Thursday, April 30, 2015
As so many generous contributors to MOJ have already recorded here, the Ninth Annual Scarpa Conference, held at Villanova Law last week, offered a welcome opportunity to ponder, probe, and pray about (and for) that for the sake of which those engaged in "Catholic legal theory" are laboring. I remain overwhelmed by the gifts that true generosity of intellect and spirit delivered one week ago.
MOJ has served for more than a decade now as a crucible for refining both questions and answers about what Catholics who care about the common good, and therefore about law, should be doing. My own sense, reached with sadness but openness, is that true care for the common good today cannot shrink from acknowledging that the Church labors in the throes of a crisis. We can (and must) debate and determine the sources and causes of the crisis, but crisis it is, and any refusal to acknowledge the crisis for what it is should be prepared to demonstrate, beyond a reasonable doubt, how (with a few exceptions) the unwinding of the institutional Church from shore to shore gives witness to that "new springtime" one hears about all the time. I comprehend that souls can be saved even as institutions collapse, but where, exactly, is the evidence of spring in the visible life of the Catholic Church in the United States?
My principal point at the recent conference at Villanova was that Catholic legal theory worth its salt must recognize and fathom, first, what the culture needs, for the salvation of souls, and, second, how the Church's ministers must re-shoulder a burden that was sidelined by a bizarrely elitist preference (since 1965 or so) for "dialogue" instead of evangelization undertaken in the fullness of charity.
Catholic legal theory must start from what the world needs, and my submission is that what the world needs from the Church is, first (and last), a Church who cares more visibly and effectively for the salvation of souls, rather than so much about (say) equal wages for equal work (no doubt a matter of great importance for the jurisdiction of the civil ruling authority). In my view, Catholic legal theory isn't worth the name Catholic unless it be about saving souls, and the salvation of souls begins, if at all, in this world and under its principalities.
In his paper at the recent Scarpa Conference, Patrick Brennan (here) bracingly argued that the Church is in crisis, engaged in a process of “autodemolition . . . through relentless novelty,” a process that has been ongoing since the Second Vatican Council through to the papacy of Pope Francis. In his paper Patrick noted how even Pope Paul VI recognized this crisis, concluding that “the smoke of Satan had entered the temple of God.” Patrick urged Catholics today to eschew the "spurious optimism" that so often greets the facts that demonstrate this crisis.
My assessment of the Council may differ somewhat from Patrick’s (e.g. it has, I believe born genuine fruit) but this is not to deny that the faith has been in crisis during the post-conciliar era, and this notwithstanding the remarkable efforts of Paul’s successors, John Paul II and Benedict XVI. A variety of factors account for this crisis, the most significant of which is (I believe) the catastrophic failure in catechesis that took place in the wake of the Council – a failure that affected both those directly subjected to it and their progeny.
Paul VI was not the only one to recognize that a crisis was in the works. In conducting some archival research for our book on the history of Catholic law schools, Lee Strang and I came across a newspaper article reporting on a speech given by, Rev. Robert J. Henle, S.J., president of Georgetown University, to an alumni dinner in early 1971, an article that was circulated among Jesuit university administrators. Father Henle’s remarks plainly indicate that Catholic educators knew they were dealing with a crisis:
When we accepted freshman in our Catholic colleges 20 years ago, we assumed they were, for the most part, solid in their faith. They were Christians in practice and belief, and they recognized sin even whey they committed sin. Our problem in the colleges and universities was to put intellectual substance into their belief, to ground it and found it rationally, to give them an intellectual control over their internalized system of values.
But we can no longer do this. We have to assume that it doesn’t make any difference what Catholic high school they come from or what Catholic homes they come from. We have to assume that the majority of our freshman come to us already with a crisis of faith.
Our task is not to elaborate the faith into a rational system, to give it substance, to expand it, or increase it. Our problem is a missionary problem: to reestablish the faith, reestablish their belief, to help the young people find and internalize a sound system of values for themselves. The present problem of Catholicism with regard to most of our young people is to reestablish some belief in fundamental values and to work toward some kind of a basic consensus with regard to values. The conflict which our young people have seen in their parents between a secular set of values, money, the good life, the Playboy philosophy, and a religious set of values (Mass on Sunday, Christian words, statements) has been devastating to many of our young, and they move in both directions.
