'?" question -- this:  "It seems right that tolerance should not and cannot extend to groups that practice inequality, because equality is a principle on which liberalism cannot compromise.  But it does not seem accurate to speak of this as an accommodation to those fundamentalist doctrines for which inequality is a foundational tenet."  It is very difficult, for me, to recognize as "liberal" a "liberalism" that cannot (even) "tolerate" groups that "practice inequality."

Of course, folks like my friend and colleague Patrick Deneen would say that I have simply failed to appreciate what "liberalism" really is, that I missed the totalizing, flattening, homogenizing, anti-pluralism that was always and still is there in "liberalism."  Maybe so.    

James Sandman's Commencement Address at Villanova Law

Do yourself a favor and take 20 minutes to watch Jim Sandman (President of the Legal Services Corporation and former managing partner of Arnold & Porter and General Counsel of the DC Public Schools) deliver the commencement address last Friday at Villanova Law (the introduction and address begin at the 17:00 mark here). It's an extraordinary presentation about personal character and the virtues of a good lawyer, including a moving tribute to the late Judge Max Rosenn of the US Court of Appeals for the Third Circuit.

Greenhouse on judicial tinkering with the machinery of death

"Still Tinkering" is the title of Linda Greenhouse's latest Opinionator column. The title derives from Justice Harry Blackmun's statement, in a dissent from denial of certiorari, that "From this day forward, I no longer shall tinker with the machinery of death."

Greenhouse's column is helpful inasmuch as it draws attention to practical and moral difficulties surrounding the administration of capital punishment. Its discussion of similarities between Oklahoma's recent botched execution and the method-of-execution challenge in Baze v. Rees, however, seems strained. 

Details of particular Eighth Amendment challenges aside, I agree with Rick that "the decision whether to use or abandon [capital punishment], and the moral responsibility for its use and misuse, are in our hands." On that front, NBCNews.com has a story headlined "Americans Back Death Penalty By Gas or Electruction If No Needle: Poll." Of interest for readers of this blog, a related story reports that "[f]orty percent of Catholics say they're against capital punishment, double the number of evangelical or fundamentalist Christians." Perhaps some of this difference is due to moral leadership exercised by people like Archbishop Coakley.

 

Remedies and the Religion Clauses: Reflections on the Jurisprudence of Tradition

The past few days have seen many criticisms from academic quarters of the Supreme Court's reliance on historical evidence and practice to reconstruct the tradition of legislative prayer in reaching the conclusion that it did in Town of Greece v. Galloway. I have argued at length elsewhere that recurrence to long-standing and unbroken traditions of practice as themselves constitutional justifications is a sensible way to give presumptive meaning to open-ended provisions in the Constitution like the religion clauses. This is particularly so in the face of the tragically clashing values of religious freedom, where the elevation of one value as paramount will result in the loss of others.

True, other considerations of sufficient weight can and should supervene on the presumptive deference accorded to traditional practices. True also, the nature of a tradition may itself be contested and subject to different interpretations. The past speaks with many voices, as Martin Krygier has put it. So that the reconstruction and reconstitution of a tradition by a court will often smooth away rough edges; it must do so, as this is what law invariably and necessarily does—skeletonize fact, in Clifford Geertz's phrase. The court’s reconstruction will not be the historian’s reconstruction because it cannot be. It will be a legal reconstruction—a judicial historiography. In this, tradition is hardly to be distinguished from the sorts of abstractions that courts and others often prefer to debate in this area of the law—equality, neutrality, and human dignity, to name only a few. But the reality of contestation does not mean that the idea of tradition or the substance of specific traditions is empty or somehow a fraud—any more than contestation about the idea of equality or neutrality or their specific applications means that equality and neutrality are empty or a fraud. Because, like Rick, I believe that the core function of constitutional interpretation is not to resolve political division and disagreement, but to ascertain the meaning of words in a text (if that is what is meant by textualism, then I subscribe to it), the facts of a practice's historical roots and duration are evidence of its consistency with the words of a law. Moral or political argumentation can, in unusual circumstances, trump such evidence. But those situations are, for me, exceptional. As I say, these are not extremely popular views in the legal academy. But they were controlling in Town of Greece. While legislative prayer may often be unwise as a political matter (and I believe that it is), the case was, in my view, correctly decided as a constitutional matter.

