Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, November 21, 2014

An important religious-freedom ruling in Germany

According to this report, "the German Federal Constitutional Court (Bundesverfassungsgericht) has upheld the right of churches and other religious institutions to request their employees to abide by their religious and moral ethos. The case concerned a doctor working at a church-owned hospital who was fired after he got divorced."  

November 21, 2014 in Garnett, Rick | Permalink

Matthew Rose on "Tayloring Christianity"

Charles Taylor is rightly regarded as one of the great philosophers of the age, Catholic (as he happens to be) or not. I much admired his 1992 tome Sources of the Self and regard some of his earlier papers as essential contributions to contemporary political and social theory (see, eg, the paper "Atomism" in volume 2 of his Philosophical Papers). But I found his widely renowned and commented upon A Secular Age (2009) frustratingly diffuse. I also had a hunch that the cultural diagnosis (and remedy) of my former teacher Alasdair MacIntyre was more acute but couldn't quite put my finger on the differences between Taylor and MacIntyre. Along comes my friend Matthew Rose with this splendid essay at First Things on Taylor. Here is an excerpt from Rose's conclusion, but read the whole thing to appreciate the range of his deep and critical engagement with Taylor:

The failure here is not that Taylor sets aside the authority of dogma and discourages us from entering more deeply into the wisdom of the Christian past. That’s something we’re all familiar with, not just in our secular culture that can do without the Church’s teaching, thank you, but in our own thinking as well. Taylor rightly describes our experience of modern faith as riven with contingency. Those committed to the Church have lots of interior ways to set aside the authority of dogma, even as we affirm it.

No, the failure is much greater and potentially more debilitating. By assimilating a secular way of believing with the essential content of Christian faith, A Secular Age sanctifies and makes absolute precisely what we should regard as contingent—the age in which we live. This is not to say that much of what Taylor writes about the ways secularity has altered our culture and our sense of self is wrong and should not shape academic debates. His descriptions of the secular age are compelling and deserve the wide discussion they have inspired.

But if it is true that we have reached the end of an era and now live in a secular age, it will be even more important for Christians to know what has been lost and why. This Taylor will not and perhaps cannot teach us. Instead, he makes secularism invincible to the radical criticism it most needs. Like all Hegelians, Taylor is an apologist for the present, a theologian of the secular status quo.

Alasdair MacIntyre also diagnosed our culture as fatigued by the mutual antagonisms of rival traditions. MacIntyre, however, maintained a chastened confidence in the power of human reason to guide us toward the perfected understanding that is the end of all inquiry. Our confusions and disagreements, he wrote in his Gifford Lectures, “can be a prologue not only to rational debate, but to that kind of debate from which one party can emerge as ­undoubtedly rationally superior.”

MacIntyre combated the prejudice, uncritically affirmed by Taylor, that secular modernity is a historical dispensation from which there is no intellectual escape. He called his work a “radical renovation” of classical traditions of thought. Its most important consequence has been a growing confidence that the work of human reason can be undertaken in a context broader than that of modernity.

We would do well to listen to Taylor, but apprentice ourselves to MacIntyre. For Christians in a post-Christian culture will need to think in terms of the most expansive of all temporal horizons—a time, bounded by the beginning and the end of God’s holy purposes, that Augustine, writing at the end of another ­epoch, called the saeculum.  


November 21, 2014 in Moreland, Michael | Permalink

Wednesday, November 19, 2014

Mumford on the Notre Dame Center for Ethics and Culture's Conference on Poverty

I am late posting about this, but the recent conference at the Notre Dame Center for Ethics and Culture, "Your Light Will Rise in the Darkness: Responding to the Cry of the Poor," was a superb event that reflected the best thinking from a range of disciplines on the issue of poverty. The keynote addresses by Nobel Laureate James Hickman, Alasdair MacIntyre, John Finnis, and Gerhard Cardinal Müller were rich in insights from economics, philosophy, and theology, as were the breakout sessions. I can do no better than this summary from James Mumford (University of Virginia Institute for Advanced Studies in Culture). A bit from Mumford's conclusion:

One lasting impression of Notre Dame’s “Your Light Will Rise” conference was the way that Catholic social teaching—from Leo XIII’s famous encyclical Rerum Novarum (1891) onwards—defies the left-right axis. Thus, in interview Cardinal Gerhard Müller, the prefect of the Vatican Congregation for the Doctrine of the Faith, could on one hand speak of the necessity of “facing head-on the effects of a system that places profit at its center,” while on the other emphasizing that Pope Francis’s conception of poverty “[goes well] beyond a merely economic conception of poverty.” For his part, Patrick Deneen, the political thinker who shone in the debate that closed the conference, came at capitalism from a conservative standpoint, lamenting, among other things the loss of tradition and the anonymity of markets.