So we have in this country, and in the Western world, a real crisis with regard to fundamental convictions. I doubt very much that we can find any period in history in which this was true to the same extent. It is perfectly true that in the middle of the 16th century the confusion about religious faith, due to the Protestant Reformation and the Counter-Reformation, was widespread in Europe. But even underneath that kind of difficulty were some fundamental Christian and moral acceptances that Lutherans, Catholics, Calvinists, Presbyterians and Anglicans would all accept. I don’t think we have any kind of unified acceptance anymore. This is one of our very basic problems that is going to haunt us for a long, long time and for which none of us has yet found an adequate counter-ploy. We are working at it, there is hope, but we really haven’t found a way to handle this position.
It appears that, in 1971, Father Henle attributed the crisis primarily to cultural forces rather than to the innovations introduced by the Council, but he still saw it as a crisis that undermined the practice of the faith. To recognize the crisis is one thing. It is, however, worth pondering whether the steps taken by Georgetown and other Catholic universities in response to this crisis (the “counter-ploy” to which Henle refers) were well chosen: the method of “dialogue” that Patrick bemoans in his paper in contrast to the clear but loving presentation of the faith in its integrity together with the intellectual tradition that supports it. And indeed, it is well worth pondering whether the choice of methods now practiced work to correct this crisis or to sustain it.
April 30, 2015 | Permalink
Prof. Carl Esbeck has a thoughtful piece up at Public Discourse called "Redefining Marriage Would Erode Religious Liberty and Free Speech Rights of Citizens and Churches." A bit:
. . . [A] decision declaring state marriage laws void for animus would disparage those religious organizations and persons who believe deeply in marriage. Such a decision would stigmatize them as bigots akin to racists. That stigma would impede their full participation in democratic life, as their beliefs concerning marriage, family, and sexuality are placed beyond the constitutional pale. Because religious people cannot renounce their scriptural beliefs, a finding of animus would consign believers to second-class status as citizens whose doctrines about vital aspects of society are deemed presumptively illegitimate. The misattribution of animus would deprive believers and faith communities of their rights to the free exercise of religion, free speech, and democratic participation. Assaults on religious liberty, already under pressure, would intensify. . .
I made a similar suggestion in Commonweal, in this piece, after the Windsor decision.
That's the title of my short contribution to the wonderful Scarpa Conference that Patrick organized (many thanks, Patrick). Here's the opening:
I’m a Protestant, a mainline Protestant, an Episcopalian even. But for ten years I have been the non-Catholic “participant-observer” at the Mirror of Justice. The other bloggers have been very hospitable to me, even though they may not have fully understood why I’m here. So that is my question for today, the one immortalized by Admiral James Stockdale in the 1992 vice presidential debate: “Who am I? Why am I here?” What does Protestantism have to contribute to the Catholic legal theory project, and why would a Protestant (or a Catholic legal theorist) care?
One of the theses is that Catholicism and Protestantism have different characteristic emphases that apply to the nature and purposes of law. Borrowing from David Tracy, Andrew Greeley, Mark Massa, and others, I describe these as "analogical" versus "dialectical." The former (characteristically Catholic) emphasizes how God is present in features and institutions of the world, including but not only the Church; the latter (characteristically Protestant) emphasizes the distance between God and human beings and worries about investing human institutions, including the institutional Church, with too much reverence of importance. And:
Protestant and Catholic traditions must, and do, find ways to sound themes that are most explicit or central to the other tradition. Instead of polemics about how the other side gets it wrong, we should recognize the other’s dominant themes in our own tradition and learn from how the other tradition articulates those themes.
More specifically, to justify a principle, practice, or institution, we need both analogical arguments and dialectical arguments. We need to show both how it facilitates humans’ virtuous capabilities and how it protects against selfishness and pretension.
... With suggestions about how to apply this to religious freedom and some other areas of law.