Yet in the balance of this post, I want to consider another feature of the case. What Town of Greece also shows is that the academy and the courts view the import of traditional analysis in legal interpretation in wildly different ways, assigning very different value to it. And the divide between the legal academy and the Supreme Court when it comes to the issue of the weight of tradition is not confined to the law of the religion clauses, or even to constitutional law proper.

In a superb new paper, The Supreme Court and the New Equity, Samuel Bray (UCLA) explains that what is “new” about the Supreme Court’s approach to remedies is that its methodology appeals to history and tradition. In a series of about ten cases in which the Court has been confronted in statutes with the words “equitable relief” or “equitable remedies,” it has reconstructed and re-entrenched the division of law and equity by relying on history and traditional practice. These statutes are authorizing courts to give certain specific kinds of remedies, not recommending that they do whatever they believe is politically or morally best in the name of equity. Bray writes that the Court has rejected the conventional academic wisdom of the past four decades and beyond—that there is no longer any viable distinction between equitable and legal remedies (this is seen most clearly in the difference between academic and judicial views about the continuing vitality of the irreparable injury rule). Here is Sam from the introduction to the piece:

[S]omething remarkable has happened at the Supreme Court. Over the last decade and a half, the Court has been slowly, perhaps even accidentally, laying the foundation for a very different future for the law of remedies. In ten different cases in nearly as many substantive areas, the Court has deeply entrenched the “no adequate remedy at law” requirement for equitable relief, and it has repeatedly underscored the distinction between legal and equitable remedies. The Court has shown no appetite, however, for reviving old distinctions between legal and equitable courts, procedures, or substantive areas of the law. Only in remedies—but there, with vigor—has the Court insisted on the historic division between law and equity.

The Court has not given a defense of perpetuating the division between legal and equitable remedies. Instead, at every point, the Court has supported its new equity jurisprudence by appealing to history and tradition. For example, in one of the new equity cases—a mere eight pages in the U.S. Reports—the word tradition or a cognate appears fourteen times.

The Court’s reconstructed tradition of equity is not fixed at any given moment. But neither does it recognize evolution or development. Rather, it looks, as Justice Kagan put it in U.S. Airways, Inc. v. McCutcheon, to “the kinds of relief ‘typically available in equity’ in the days of ‘the divided bench’ before law and equity merged.”

In relying on the history of equity to reconstruct a tradition of the division between equitable and legal remedies, sometimes the Court has gotten it quite wrong. It has made errors, and these have been rightly pointed out by legal historians. Sometimes these errors have been corrected by the Court; sometimes they still await correction. And yet, Sam writes that while the legal academic critique of the jurisprudence of tradition has been “stinging,” it has also been “incomplete.” As the jurisprudence of tradition was employed in an increasing number of cases, the historical errors decreased, the Court developed consensus about the boundaries of equitable remedies and about its own methodology, and the appeal to tradition sometimes restricted but also sometimes expanded the reach of equitable remedies. The jurisprudence of tradition matured.

Some legal academics have gone further in their criticisms. They have claimed that the “tradition” of equity is a fabrication—a fraud constructed by the Court—and that no such sharp-edged historical referent is even conceivable just exactly because the tradition is so ancient and so varied. But Sam resists this criticism, and quite rightly in my own view. The judge’s imperative is to interpret language and to decide cases, and it is in the shadow of this imperative that he looks to history. Here is Sam again, in a telling passage:

Judges are looking to history, but not for historical purposes. They must force unruly historical events through a decisionmaking process that will have binary results, such as liability or no liability, damages or no damages, guilt or acquittal, a jury trial or no jury trial, the availability of laches or no availability of laches, contempt or no contempt. Judges have no leisure for prolonged investigation, a series of monographs, a revise-and-resubmit. They do have some grounds for abstaining from making a decision, but there is no such thing as Incomplete Historical Record Abstention. Pressed to use history and pressed to decide, judges tend to emphasize the continuity of past and present. In this way, too, their use of history differs sharply from historical scholarship, in which the characteristic theme is discontinuity.