This defiance of the left-right axis, so clearly on view in Notre Dame last week, suggests not only why Catholic social thought has so much further to run. It also suggests why, given how fed up a growing part of the electorate is with the level of political polarization, Catholic social thought should be increasingly heard.

November 19, 2014 in Moreland, Michael | Permalink

Being Worthy of the Dead

Today is the anniversary of Abraham Lincoln's "Gettysburg Address," delivered on this date in 1863. The address is short and most people have a dim recollection of the first few words of it. But on reading it again, I was reminded of one of its central messages--that the dead, and their efforts and sacrifices, consecrate and even redeem the living, if the living attend to and pursue the projects of the dead. The living must be dedicated to the projects of the dead, and must aspire to be worthy of the dead. A rather unfashionable message indeed in our own time:

It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us -- that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion -- that we here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth.

November 19, 2014 in DeGirolami, Marc | Permalink

Tuesday, November 18, 2014

Animus-based invalidation of really old man-woman marriage laws

I guess I should have been reading blog posts instead of law review articles. A little earlier today, Dale Carpenter published a Volokh Conspiracy post criticizing one part of Judge Sutton's rational basis analysis in DeBoer v. SnyderThe first link in that post is to an earlier VC post by Professor Carpenter about a district court decision holding unconstitutional a Michigan law prohibiting localities from extending benefits to employees' same-sex domestic partners. And that earlier post includes a discussion about the scope of animus-based arguments against legal definitions of marriage as the union of one man and one woman. After identifying five factors for an animus analysis (textual, contextual, procedural, effectual, and pretextual) and contending that they show the unconstitutionality of the state constitutional amendments that "constitutionalized marital definitions of the first time," Professor Carpenter turns to the marriage statutes that preceded these amendments. He writes: 

Even the remaining exclusion of same-sex couples from marriage reflected in longstanding state statutes may be vulnerable to animus attacks based on the other objective factors noted above. It can hardly escape notice that states have consciously and steadfastly refused to include same-sex couples in their marriage statutes, in addition to specifically excluding them through anti-SSM state constitutional amendments and through state "mini-DOMAs" that deny all recognition to married same-sex couples from out of state. A failure to include, as well as an affirmative act to exclude, may also reflect animus against a class. That is at least a question the Supreme Court may now consider.

If animus-based invalidation extends to encompass statutory definitions from the late-eighteenth and early-nineteenth century, then the remedial question asked in my prior post has an easy answer. The remedy for animus-based invalidation of state constitutional amendments defining marriage as the union of one man and one woman cannot be a return to the status quo ante because that status quo was also unconstitutional.

This expansive understanding of animus seems to present problems of its own. For example, Professor Carpenter describes animus analysis as a type of purpose-based constitutional test. But it would not have been possible to form the purpose to exclude same-sex couples from marriage at least until it was possible to conceive of marriage as potentially including same-sex unions. That may be why Professor Carpenter focuses on conscious and steadfast refusal to expand marriage definitions, which in turn would seem to raise a state action problem. In any event, I wanted to link to Professor Carpenter's posts because they contained one answer to the question asked in my last post.

November 18, 2014 in Walsh, Kevin | Permalink

Why isn't the remedy following from animus-based invalidation of more recent marriage laws return to the status quo ante?

Judicial holdings of unconstitutionality come in various shapes and sizes. And the shape and size of the judicial remedy following from an unconstitutionality holding depends in significant part on the substantive constitutional law that specifies the precise nature of the constitutional problem identified. These are uncontroversial commonplaces.