Wednesday, April 29, 2015
While other Justices focused more heavily on ideas of liberty and equality during yesterday's oral arguments on same-sex marriage at the Supreme Court, Justice Kennedy's questioning of the lawyer defending the state respondents' definition of marriage focused on the idea of dignity. Unfortunately, Justice Kennedy's opinion for the Court in Windsor shows him to have previously been deeply confused about the sources of dignity in a limited, republican government.
Dahlia Lithwick's write-up for Slate captures Justice Kennedy's perspective in yesterday's first argument well:
As for Justice Anthony Kennedy, if we know anything at all about him it is this: You don’t tell him what dignity is, or who has it, or how much it counts. As most Kennedy-watchers well know, to the extent that Kennedy’s vote is in play on most issues, what he is contemplating is dignity. Often balanced against other dignity. He’s the dignity-whisperer.
* * *
Later in the argument, Bursch [representing the state respondents] circles back to say, again, “marriage was never intended to be dignity bestowing.” At which point Kennedy almost bursts a pipe: “I don’t understand that [marriage] is not dignity bestowing. I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage. … It’s dignity bestowing, and these parties say they want to have that same ennoblement.”
Bursch replies that the “state is trying to figure out how do we link together these kids with their biological moms and dads when possible, the glue are benefits and burdens, but not necessarily dignity.” Anthony “Dignity” Kennedy can’t even believe it: “Well, I think many states would be surprised, with reference to traditional marriages, they are not enhancing the dignity of both the parties.” It seems to me that nobody puts Dignity Kennedy in the corner. Not even Michigan.
It is, of course, degrading to Justice Kennedy to be spoken of in this way. But is it inaccurate? Irreverent, sure. But not inaccurate. Indeed, there is something already degraded about the Supreme Court as an institution when one arguably requires such irreverence to accurately account for the dynamics of oral argument as Lithwick has done here.
As for the "ennoblement" that Justice Kennedy believes the state confers through its marriage licenses, one might note somewhat pedantically that one cannot take ennoblement-through-state-marriage-law too literally as a proposition of law. After all, Article I, Section 10 provides that "No State shall ... grant any Title of Nobility." And nobody thinks (or ought to think) states have been violating this constitutional prohibition by conferring the designations of "husband," "wife," and "spouse" on individuals.
More fundamentally, and more to the point, as I previously wrote in criticism of Justice Kennedy's opinion in Windsor, the State does not confer dignity:
Properly understood, the State can undermine or promote human dignity through its laws (and in many other ways as well), but the State does not "confer" dignity. Once one assigns to the State a power that it is neither authorized nor suited to exercise, the boundaries that one then seeks to place around exercises of that power risk being arbitrary.
If you're going to be in NYC on May 13, you might want to check out this exhibit of photography by Letizia Morinia, a 23 year old woman who, in the words of the promotional material, "happens to have Down Syndrome." It's sponsored by Communion & Liberation's Crossroads Cultural Center.
Here's a sample:
Here's the description of her work, an essay that is as beautiful as the photograph above:
What is striking about Letizia Morini’s art is the absolute value of the instant: the instant that would be inevitably fleeting if not for her camera caring enough to grab it, to “infinitize” it (in Montale’s words).
In the instant, her care, her attention move to what is small, seemingly insignificant; that which we, too busy hastily living out our “rabid days devoid of acts of love” (to quote the Italian singer/songwriter De Farbizio De Andrè), would have never deemed worthy not even of a glance. Letizia instead forces us to stop, to ‘alter time’; she uses her camera to enhance reality, to ‘reveal’ it.
Hers is a wise photography, shutter clicks never improvised but instead the fruit of a dogged passion for the thing in and of itself, a passion which becomes contagious, which by osmosis transmits itself to the eyes of the observer, wounding the heart.
Everything becomes big, absolute: A tin case of sardines is transformed into a lunar landscape; an insignificant concrete block becomes a sort of Aztec pyramid; a disarming piece of paper is a metaphor for our fragility, ruffled by uneasiness. Everything— all the possible feelings which comprise the human palette—the heart wrenching sweetness which seeps out of her portraits of children, the ferocity of a muzzle or of butchered animal carcasses, the dreamy gaze at the sky or the flowers.