And yet this does not mean that the idealized tradition that judges reconstruct is empty or a phantom or a fraud. The tradition of remedies typically available in equity is not meaningless. Naturally there will be disputed questions at the borders, as there always are. But there are many questions that will be clearly settled by such an approach—indeed, this is what will make it possible for legal historians to criticize courts for clear mistakes (as when the Supreme Court misdescribed the writ of mandamus as an equitable remedy). As time goes on, the jurisprudence of the tradition of remedies typically available in equity will settle. It will mature.

The jurisprudence of tradition’s project to reconstruct an idealized history of equity is, in fact, a plausible middle course between the options of freezing equity at a distant historical moment, on the one hand, and imbuing it with amorphous exhortations to courts to be “flexible” or “adaptable” or to do “what is right,” on the other. These are the options available to a court confronted with the necessity to interpret and decide. Even more than that, however, the methodology of the jurisprudence of tradition highlights—helpfully—the perennial separation between academic and judicial functions, purposes, and roles. Perhaps there are lessons here for the religion clauses as well.

Did Justice Kennedy misuse Meyerson's book on religious liberty in Town of Greece v. Galloway?

The Baltimore Sun has a run a short piece criticizing Justice Kennedy's use of a quotation from Michael Meyerson's excellent book, Endowed by Our Creator: The Birth of Religious Freedom in America, in his opinion for the Court in Town of Greece v. Galloway. (HT: SCOTUSBlog) Says the Sun:

It's not every day that a law professor has his book quoted by the Supreme Court, and so the University of Baltimore's Michael I. Meyerson was understandably intrigued when his 2012 work about the Framers' views on religion made it into Monday's decision on public prayer.

But the plug from Justice Anthony M. Kennedy, who wrote the majority opinion, was somewhat bittersweet. Meyerson says the decision misread the point of his book and took the quote out of context in a way that allowed the justices to draw an entirely different conclusion about how the Founding Fathers approached religion in public.

It is certainly true that Kennedy's opinion for the Court does not square with the thrust of Meyerson's account of how the Framers used religious language in public settings. As to Justice Kennedy's use of the quotation at issue, however, one might note in Justice Kennedy's defense that he was simply quoting Meyerson's book as it was quoted in the Brief for Respondents. Kennedy wrote:

Respondents maintain that prayer must be nonsectarian, or not identifiable with any one religion; and they fault the town for permitting guest chaplains to deliver prayers that "use overtly Christian terms" or "invoke specifics of Christian theology." Brief for Respondents 20. A prayer is fitting for the public sphere, in their view, only if it contains the `"most general, nonsectarian reference to God,'" id., at 33 (quoting M. Meyerson, Endowed by Our Creator: The Birth of Religious Freedom in America 11-12 (2012)), and eschews mention of doctrines associated with any one faith, Brief for Respondents 32-33. 

The opinion here appears to accurately represent the respondents' position, which is all that Kennedy purported to do in this portion of the opinion. Respondents' position is also close to Meyerson's position with respect to Town of Greece, as set forth in the amici curiae brief in support of respondents that he joined. The first argument heading in the brief is that "Leading Framers Widely Believed that Governmental Religious Speech, If Allowed, Should Be Nonsectarian." And, citing Endowed by Our Creator, that brief states:

The words the Framers used in national charters, presidential addresses, and prayer proclamations—that is, speech directed at the public analogous to the speech at issue in this case—demonstrate the Framers’ belief that such religious language should be universal and nonsectarian. To be sure, the early Presidents did not shy from religious rhetoric, but the public religious speech of Presidents Washington, Jefferson, and Madison reflects an overriding concern that religion should unite, not divide, the nation. These Framers sought “to find a civil vocabulary that could encompass all people, regardless of their faith.” Meyerson, Endowed by Our Creator: The Birth of Religious Freedom in America 12 (2012).