There is often room for controversy, though, over just how the relationship between right and remedy should be specified in particular cases. One aspect of Judge Sutton's opinion for the Sixth Circuit in DeBoer v. Snyder that has not received as much attention as it should is his discussion of the limited remedy that would follow from invalidation of relatively recent state constitutional amendments regarding marriage on the ground that they were enacted out of anti-gay animus. This discussion comes at the end of Part II.D of his opinion, right in the analytical middle of his examination of the constitutionality of man-woman marriage definitions. (The analysis of animus-based invalidation is in the fourth of seven sections in Part II.) But the groundwork for the argument appears in Part I, where he discusses the genealogy of current marriage law in each of the four states whose definitions of marriage were at issue.

Michigan, Kentucky, Ohio, and Tennesse each defined marriage as the union of one man and one woman well before same-sex marriage was contemplated in any state. Each of these four states also enacted a constitutional amendment locking in the man-woman definition in the first decade of the twenty-first century. Sutton contends that the argument for animus-based invalidation is limited to these constitutional amendments, and that accepting that theory of invalidation would simply return each state's marriage law to the pre-amendment status quo: 

Even if we agreed with the claimants that the nature of these state constitutional amendments, and the debates surrounding them, required their invalidation on animus grounds, that would not give them what they request in their complaints: the right to same-sex marriage. All that the invalidation of the amendments would do is return state law to where it had always been, a status quo that in all four States included state statutory and common law definitions of marriage applicable to one man and one woman--definitions that no one claims were motivated by ill will. The elimination of the state constitutional provisions, it is true, would allow individuals to challenge the four States' other marital laws on state constitutional grounds. No one filed such a challenge here, however.

This argument sounds right to me. But perhaps I misunderstand the scope of the argument for animus-based invalidation. If heteronormativity equals animus, for instance, then the argument for invalidation runs all the way down and back. But if a "go-slow" rationale for maintaining the pre-Goodridge status quo could defeat an animus argument against a state's more recent marriage amendment, as Dale Carpenter has suggested might be the case (see fn. 31) while also suggesting there may be other constitutional problems apart from animus, then codification of the heteronormative status quo in the late eighteenth or early nineteenth century is probably not vulnerable to an animus-based attack either. Hence the title of this post: Why isn't the remedy for animus-based invalidation of more recent marriage laws return to the status quo ante?

November 18, 2014 in Walsh, Kevin | Permalink

Monday, November 17, 2014

Vatican Colloquium on the Complementarity of Man and Woman in Marriage

It was an extraordinary day at the Vatican Colloquium on the Complementarity of Man and Woman in Marriage.  Pope Francis adddressed what he called the "crisis" in marriage and declared that children have a right to a family with a mother and a father.  The point was then stressed by Cardinal Gerhard Muller, Prefect of the Congregation for the Doctrine of the Faith in his address.  Pastor Christoph Arnold of the Bruderhof communities followed with a passionate defense of marriage against contemporary currents of thought that trivialize it or reduce it to something concerned mainly with the satisfactions of adults, and not with the need for children to have the care and influences of mothers and fathers in the marital bond. Rabbi Lord Jonathan Sacks then offered a brilliant account of the development of the idea of marriage as a conjugal union of sexually complementary spouses and a critique of ideologies that weaken the marriage culture, with devastating effects on the weakest and most vulnerable members of society, especially children and the poor.  His remarks were given a lengthy standing ovation. Sister Prudence Allen followed with a tightly argued philosophical defense of complementarity.  And that was just the program for the morning! We also heard moving and insightful presentations from Nigerian Anglican Archbishop Nicholas Okoh (on why African Christians will not yield to liberal individualist and relativistic ideas about marriage and sexual morality), Dr. Rasoul Rasoulipour (offering an Islamic defense of marriage as a male-female union), and the Venerable Niso Takeuchi (giving us a Japanese Buddhist perspective). Dr. Harshad Sanghrajka represented the Jain tradition and Dr. Janna Matlary, the former Secretary of State of Norway, provided an assessment of the cultural and political challenges facing those of us in the West who are determined to defend marriage as a conjugal union and rebuild the marriage culture.  Tomorrow we will hear from Pastor Rick Warren, Dr. Russell Moore of the Southern Baptist Convention, and Dr. Jacqueline Rivers, among others.