Everything, Letizia tells us, is keeping a secret; everything can reveal something. Photography represents that very possibility. “You realize that in silences / things yield and almost betray / their ultimate secrets. / At times, one half expects / to discover an error in Nature, / the still point of reality, / the missing link that will not hold, / the thread we cannot untangle / in order to get at the truth.” (Eugenio Montale, The Lemon Trees).
Letizia’s pictures, however, impose a condition to those who truly want to know them: abandon. She wants to take us by the hand and help us discover that everything can be for us, forever.
Law-and-religion folks are familiar with the argument that the result and reasoning in the Bob Jones case should be extended and applied more broadly to cover other religious institutions that engage in what those who make the argument regard as invidious discrimination. It seems clear to me that, in the coming years, a variety of means -- including conditions on accreditation, licensing, grants, contracts, funding, public-forum access, and tax-exempt status -- are going to be used to bring the practices of religious institutions into what Nancy Rosenblum and others call "congruence" with the requirements of certain version of political liberalism.
With all that in mind, there was an interesting exchange in yesterday's oral arguments between Justice Alito and the Solicitor General:
Justice Alito: Well, in the Bob Jones case, the Court held that a college was not entitled to taxexempt status if it opposed interracial marriage or interracial dating. So would the same apply to a 10 university or a college if it opposed same-sex marriage?
General Verrilli: You know, I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I don’t deny that. I don’t deny that, Justice Alito. It is it is going to be an issue.
Given the way most (not all) of the arguments for same-sex marriage have proceeded, it seems that Verrilli is exactly right.
Prof. Robin West has posted a forthcoming and characteristically powerful paper, here, called "Freedom of the Church and Our Endangered Civil Rights: Exiting the Social Contract." She is responding to, inter alia, this paper of mine and this paper by Steve Smith. Here is the abstract of Prof. West's paper:
In this comment I suggest that the “Freedom of the Church” to ignore the dictates of our various Civil Rights Acts, whether in the ministerial context or more broadly, created or at least newly discovered by the Court in Hosanna-Tabor, is a vivid example of a newly emerging and deeply troubling family of rights, which I have called elsewhere “exit rights” and which collectively constitute a new paradigm of both institutional and individual rights in constitutional law quite generally. The Church’s right to the ministerial exception might be understood as one of this new generation of rights, including some newly recognized by the Court over the last two decades, some with a slightly older lineage, and some sought after but not yet won by litigants — the point of which is to exempt their holders from legal obligations which are themselves constitutive of some significant part of civil society and to thereby create, in effect, separate spheres of individual or group sovereignty into which otherwise binding legal norms and obligations do not reach. They are “rights to exit” civil society and the social compact at its core, or at least, rights to exit some substantial part of it.
All three papers are set to be published in a forthcoming volume, edited by Chad Flanders, Zoe Robinson, and Chad Flanders. In my own contribution, responding specifically to West, I write:
In Robin West’s bracing and eloquent chapter, she expresses serious concern by the asserted “right of churches and church-affiliated institutions . . . to be exempt, on grounds of institutional religious liberty, from some otherwise binding legal obligations, including the obligations to comply with the antidiscrimination mandate of our various Civil Rights Acts when hiring, promoting, or firing those of their employees who quality as ‘ministers.’” These obligations, she emphasizes, “are no small thing. . . . [They] collectively constitute, rhetorically, our shared societal commitment to rid our workforce and our schools, and therefore our larger social world as well, of discriminatory animus and the effects of that animus; they are a public declaration of our collective promise to become a less insulting, less hurtful, more inclusive, more fully participatory, more generous, and fairer society.” To violate these obligations is not only to harm an individual; “[i]t is also to break faith with and to undermine the shared national project of creating a world of equal opportunity and full participation[.]” In her view, “it is not at all clear why our nations ministers, rabbis, and imams . . . should not be drawn from the full and diverse American public . . . , no less than are our nation’s public and private school teachers, police forces, firefighters, professors, health-care professionals, service providers, and retail, factory and construction forces.” The ministerial exception, in her view – and, more generally, the proposed “freedom of the church” – is an example of a “newly emerging and deeply troubling family” of “exit rights . . . , the point of which is to exempt their holders from legal obligations which are themselves constitutive of some significant part of civil society, and to thereby create, in effect, separate spheres of individual or group sovereignty, into which otherwise binding legal norms and obligations do not hold.”