It should be clear by now that the conclusions reached by the majority in Town of Greece differ from the conclusions the Justices in the majority would have reached had they followed Meyerson's lead. But that should have been apparent to anyone who has read both the opinion for the Court and Meyerson's book. The problem is not that Kennedy misdescribed Meyerson's position, as one might think when reading the Sun's claim that Kennedy "took the quote out of context in a way that allowed the justices to draw an entirely different conclusion about how the Founding Fathers approached religion in public." The context of Kennedy's opinion makes clear that he is describing the position that he is about to reject. The problem, instead, from Meyerson's point of view, is that Kennedy's rejection of his position relies on a misunderstanding of the Framers' use of religious language--a misunderstanding that he would not have labored under, one might suppose, if he had read, understood, and agreed with Meyerson's book.

[Update: Last sentence edited for clarity at suggestion of @MarcODeGirolami.]

Two observations on Legal Theory Lexicon entry - "What is the nature of law?"

Over at Legal Theory Blog, Larry Solum recently reposted a Legal Theory Lexicon entry, "The Nature of Law." Solum's helpful and concise Lexicon entries do not aim for completeness or depth, but rather to provide a general overview pitched toward first-year law students with an interest in legal theory. In keeping with that understanding of the scope of the project, I offer a couple of observations by way of supplementation from a natural-law-based understanding of positive law and legal positivism:

- Solum is correct that "[w]hen the positivists articulated the theory they were criticizing, their articulations of natural law theory were neither charitable nor true to the natural law tradition." He cites Holmes's reference to a "brooding omnipresence in the sky," although Holmes's reference was to the common law, not the natural law. A clearer example appears in what John Finnis has described as H.L.A. Hart's "polemic against lex iniusta non est lex." For one version of Finnis's argument against Hart on this point, see Finnis's entry on Natural Law Theories for the Stanford Encyclopedia of Philosophy (which Solum helpfully links in his Lexicon entry). [In the interest of evenhandness, it may be worth noting that the accusations of misunderstanding and mischaracterization between natural law theorists and legal positivists hava run in both directions. In addressing "5 1/2 Myths" about legal positivism that have given it "a whipping-boy status in so much legally-related literature," legal positivist John Gardner asks: "Have the members of any tradition of thought ever had their actual philosophical commitments so comprehensively mauled,twisted, second-guessed, crudely psychoanalyzed, and absurdly reinvented by ill-informed gossip and hearsay, as the legal positivists?"]

- The Lexicon entry observes that "[i]t is difficult to know where the positivist tradition begins." In addressing this issue, it is helpful to distinguish between (a) theorists of positive law, and (b) legal positivists. My teacher James Bernard Murphy makes this useful distinction in his discussion of "Legal Positivism and Natural Law Theory" as part of the Natural Law, Natural Rights, and American Constitutionalism project. In his book, The Philosophy of Postive Law: Foundations of Jurisprudence, Murphy describes St. Thomas Aquinas as "the first major theorist of positive law" (pp. 55, 81). But Aquinas is no "legal positivist." According to Murphy, "it is only in the twentieth century that some influential legal theorists began to call themselves 'positivists' and their doctrines 'legal positivism,' notably Hans Kelsen (1945), H.L.A. Hart (1961), and Joseph Raz (1986)." Once this distinction between theorists of positive law and legal positivists is in place, we can see why "the positivist tradition" can mean two different things, each of which has a different starting point.

[Update: At the sound suggestion of Matthew Lister, I've removed a potentially misleading reference to Jeremy Bentham that appeared in an earlier version of this post.]

