Mirror of Justice

Bishop Kevin Rhoades on the Indiana RFRA controversy

Here is a very good opinion piece by my local bishop, Bishop Kevin Rhoades, on the recent controversy in Indiana surrounding the enactment, and quick revision, of a RFRA-type law.  (I weighed in here and suggested, among other things, that critics were misunderstanding or misrepresenting the law's content and probably effects.)  Bishop Rhoades writes, among other things:  

Where does the Catholic Church stand? I think it is important to recall the important teaching of the Second Vatican Council in its Decree on Religious Liberty. It declares that “the human person has a right to religious freedom. Freedom of this kind means that all people should be immune from coercion on the part of individuals, social groups and every human power so that, within due limits, nobody is forced to act against his or her convictions nor is anyone to be restrained from acting in accordance with his or her convictions in religious matters in private or in public, alone or in associations with others. The Council further declares that the right to religious freedom is based on the very dignity of the human person as known through the revealed word of God and by reason itself. This right of the human person to religious freedom must be given such recognition in the constitutional order of society as will make it a civil right.” The Council further teaches that “the exercise of this right cannot be interfered with as long as the just requirements of public order are observed.”

The Church believes and teaches that the right to religious freedom is founded on the very dignity of the human person. It is not an “absolute” right in that there are “due limits” and “just requirements of public order.” It seems to me that the RFRA laws are in accord with this teaching of the Church. They seek to protect our religious liberty, while also allowing for exceptions when it comes to a “compelling government interest,” since the Church also speaks of “due limits.” The “common good” would be such a limit. . . . 

Hobby Lobby and the Annunciation

Without giving away too much about the title of Marc's post, "Unde Origo Inde Salus," I thought I would pass along something I meant to mention in passing during my Scarpa Conference talk, but did not. The missed moment came in my discussion of some quotations from Redemptoris Mater, which I noted on my slide was promulgated on March 25, 1987. As it turns out, March 25 was also the date of oral arguments in the Hobby Lobby and Conestoga Wood cases. I will leave it to others to judge what connection (if any) there may be between those arguments and the first joyful mystery of the rosary. For whatever it's worth, it probably has nothing to do with anything that twenty-seven (the number of years between Redemptoris Mater and Hobby Lobby/Conestoga oral arguments) is a perfect cube.

Unde Origo Inde Salus

A wonderfully interesting post on the cultural and religious life of Venice by my colleague and partner in crime, Mark Movsesian. A bit from his post:

I’ve been thinking a great deal about Venice, lately, ever since I visited last month to participate in an international law and religion moot court competition. In its glory, Venice was a city devoted to commerce. Just as in today’s New York, you could find anything for sale. The city pioneered credit-financed capitalism and grew fabulously wealthy on trade with Byzantium and the Levant. And, as Voltaire’s theory would suggest, the Venetian Republic was quite tolerant of religious difference, especially for the time. The city had significant colonies of eastern Christians like Greeks and Armenians; Lutheran Germans; Muslim Turks; and of course Jews. All made fortunes trading peaceably in Venice.

And yet, as I learned, Venice had a compensating commitment to tradition. The city balanced devotion to the fluid world of commerce with an equal devotion to the static world of custom. As Peter Ackroyd explains in his marvelous book, Venice, Pure City (2009), Venice was “the most conservative of societies.” In law and government, ancient usage had preeminent authority, more than positive legislation. Social interactions followed patterns that did not change. For example, strict rules limited what different classes could wear. Patricians wore stiff black gowns, which highlighted gravity and authority, not flexibility and cosmopolitanism. In architecture, generation after generation followed old models. When buildings collapsed, Venetians would reconstruct them exactly as they had been, often using the same materials. Come era, dove era.

And Venice was exceptionally religious. The city’s enthusiastic participation in the Crusades is well known, and was always a matter of great pride. One could dismiss Crusading as a search for more loot, but for Venetians it was more than that. Venetians were genuinely devout, perhaps excessively so. Hundreds of churches shared a very small space; religious processions were numerous and frequent.  Reports of miracles were common; only Rome had more. This is not to say that Venetians were saints. They never lost sight of the main chance. But Catholicism was a centerpiece of their identity. Ackroyd sums it up best: “Machiavelli wrote that ‘we Italians are corrupt and irreligious beyond all others.’ That was not true of the Venetians. They were corrupt and religious.”

See the rest of Mark's post for the meaning of the title of this one.

Scarpa Conference's Summer Reading Challenge

Rick's tour de force in summarizing the presentations at Friday's Scarpa Conference at Villanova conveys a sense of why we are all so grateful to Patrick Brennan for bringing us together.  However, he stopped blogging too soon.  The most dramatic event was the dinner afterwards, when Patrick and John Breen almost came to fisticuffs over whether Evelyn Waugh's Brideshead Revisted, or Graham Greene's The Power and the Glory, is the quintessential Catholic novel.  (Susan Stabile tried to broker a compromise with Dostoevsky's Brothers Karamozov, but she didn't make much headway.)

