Sunday, August 31, 2014
My friends and colleagues, John Cavadini and Christian Smith, have a new, important, and slim volume out called "Building Catholic Higher Education: Unofficial Reflections from the University of Notre Dame." Here's a blurb:
American Catholic universities and colleges are wrestling today with how to develop in ways that faithfully serve their mission in Catholic higher education without either secularizing or becoming sectarian. Major challenges are faced when trying to simultaneously build and sustain excellence in undergraduate teaching, strengthen faculty research and publishing, and deepen the authentically Catholic character of education. This book uses the particular case of the University of Notre Dame to raise larger issues, to make substantive proposals, and thus to contribute to a national conversation affecting all Catholic universities and colleges in the United States (and perhaps beyond) today. Its arguments focus particularly on challenging questions around the recruitment, hiring, and formation of faculty in Catholic universities and colleges.
You can (and should) learn more about and buy the book here.
Plaintiffs challenging Florida's longstanding school-choice program have filed a motion seeking the recusal of Judge Angelda Dempsey because . . . she is Catholic. (Here's the affidavit.) Seriously. Because of "a continuing association between Judge Dempsey and the interests in my case through her relationship with the Catholic doctrine and position on vouchers for Catholic schools; Catholic Charities; Trinity Catholic School; and as a contributor to Catholic causes.", she is "biased." Groan.
Friday, August 29, 2014
A very interesting essay in Christianity Today on the author's experience at Vanderbilt with its "all comers" policy. One feature of the piece that struck me was how such policies end up flattening out beliefs or creeds as such. The terrible problem seems to be that people have distinctive beliefs. The policy's aim seems to be to compel all associations to reflect certain core commitments, which in turn destroys their own distinctive creeds, thereby demolishing what is special about them in the first place:
In writing, the new policy refers only to constitutionally protected classes (race, religion, sexual identity, and so on), but Vanderbilt publicly adopted an "all comers policy," which meant that no student could be excluded from a leadership post on ideological grounds. College Republicans must allow Democrats to seek office; the environmental group had to welcome climate-change skeptics; and a leader of a religious group could not be dismissed if she renounced faith midyear. (The administration granted an exception to sororities and fraternities.)
Like most campus groups, InterVarsity welcomes anyone as a member. But it asks key student leaders—the executive council and small group leaders—to affirm its doctrinal statement, which outlines broad Christian orthodoxy and does not mention sexual conduct specifically. But the university saw belief statements themselves as suspect. Any belief—particularly those about the authority of Scripture or the church—could potentially constrain sexual activity or identity. So what began as a concern about sexuality and pluralism quickly became a conversation about whether robustly religious communities would be allowed on campus.
In effect, the new policy privileged certain belief groups and forbade all others. Religious organizations were welcome as long as they were malleable: as long as their leaders didn't need to profess anything in particular; as long as they could be governed by sheer democracy and adjust to popular mores or trends; as long as they didn't prioritize theological stability. Creedal statements were allowed, but as an accessory, a historic document, or a suggested guideline. They could not have binding authority to shape or govern the teaching and practices of a campus religious community.
Wednesday, August 27, 2014
As an advocate and practitioner of judicial googling, I'm hoping that Judge Posner will eventually come across Ryan Anderson's "7 Reasons Why the Current Marriage Debate Is Nothing Like the Debate on Interracial Marriage." If he had been able to read it before yesterday's oral arguments, perhaps Bloomberg's headline would be something other than "Appeal Judge Sees Tradition of Racism in Gay-Marriage Ban."
At a time when "metrics" and "assessment" are the watchwords in legal education (and elsewhere), this nice reflection (in the University of Notre Dame student newspaper) by my friend, Fr. Joe Corpora, might be helpful. A bit:
We need to know our nothingness, our lowliness and our emptiness. The more we empty ourselves of pride and worldly worth, the more God can fill us with himself. The more we humble ourselves, the more God can exalt us. It’s a complete reversal of the world’s values as we experience them day-to-day. And since we are terrified to be “nothing,” we are always looking for ways to prove that we are something.
If we are nothing, what can make us feel like we are something? Data, metrics and graphs: things that calm our fears with numerical assertions of our importance. These can make us feel like we’re somebody big and we’re going somewhere important. I lament that the Church and her institutions have become more and more addicted to data and metrics during the past 40 years. Is this addiction to data and metrics related to Mary’s fading into the background and our corresponding loss of knowing our dependence on God? . . .
Tuesday, August 26, 2014
Various news sources are speculating about the case of the former papal nuncio to the Dominican Republic, Josef Wesolowski, who is alleged to have sexually abused children and youth in the country where he served. Much of this speculation, often accompanied by misleading headlines of various articles, is just that, opinion and conjecture. There is not a whole lot of appreciation or analysis of the law of the Church and of nations that applies to this case.
Let’s start with the law of the Church. All things being considered, it appears that the Holy See acted as expeditiously as any sovereign would be obliged to do in reining in its natural person subject, i.e., Josef Wesolowski, through the exercise of the nationality principle (Wesolowski held and used a diplomatic passport of the Holy See). This is not the law of the “Vatican” or the Church or Holy See but the law of nations, i.e., public international law. Along with complementary norms of the Code of Canon Law, this principle of the law of nations would explain Wesolowski’s recall to Rome and the initiation of due process against him—a principle which applies to all sovereigns temporal and spiritual. It is the principle of personal jurisdiction which has led to his dismissal from the clerical state, i.e., his laicization. Some commentators do not understand the significance of this element of the juridical process. As a cleric, I can assure anyone that this is a legal event of profound legal, ecclesiastical, and moral significance. To many non-clerics, it may seem nothing or a mere tap on the wrist. In reality, it is something of momentous significance.