Some highlights from the judges' questions during Fourth Circuit oral argument in Virginia same-sex marriage case of Bostic v. Schaefer

The Fourth Circuit has posted the audio of this morning's argument in Bostic v. Schaefer. I have excerpted below some highlights from the judges' questioning that provide a sense of the dueling arguments. While the arguments of counsel are thought to be primary, it is sometimes useful to listen just to what the judges were saying. In what follows, I've tried to transcribe some of the important parts of what they said. These excerpts do not provide the full picture and should be understood in context, but they are also interesting in themselves. While I've tried to get the transcription right, I've also not had the opportunity for leisurely review. Please let me know if there are any corrections to be made.

Continue reading

Report from Virginia same-sex marriage argument in Fourth Circuit

I attended argument this morning in Bostic v. Schaefer, an appeal from a judgment declaring Virginia's marriage laws unconstitutional insofar as they deny marriage to same-sex couples and refuse recognition to out-of-state same-sex marriages. The panel consisted of Judge Niemeyer, Judge Gregory, and Judge Floyd.

In keeping with standard practice, the panel's identity was not released until the morning of argument. Going into the argument after learning its composition, the advocates probably estimated that Judge Gregory would be harder on the laws' defenders, that Judge Niemeyer would be harder on the laws' challengers, and that Judge Floyd would be leaning toward affirmance. And that is how the argument seemed to play out.

Judge Gregory described the essence of marriage as individual choice and autonomy while Judge Niemeyer described marriage as a relationship that requires a man and a woman. Judge Floyd's questions focused on the effect on Baker v. Nelson of the line of cases leading up to and including Windsor.

Predicting the outcome of an appeal from the short glimpse provided by oral argument is inherently speculative and not very reliable. But my best guess is that a split panel will hold Virginia's marriage laws unconstitutional; that Judge Gregory will write an opinion that Judge Floyd joins in part (and Judge Floyd might write a short opinion explaining why he does not need to join the entirety of Judge Gregory's opinion); and Judge Niemeyer writes a dissent. I have the least confidence in assessing Judge Floyd's likely vote but base this assessment on the number and tenor of his questions (a handful of more challenging questions for the defenders and a couple of not-too-difficult questions for the challengers) as well as the understanding of Windsor by other lower-court judges.

(More to come later; original post was eaten by my computer. Signing off for now from Padow's.)

MOJ and Father Robert Barron’s Reflections on the New Evangelization (Part 1)

 

 

On Thursday I had the pleasure of attending an event sponsored by the Lumen Christi Institute hosted at the University Club in Chicago.  Father Robert Barron spoke on the theme of “Pope Francis and the New Evangelization.”  He gave the three hundred or so guests seven points which he said are central to evangelizing in the current age – reminding those assembled that evangelization is something that every Christian is called to do, sometimes using words (to paraphrase St. Francis of Assisi).

Anyone who has ever heard Father Barron lecture or preach, or has seen his PBS television series Catholicism knows that he is a gifted speaker.  His remarks struck me, however, in having something to offer not only with respect to how the faithful in the United States may present the Good News in a secular age – an age that seems eager to embrace the new verities offered by the culture but which reserves a determined skepticism for traditional religion in general and Catholicism in particular.  His remarks also have something to say to those of us in the Catholic blogosphere.

What follows is the first of several posts reflecting on Fr. Barron’s remarks and what I think they have to say with respect to the MOJ project and the presence of Catholic legal theorists in the legal blogosphere.  In this first post, I address the first two characteristics of the New Evangelization that Barron identifies.  I have tried to quote Fr. Barron as best I can from memory.  From time to time, however, I extrapolate on the points he made in my own voice.

1.  Lead with Beauty

Fr. Barron’s first point concerned the three transcendentals: truth, goodness, and beauty.  He argued that today the way to present the faith is to lead with beauty, not with truth (because we live in age in which the reflexive reaction to truth claims is “Well, you have your truth and I have mine”) and not with goodness (because we live in an age in which the reflexive reaction to claims of goodness is “Well, who are you to tell me how to act?!”).  Instead, he said that we should begin with what is beautiful – show them Our Lady’s Cathedral at Chartres, show them Sainte Chapelle, show them Mother Teresa’s sisters caring for the poorest of the poor.  Show them real beauty and they will be drawn in.  They will be attracted.   Eventually, the conversation will involve the other transcendentals as each is related to the other two, but begin with beauty.