West’s indictment of my (and others’) position regarding the religious-freedom rights of religious institutions and the implications for government regulations of some of those institutions’ internal, doctrinal, educational, liturgical, ministerial, and expressive affairs is clearly and forcefully set out. Her negative evaluation of the position rests, though, on assumptions that I reject and that I also regard as not well supported in our history and traditions.
Notwithstanding her repeated invocation of “our” commitments, declarations, obligations, projects, and aspirations, West’s social contract—insofar as it is asserted to include terms that commit religious communities to submit internal decisions regarding doctrine and polity for approval by political majorities—is a contract of adhesion. The issue in, say, Hosanna-Tabor is framed in terms of efforts by would-be “miniature sub-cultural worlds” to “exit civil society, and the complex of laws, tradeoffs, and reciprocal rights and obligations that in turn constitute some aspect of our society’s legally constructed social contract.” As I see it, though, the question under consideration is precisely whether or not this “complex” and this “contract” can justifiably, and consistently with our Constitution, history, and traditions, be said to extent to the relationship between a minister and a church. When West says that “it is not at all clear why our nation’s ministers, rabbis, and imams . . . should not be drawn from the full and diverse American public,” part of the answer is that the “ministers, rabbis, and imams” are not “our nation’s”; they are their respective communities’ and it is up to those communities to decide how and from where they should be drawn. The “freedom of the church” claim is not that these institutions should escape from an obligation that expresses “our” commitment to equal opportunity or “communitarian ideals of inclusiveness, participation and integration” but that they cannot justifiably be said to be under an obligation to select their ministers, teachers, doctrines, and beliefs in accord with commitments other than their own.
In West’s chapter, she acknowledges that some exit rights, sometimes, “empower individuals to buck the dictates of an oppressive majority or an intrusive state.” “At least some of these rights,” she states – the right of the pregnant woman over body, for example – “may seem wise, at least to some of us, and at least some of the time: the parts of the social contract from which exit is sought and sometimes granted often appear to be, and may in fact be, foolish, draconian, or just witlessly intrusive.” Still, she insists, exit rights have costs—they can undermine equality and “splinter civil society”—and these costs should be but, she charges, are not acknowledged by those who explore and defend the “freedom of the church.”
As I tried to establish earlier in this chapter, though, it seems to me that the “freedom of the church,” reasonably understood and operationalized, does (or at least can) serve to “empower individuals to buck the dictates of an oppressive majority or an intrusive state.” It does (or at least can) serve, contrary to West’s claim, to “enhance individual liberty within civil society by expanding or deepening the rights of individuals to participate in that society.” It is true that seeing and respecting the just limits on the political authority’s ability to define, and enforce compliance with, “our” commitments and obligations does have, sometimes, costs, in that some projects that a majority, or maybe just a vanguard, would like to pursue cannot be accomplished efficiently or completely. West sees this fact as, sometimes, “tragic” and I agree that sometimes it is. Still, these just limits are morally necessary and attractive, and they include, in my view, limits on the regulatory power of governments over the “freedom of the church,” rightly understood.
Tuesday, April 28, 2015
My remarks at the Ninth Annual Scarpa Conference were a (mostly) connected series of reflections on how it might matter to the Mirror of Justice project that the blog is constituted by the contributions of (mostly) Catholic legal theorists.
I can’t do justice with the written word to the content of my oral reflections—which began, not incidentally, by appealing to the conference attendees’ mercy. But if I had to relate my primary theme to a contemporary pop song, I would use “Glass” by Thompson Square.