So we're suggesting a virtual summer book club.  Some of us may read, or re-read, (or watch the movie versions of) any or all of those three books over the summer, and post our thoughts.  The winner (if one emerges) will get to hear Michael Scaperlanda's defense of Godfather III as the best of the Godfather movies......

Evangelii Gaudium and Catholic Legal Theory

Thanks to Rick for his faithful posts of the presentations at Friday's Scarpa conference.  It was a wonderful gathering at so many different levels and I am grateful to Patrick Brennan and our other friends at Villanova for hosting us.

As Rick described in one of his posts, my contribution to the day was a talk on Evangelii Gaudium and Catholic Legal Theory.  As I said during my presentation, Pope Francis' Apostolic Exhortation offers a series of thoughts that I think help inform our effort to develop a Catholic Legal Theory and provides us with some  significant themes that can help us reflect on what should be our foci and how we engage in this task. 

I posted my remarks on my webpage, and you can read them here.  I always think I will have more time than I do when I present at conferences, so not everything that appears in the text made it into my talk. But hopefully those interested in our project who were not able to be with us might find something of benefit in it.

Roundtable, "The Catholic Legal Theory Project: Concept and Goals"

The Scarpa conference is winding down with a Roundtable conversation, involving all ten (!) of the participants.  For starters . . . is there a tension between, on the one hand, talking about "creating conditions" for exploring ideas and, on the other, Patrick Brennan's critique of "dialogue" as that term is sometimes used.  Rob and Marc say, "not necessarily."  One can emphasize the importance of "exchange of ideas" in the educational context (and the law-school context) while at the same time sharing Patrick's concern that "dialogue" becomes, as he put it, the object of "worship" rather than a way of interacting and a means to or method for an end.

But, for the law, anyway . . . what is that end (Tom asks)?  Is it the goal or purpose of human law to bring people, in Patrick's words, to "salvation in Jesus Christ?"  It is, Patrick insists, to "create conditions" -- to the extent circumstances permit -- "conducive to the supernatural common good."  Shifting to law schools, Michael Moreland says that the project of Catholic law schools cannot be entirely a project of evangelization; academic excellence will and does matter.  At the same time, as John Breen and others emphasized, "academic excellence" should not be understood entirely apart from the Catholic mission and character of these schools. 

What is the role, post-2008, of the Catholic legal scholar, doing Catholic Legal Theory, at a Catholic law school?  (Dean) Rob Vischer takes this as an important and difficult question.  Our scholarship has to matter to (even if not only to) the student experience and students' success and outcomes.  Otherwise, it is difficult to justify the use of (in effect) students' resources to subsidize that scholarship.  Patrick responds by noting that no one forces students to pay for legal scholarship; they can attend schools where faculty are not expected to engage in scholarly activities and work.  (He then illustrates and elaborates with some stories about Henry Monahan.)   And, Marc and Lisa recalled ways in which their scholarship -- in Law and Religion, or in Catholic feminist theory -- enriched their teaching and relationships with children.

Tom Berg recalled to Rob Vischer the fact that he (Rob) had said in his own talk that the value of Catholic Legal Theory is that it is true.  That's reason enough -- more than! -- for faculty to engage in such scholarship.  And if a socialist can be expected to subsidize Law and Economics scholarship, there would not seem to be anything strange about expecting law students to pay also for the scholarship of those who are engaged by and with Catholic Legal Theory.  (Marc wonders, though, if a line of inquiry has to be true, or believed to be true, in order to be a worthy academic endeavor.)

Michael Scaperlanda shifted gears . . . what does this project mean outside the law schools, in practice and for practitioners?  A member of the audience suggested that maybe we should, in law schools -- in order to better prepare advocates -- spend more time understanding the actual substantive claims, including religious claims, that will often motivate clients.  As Kevin notes, though . . . it is not always the case (perhaps not even often the case) that the faculty in Catholic law schools are equipped to prepare students in this way.  Sounding a similar note, Michael Moreland warned about "extrinsicism" in the treatment or introduction of "Catholic" materials.  But again . . . what is the "impact" of Catholic Legal Theory on the practice of law?  Marc suggests there isn't much, in terms of how one files one's briefs, etc.  But . . . what about how one balances one's work and personal life, how one treats one's family and friends (and clients and co-workers)?  Here, the impact can be real and significant.  Patrick, recalling Judge Noonan's work and example, noted that Catholics have particularly good reasons for understanding and appreciating what law is and does to people (see Persons and Masks of the Law) and so he thinks that highlighting the human and personal dimensions of these materials is a good way to be a Catholic law teacher.

Now . . . what about Mirror of Justice?  What's it about?  What's it for?  What has it done and what could it do better?  (One suggestion:  More Chesterton!  Indeed.  And more cowbell?)  Does it have value and, if so, what it is?  Michael suggests that, perhaps, the blog sometimes lacks a focus (or when focus comes, it's on particular elections).  Susan hopes we can find more ways to get active discussion and dialogue going among the bloggers.  Rob wonders if the blog-form is being eclipsed by even more "short form" media -- A 500 word post takes a lot more time to write, and to read, than a 140 character Tweet.  John points out that, despite the blog's opening post, the substantive focus of the blog has perhaps narrowed (maybe in response to the times and events) to religious-freedom questions.  Lisa also recalled that part of the "original mandate" was not to zero in on First Amendment questions or "hot button" social issues.  Of course, as Marc pointed out ("pedantically," he says), the blog (like any blog) needs content.  ("Feed the beast!")  This need makes it the case that it's better for people to feel free to post -- and to actually post -- in a kind of free-form and fresh way.  Kevin observed that people sometimes miss the fact that blogs can be about "quick hits" or about stay-a-while engagement.  And . . . the content stays "out there," for a while, and people might find the thoughts we leave years later.