The example that Fr. Barron gave was baseball and how his father introduced him to the sport by taking him to a game at the old Tigers Stadium in Detroit when he was only seven years old.  Attraction to the sport began with beauty (although, aside from Brazilians and their soccer, we are not accustomed to talking about competitive sports teams in this fashion).  From that experience he said he wanted to learn how to play the game and to play well (the good) so that over the years he at last came to understand and appreciate the game (the true).  It all began with the attraction of beauty.  By contrast, the last way to get someone to like baseball, he said, is to start by having them read the rulebook and put to heart the infield fly rule.

Pope Francis, Barron said, has led the charge of evangelization with beauty – with the merciful face of Christ.  Contrary to how some have portrayed the Holy Father as abandoning the claims of the orthodox and apostolic faith with respect to the true and the good, Francis has opted to lead people to the faith in all its fullness by introducing them to the beauty of the Church – showing them a baseball game rather than reading them the rulebook.

Leading with beauty is, I think, a challenge for those of us whose calling is law and the teaching of law.  As a normative discourse, law naturally lends itself to discussions of what is true and good.  Still, the beauty a Catholic theory of law may offer is the beauty of harmony, the beauty of coherence – the same beauty that many encounter the first time they study Euclid’s Elements.  This is not to say that Catholic legal theory supplies a ready answer to every legal problem that life presents with deductive certainty.  (Catholic legal theory is decidedly not the Formalism against which the Legal Realists of the 1920s and 1930s rebelled).  As discussed and evidenced many times on MOJ, people who seriously subscribe to Catholic legal theory may reasonably disagree on any number of legal questions involving prudential judgment, yet a proper understanding of the Church’s teaching concerning law and morality and an authentic Christian anthropology ensure that the project stays balanced and centered.

This harmony and coherence – beauty – might be contrasted with the ultimate ugliness of liberalism.  The experience of liberalism (as a legal and political theory and cultural phenomenon) is that of a tradition that contains within it the seeds of its own demise – championing principles that ultimately undermine one another: the equality of persons and freedom of thought and action unconstrained by any robust theory of the good that ends up favoring certain classes of individuals over others and championing a theory of the good that restricts the erstwhile free acts of those who refuse to conform.  This conflict is currently being played out in the controversy surrounding the HHS contraceptive/sterilization/abortifacient mandate and in the resistance of supporters of traditional marriage and religion to the redefinition of marriage to include same-sex couples.  It is also on full display in the recent investigation concerning sexual assault on college campuses (here) and the promotion of sexual license through university-approved student orientation and “sex week” events (here, here and here).  The incoherence of liberalism is (as Michael Scaperlanda and I have argued elsewhere) akin to the madness of Colonel Kurtz: “We train young men to drop fire on people but their commanders won’t allow them to write ‘fuck’ on their airplanes because it’s obscene” (see here).

2.  Don’t Dumb Down Catholicism

Barron bemoaned the way in which the faith was passed on to young Catholics following the Second Vatican Council.  “Beige Catholicism” is a term he coined a number of years ago to describe the sort of bland, inoffensive religion that many people his age (my age) and younger were brought up on.  The dull color beige fits the office park and the hotel meeting room but not the sanctuary of the Church.  The bold colors of the faith – the blood of sacrifice, the blue of fidelity, the green of hope and new life, and the luminescent gold of divine glory – cannot be captured on the palate of bureaucracy and “being nice.”

The faith isn’t about being nice.  Jesus wasn’t nice.  He upset the world, and the Christian faith is meant to upset the world – to turn it on its head – in the way that love always upsets the world.  “The first shall become last and the last shall become first” (Matt. 20:16).  A humble carpenter from a provincial backwater – the son of minor tribe from the Levant – is in fact the Son of the Most High, the “I Am” of Moses’ burning bush, God incarnate.  “The stone that the builders rejected has become the cornerstone” (Psalm 118: 22).