My basic claim (in law professor speak) is that our public participation in the life of the Church, too, can serve through God's grace to illuminate matters for others, if we cooperate. My organizing text was an excerpt from from Pope Benedict XVI’s Introduction to Christianity:
Augustine relates in his Confessions how it was decisive for his own path when he learned that the famous philosopher Marius Victorinus had become a Christian. Victorinus had long refused to join the Church because he took the view that he already possessed in his philosophy all the essentials of Christianity, with whose intellectual premises he was in complete agreement. Since from his philosophical thinking, he said, he could already regard the central Christian idea as his own, he no longer needed to institutionalize his convictions by belonging to a Church. Like many educated people both then and now, he saw the Church as Platonism for the people, something of which he as a full-blown Platonist had no need. The decisive factor seemed to him to be the idea alone; only those who could not grasp it themselves, as the philosopher could, in its original form needed to be brought into contact with it through the medium of ecclesiastical organization. That Marius Victorinus nevertheless one day joined the Church and turned from Platonist to Christian was an expression of his perception of the fundamental error implicit in this view. The great Platonist had come to understand that a Church is something more and something other than the external institutionalization and organization of ideas. He had understood that Christianity is not a system of knowledge but a way. The believers’ ‘We’ is not a secondary addition for small minds; in it a certain sense it is the matter itself—the community with one’s fellowmen is a reality that lies on a different plane from that of the mere ‘idea’. If Platonism provides an idea of truth, Christian belief offers truth as a way, and only by becoming a way has it become man’s truth. Truth as mere perception, as mere idea, remains bereft of force; it only becomes man’s truth as a way that makes a claim upon him, that he can and must tread.
Thus belief embraces, as essential parts of itself, the profession of faith, the word, and the unity it effects; it embraces entry into the community’s worship of God and, so, finally the fellowship we call Church. Christian belief is not an idea but life; it is, not mind existing for itself, but incarnation, mind in the body of history and its “We”. It is, not the mysticism of the self-identification of the mind with God, but obedience and service going beyond oneself, freeing the self precisely through being taken into service by something not made or thought out by oneself, the liberation of being taken into service for the whole.
I am, of course, no Marius Victorinus. (Assuming, that is, that he was all he was cracked up to be. One critic has suggested that “Victorinus acquired for a long time a reputation hardly merited by his contributions to learning, which did not rise above the mediocrity of the period.” W.S. Teuffel, History of Roman Literature, Eng. Tr., ii., pp. 337 f., quoted in F.F. Bruce, Marius Victorinus and His Works, The Evangelical Quarterly 18 (1946): 132-53. That may be a more attainable resemblance, however unfair it might be to Marius Victorinus.)
Whatever our abilities, we can reflect the divine light in various ways. And we should try. We may not be the perfect mirror, like Mary, but we can let light shine through even if refracted or broken up in various ways. Sort of like this guy (even if not as intensely or brightly):
I concluded my Scarpa Conference reflections by observing that "We are fragmented; we are broken. We are not the light, but we can come together and reflect the light ... even if we could always use more polish."
Echoes of this understanding could then be heard in the closing prayer that the conference presenters offered up in a reflection session led by Susan Stabile. That prayer, by Cardinal John Henry Newman, included the request: "Stay with me, then I shall begin to shine as you do, so to shine as to be a light to others. The light, O Lord, will be all from you; none of it will be mine; it will be you shining on others through me. Let me thus praise you in the way you love best, by shining on those around me."
As I conclude this post, it is appropriate to acknowledge its difference in tone and emphasis from almost everything I have posted in the past. I more often stick to the safer path of arguing about the law, and that is typically of more interest to the internets anyway. One of the challenges of opening up a little window into the ideals and inspirations I have as I blog about legal topics from a Catholic perspective is an awareness of how much I fall short of those ideals and inspirations. Linking myself up to them publicly risks lowering these ideals and inspirations through association with my imperfect embodiment of them. Through a slight remix and transposition from the love song that it is to a message from me to the internet, it is perhaps fitting to conclude with some lyrics from "Glass":
We might be oil and water, this could be a big mistake,
We might burn like gasoline and fire,
It's a chance we'll have to take.
* * *
I'll let you look inside me through the stains and through the cracks
And in the darkness of this moment you see the good and bad
But try not to judge me because we walk down different paths
But it brought us here together so I won't take it back
* * *
We may shine; we may shatter; we may be picking up the pieces here on after.
We are fragile; we are human; and we are shaped by the light we let through us.
And we break fast, 'cause we are glass.
'Cause we are glass.