Thanks very much to Villanova, to John Scarpa, and to Patrick Brennan for hosting!

 

Bishop Braxton on racial justice

Changes in laws and practices governing civil rights have often been advanced by members of the faith community, both lay and religious. In a speech given this week at Georgetown, Bishop Edward Braxton challenged Catholics to make our churches more welcoming to people of color, and for religious leaders “to take a more active role in bridging the racial divide, especially between young African-American men and white representatives of the law." More of Bishop Braxton's reflections on how the Church might foster racial unity--as well as his thoughts on recent officer-involved deaths of African American men--can be found in his recent pastoral letter The Racial Divide in the United States: A Reflection for the World Day of Peace 2015.  

Walsh on Marius Victorinus (!) at Mirror of Justice

Last but not least . . . Kevin Walsh on "Marius Victorinus at MOJ."  He opens with Judge Noonan's rule for dealing with religious-freedom scholarship and scholars, namely, that they and we are all situated persons with genealogies, histories, commitments, goals, etc.  So . . . Kevin blogs.  How is blogging -- at Mirror of Justice in particular -- relevant to "professing law"?

Kevin then did a close analysis of MOJ's opening post and "mission statement" and emphasized (drawing on, among other things, Ratzinger's Introduction to Christianity) the "Marian strand" of that mission.    And, he asked, why might it be important to a group of Christian law professors that St. Augustine was moved and inspired by the fact (see Confessions) that the philosopher Marius Victorinus became a Christian?  For us, as for Victorinus, the "idea alone" is not enough; he (and we) need the Church, which is not just an organizing principle for ideas.  And, maybe it matters to people -- those who read what we write or learn from us in classes -- that we participate (and are known to participate) in a community and that we "reflect some light into the dark places of this world."

Kevin closed with a nice remembrance of Dan Markel who -- in Will Baude's words -- "made you a little more fearless when he took your ideas seriously."  We can do that for each other (and he used his own area of federal jurisdiction as a possible example of where this can happen).

 

Stabile on "Evangelii Gaudium and Catholic Legal Theory"

Susan's remarks on Evangelii Gaudium fit nicely with Michael Moreland's earlier talk on "Pope Francis and the Project of Catholic Legal Theory."  A crucial starting point:  Our work to develop a Catholic Legal Theory is not and cannot be separate from the Great Commission, from the mission of evangelization to which all Christians, like the Church, are called.

Susan starts with the word "joy" -- which appears more than 100 times in the document -- and reminds us that Pope Francis has insisted that all we do as Christians -- and this would include the development and study of Catholic Legal Theory -- must be animated by joy.  This is relevant to questions, for example, about how we do what we do.  Relatedly, we are called to be "beacons of hope in troubled times."

Also, it's not enough to learn or write about Christ; it is essential to encounter Him.  Another theme in the document is the communal, and not only the solitary, nature of that encounter.  So, do we Catholic legal scholars do all that we can and should to collaborate and cooperate?  Additionally, "who do we speak to, and how?"  We cannot speak only to ourselves, in small circles of friends.  We have to run the risks that come with face-to-face encounters with others, and the risks of suffering that can come as a result of personal attacks, and the risks of the distortion that will sometimes hamstring our efforts.

Another, unifying or overarching, theme:  Mercy, as the greatest of the virtues.  Justice is part of the picture, and must be tempered by mercy.

 

DeGirolami on "Tradition and Catholic Legal Theory"

Marc DeGirolami -- very fittingly -- is talking about the subject of "tradition and Catholic Legal Theory."  He is focusing on a particular challenge, i.e., the fact that Catholic Legal Theory is often regarded, discussed, and presented as part of a "tradition" but . . . fewer and fewer people actually know what that particular tradition is or, indeed, what a(ny) "tradition" is.   "What do we mean by 'tradition' when we invoke it?"  Are we speaking sociologically, historically, normatively . . . ?

Another question:  How much skepticism should we introduce, in our work or to our students, regarding the very idea of tradition and its moral force?  Marc suggests a role for Catholic legal scholars, namely, that they can and should help students to appreciate that "tradition," actually, is not "utter bunk."  We have to create conditions in which the claims and goods of tradition can get a hearing.  We praise innovators -- destroyers! -- and not caretakers and stewards.  (RG:  Interesting that so many who profess to be unattracted to "tradition" are deeply attracted to "sustainability.")

More generally, Marc suggests, our work as law teachers should attend more to tradition in all courses and areas, not just Catholic Legal Theory.  Our law students are entering into a learned profession, after all, and that entering-into goes along with -- at least it should -- an appreciation of and commitment to a certain inheritance.