What, says Barron, was missing in the years following Vatican II – why so many of his generation left the faith – was the insipid version of the Christian faith that was passed on – a therapeutic version of the faith that traded in greeting-card sentiments, a version of the faith that its young adherents came to see as not intellectually defensible.  What was missing was an effort to introduce young people to the depth, rigor and richness of the Christian intellectual tradition – the tradition that gave birth to the university in the West, the tradition that gave the world Dante and Palestrina, the tradition that made modern science possible.  Confronted by ideas and systems of thought antithetical to the faith, many young Catholics turned away embarrassed that the religion in which they were raised had little to say by way of reply.  The decorative collages and the feel good moments of their religious education and CCD classes were no match for the assault on the faith that they encountered – an assault not only on the received ideas of their youth but on the mores in which they had been raised.

In this portion of the talk Fr. Barron talked about the response of Catholics to the so-called “New Atheism” – a misnomer because it is not really new – an atheism that repeats in a less rigorous, more pedestrian way the claims of Nietzsche, Freud, Marx and Feuerbach.  Barron told the story of an interview he did with CBC radio on the “New Atheism” which ended with the radio host asking him: “Father would you at least concede that you have the New Atheists to thank for forcing you Catholics to think about these questions for the first time?”  Barron’s response was a polite “no” – that the Church had in fact been thinking about these matters for the past two millennia – that the Church is fides quaerens intellectum.  For Barron, however, the question revealed just how widespread the view of the Church as an unthinking, anti-intellectual institution really is.  Sadly, it is a defining mark of the present age. 

Barron quoted John Henry Newman that it is the sign of a disordered faith that it no longer struggles with hard questions – questions posed by the world and questions that arise from within the Church.  It is precisely a sign of the vibrancy of Catholicism – ad Deum qui laetificat juventutem meam – notwithstanding the dumbed down era that we have suffered through – that the Church is able to respond to the New Atheism, and every “new” atheism (as it has done perennially).

This same vibrancy, I would add, enables the Church – through platforms like MOJ – to respond to phenomena that have a particularly legal dimension (like, e.g., the culture of death) with rigor and nuance.  As such MOJ is a place where the process of fides quaerens intellectum in law can take place.  General interest law reviews are, by and large, an inhospitable forum in which to explore a Catholic perspective on legal questions – inhospitable not because one’s ideas will be challenged but because they will never be published.  Yes, there are specialty law journals that provide fora for this sort of thinking, but most of them publish on a symposium format such that placing an article in one of them is rather haphazard.

MOJ serves as an important reminder to those who remain blithely ignorant of Catholicism’s rich intellectual tradition.  Moreover, it puts this reminde on display in the less formal (though still serious) setting of a blog.  How to drive traffic toward the site remains a challenge, but a challenge worth taking up.

Stand and Pray for Marriage Tomorrow? Okay.

The United States Court of Appeals for the Fourth Circuit will hear oral arguments tomorrow morning in a case challenging Virginia’s legal definition of marriage as limited to couples of the opposite sex. The Virginia Catholic Conference is organizing a “Stand and Pray for Marriage” event during the argument.

Somewhat to my surprise, I plan to attend. I am surprised because the idea that I intend to be at a rally related to a pending appeal at the Fourth Circuit clashes with some fundamental views I thought I held--and still do, at some level--about constitutional law, about politics, and about prayer. Even mentioning such an idea on a blog raises questions for me about the relationship between the public and the personal.

I am more of a law person than a “rally to show the court what we think” person. I tend to think that on matters of fundamental law we need more law than we need judicial temperature-taking of the populace. And I have no intention of praying for “my team” to “win.”

My prayer, rather, will be that God’s will be done ... and I don’t pretend here to know what God’s will is.

So why go? I’m not sure I fully understand or that I ever will. But if I do come to a better understanding in a way that I can explain on a blog post, I will aim to do so here.