In the further exercise of due process, Wesolowski has appealed the decision resulting in his laicization. Of course, many defendants—be they engaged in civil or criminal proceedings—have the juridical right to appeal most decisions that are unfavorable to them. Mr. Wesolowski has exercised this right as it is the right of any defendant. Due process does not stop with the initial decision in most contested matters, nor does it stop with Wesolowski’s laicization.
Mr. Wesolowski has allegedly committed wrongs against his victims and against his priestly state that has led to his laicization, but he has also committed crimes against the law of the sovereign that issued his nationality as a diplomat. As long as he was a recognized diplomat, he enjoyed diplomatic privileges and immunities against the receiving country, i.e., the Dominican Republic, under public international law. The Holy See is a party (1964) to the Vienna Convention on Diplomatic Relations (1961) which specifies that diplomats are protected from virtually all law enforcement in the country where they serve. As Article 31 of the Convention states, “A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.” The Convention does have exceptions to this principal rule, but they do not seem to apply to the Wesolowski case.
If things get complicated for the diplomat because of actions that are covered by Article 31 of the Convention, he or she can be recalled by the sending state (here, the Holy See) or declared persona non grata by the receiving state (here, the Dominican Republic) and expelled. It is not appear that the Dominican Republic expelled Wesolowski, but it is clear that the Holy See recalled him and brought the initial legal action against him in the form of laicization and the removal of his diplomatic immunity.
It must be remembered who and what are protected by the doctrine of diplomatic immunity: it is for the protection of the sending sovereign (the Holy See). While the diplomat can benefit from the protection of diplomatic immunity, the doctrine does not subsist principally for the protection and convenience of the individual diplomat himself or herself. It exists under international law for the sending state which sent the diplomat so as to augment the efficient performance and functioning of diplomatic missions.
The legal doctrine of diplomatic immunity raises further issues about additional due process matters. This is clear from Article 32 of the Convention which posits that, “The immunity from jurisdiction of diplomatic agents… may be waived by the sending State” and the waiver ‘must be express.” But it is the sending State, here the Holy See, that makes this call. As the Holy See has stripped Wesolowski of his diplomatic immunity, it appears that further legal proceedings in the Vatican are pending against him. It would therefore be premature to suggest at this stage that Mr. Wesolowski has escaped justice that includes justice and its due process in the Dominican Republic and his native Poland. As his immunity has been purged, Mr. Wesolowski is subject to additional due process of law by any competent legal authority which has a rightful claim of jurisdiction over him. This could mean the legal authorities of the Holy See and the Vatican City State or the Dominican Republic or his native Poland.
One final point needs to be made now even though many more things can and need to be said about this case. There may be some plaintiffs’ counsel who will see the legal actions taken by the Holy See and the Church against Mr. Wesolowski as presenting an opportunity to sue the Holy See in the courts of the temporal authorities for the wrongs allegedly committed by him. I am confident that the Holy See and the Church will rely on the principles of public international law that have protected other sovereigns from liability from the wrongs perpetrated by their diplomats who committed grave wrongs against the citizens of receiving states and betrayals of the service to which Wesolowski pledged himself on behalf of the Holy See and the Church. Here one cannot dismiss the good will exercised by the Holy See with any competent legal authority concerning the means of redressing the wrongs he allegedly committed. They have apparently caused great wrongs against the people of the Dominican Republic, and they have also caused great offense against the Holy See and the Church, both of which have the legal right to proceed against him. To contend that only the Dominican Republic and her people have been wronged and the Holy See and the Church have not would generate a new injury; but this last injury has redress in the law of nations, too.
Friday, August 22, 2014
Prof. Arkes' response to Prof. Miller's recent Public Discourse essay ("Prof. Arkes and the Law") is up, as is Prof. Miller's rejoinder, "What Reason Can Know and What Government Should Legislate." My own thoughts on the matters under discussion are very close to Prof. Miller's. I continue to be puzzled by some of Prof. Arkes' (and others') criticisms of RFRA or of the arguments of the lawyers and judges whose have the jobs of interpreting and applying it. If the point is simply that the RFRA regime reflects premises about "religion", "belief", etc. that connect imperfectly with the Truth, then I say, "sure, but so it goes."
Here's a bit, from the rejoinder:
In my article, I argued that conferring on public officials a general power to inquire into moral or religious truths is dangerous because such people are no better than anyone else at sorting out true beliefs from false ones and they are just as likely as everyone else to think that ideas different from their own are unreasonable or perverse. Because of this, Arkes speculates that I may have “lost confidence that there is indeed a discipline of reason that may guide and restrain judges, as it guides and retrains everyone else.” Now, I have often said that I am an Aristotelian-Thomist in morals, and so there can be no doubt that I believe that reason can determine what is moral and what is immoral. Arkes’s question is helpful, however, because it highlights what I think is the central confusion in his position.
That is, Arkes consistently runs together what reason, in some abstract philosophical sense, can know, with what we can expect from the efforts at reasoning of particular human beings. The first is a question of whether certain sound arguments exist; the second is a question of how likely particular human beings are to discover and embrace these arguments. These are very different things. . .
Read the whole thing(s).
Thursday, August 21, 2014