November 17, 2014 | Permalink | Comments (0)

Thoughts about a Catholic university's curriculum

Here are some comments that I emailed in, in response to a request by the University of Notre Dame's Core Curriculum Review Committee.  They connect with and echo things that various MOJ-ers have said and thought about over the years, and I thought they might be of interest:
[It] seems to me that the University of Notre Dame, given its aspiration and its vocation to be the world's great Catholic research university, should be proud, and not afraid, to affirm that there are indeed things that a student who graduates from a great Catholic research university should know.  It seems that, in some quarters, it is thought unfashionable, nostalgic, or reactionary to insist that there really are things -- propositions, names, dates, facts, arguments, hypotheses, etc. -- that an educated person should know, and should know as *true.*  We cannot think critically and well, after all, if we don't know enough to know what we should be thinking critically about.  The move at many universities, including the ones I attended, away from "core" curricula and courses to all-elective programs is often defended as liberating, but I think this move, if taken too far, is a mistake.  A Catholic research university, even one with students as gifted and accomplished as ours, should still embrace proudly the responsibility to make sure our graduates not only know how to do certain things but also *know* certain things.  And, as Richard Brodhead (the past President of my own alma mater) suggested, Notre Dame should not worry too much about doing what other top-tier research universities are doing, at least when it comes to questions about the relationship between the University's interesting and distinctive -- and interesting *because* distinctive -- character, on the one hand, and its decisions about the curricular content and moral formation, on the other.  We already have a Princeton and a Duke (and an Ohio State and an Illinois), and others like them, but there's really only one Notre Dame.   
What those things are is, of course, a question the Committee is considering and answering that question is difficult.  My point here is just that, in my view, a university like ours should have a Core Curriculum and it should care, at least to some extent, about the content of what is actually conveyed in required or requirement-satisfying courses, and not just those courses' general area (e.g., "history", or "philosophy").  If we are not willing to attend, at least to some extent, to the content of, say, the courses that satisfy the Theology, Philosophy, and History requirements, then it is arguably more difficult to justify the requirements themselves.  It is important not just that our graduates have taken a "history" course, but that they be conversant -- at the level we want citizen-leaders to be conversant -- with the basic outline of American history and of (speaking very broadly) the story of the West.  It is worth saying, I think, not just that students should take two courses in "theology," but also to say that students will be familiar with the teachings, history, traditions, and sacred texts of Christianity.  This is not because our mission is to do remedial catechesis, but because part of our proposal to the broader society, as a Catholic research university, is that Christianity is not only true, but also worth knowing about.
I realize that this way of thinking about the questions might sound a little dated.  We talk now more in terms of "competencies" and, to be sure, there are many such competencies that we want to help form in our graduates.  My suggestion here is simply that the competencies and skills should not crowd out or substitute for the content; it is important that a student know how to think critically about a text like "The Brothers Karamazov" (or the Gospel of Mark) but it is no less important that they know about, have read, (texts like) "The Brothers Karamazov" (or the Gospel of Mark).

November 17, 2014 in Garnett, Rick | Permalink

Bainbridge on CST and Usury

Prof. Bainbridge is providing nice updates and reports from the "Catholic Social Thought and the Law" seminar he's teaching.  (Lucky UCLA students!).  Here's one on "Usury."  Check it out!

November 17, 2014 in Garnett, Rick | Permalink

A new position of interest

Mirror of Justice is not a jobs-postings site, but I thought this one might be of special and particular interest:

The Catholic Benefits Association (CBA) has had substantial success in providing a means for Catholic employers to provide health care coverage consistent with Catholic values.  It and its subsidiary, the Catholic Insurance Company (CIC), are searching for their first Chief Executive Officer.  With almost 700 member employers providing healthcare coverage for their 70,000 covered employees, the CBA and CIC seek a Catholic person who can build and manage a team dedicated to providing quality, competitively-priced, morally-compliant health care benefits for Catholic employers.   In addition to excellent leadership, marketing, and management skills, the successful candidate should also have substantial experience working with employer health plans, health benefits analysis, or group health insurance.  He or she should have a heart for the Catholic Benefit Association’s mission explained atwww.lifeaffirmingcare.com.  Those interested in applying should contact Joan Rennekamp at[email protected] or 719-386-3009.

November 17, 2014 in Garnett, Rick | Permalink