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.

Tuesday, December 20, 2016

The hope of Christmas and Catholic universities

For Christians, this season is a powerful reminder that we do not face the challenges of this fallen world alone. Immanuel – God with us – is an infinite and eternal source of hope, demonstrating that the Almighty Creator of the Universe cares enough about each one of us to become a baby born in a manger. As Dietrich Bonhoeffer wrote, the Incarnation reveals that “God is not ashamed of the lowliness of human beings. God marches right in . . . . He loves the lost, the neglected, the unseemly, the excluded, the weak and broken.”

God’s radical love for human beings revealed through the Incarnation provides a compelling and countercultural reason to love others as we love ourselves. Increasingly, it seems, our world defines us by our differences and implores us to care for others only to the extent that they look like, think like, or act like we do. Or at the opposite extreme, the world urges us to ignore difference and push everyone into the same consumer-driven framework, as though culture, religion, and worldview can be glossed over by maximizing economic self-interest. Both extremes contribute to what Pope Francis refers to as “the globalization of indifference.”

The Incarnation offers a better way: Christ came because of His love for human beings, and that love was not diminished by the particularity or messiness of the human condition. Christ’s love does not ignore or negate difference – it transcends difference through a radical embrace of “the other.”

The division and discord of the present day have been painfully on display this week from Aleppo to Ankara to Berlin to our own neighborhoods. We are grappling with serious concerns about the well-being of religious and racial minorities, with diminished trust in social institutions (including the Church), and with anguished questions about the continued viability of a shared vision of the common good.

Under these circumstances, we need the Incarnation more than ever. The hope of Christmas provides the foundation for a conception of solidarity as robust as the vision cast by the Church as it recommitted itself to engaging the modern era during the Second Vatican Council:

The joys and the hopes, the griefs and anxieties of the men of this age, especially those who are poor or in any way afflicted, these are the joys and hopes, the griefs and anxieties of the followers of Christ.

Solidarity is not contingent on our ability to identify similarities between us and the other, but rather, in the words of Pope Paul VI at the time of the Council, “binds us to make ourselves the neighbor of every person without exception, and of actively helping him when he comes across our path.”

So what does this have to do with the day-to-day life of a Catholic university? Everything. In Ex Corde Ecclesiae, Pope John Paul II charged Catholic universities with the task of forming “an authentic human community animated by the spirit of Christ.” That is a daunting task, to be sure, but it is, with God’s help, attainable. It will flow more from an orientation of the heart than a tactical decision of the mind. Are we ready to make ourselves the neighbor of every person without exception? And what would our campuses look like if we did?

As we approach a new year, there is plenty in the world about which to be anxious. But there is great confidence to be found in the Gospel’s reminder that God is with us. If we take that to heart, there is neither reason for despair nor time for indifference.

December 20, 2016 | Permalink

Ashley Berner on her book, "Pluralism and American Education: No One Way to School"

Over at the Law and Religion Forum, my colleague, Mark Movsesian, has an interview with Ashley Berner, professor and deputy director of the Institute for Education Policy at Johns Hopkins School of Education, concerning her new book, Pluralism and American Education: No One Way to School. Here's a bit from the conversation:

L&R Forum: You argue for “educational pluralism,” which you say is a “middle path” between state-sponsored uniformity and a libertarian, privatized model. Could you explain what you mean? How would educational pluralism work in practice?

Berner: Educational pluralism asks us to de-couple funding schools and operating schools. Thus in the Netherlands, only 30% of students attend state-funded, state-operated schools, while the rest attend schools that are funded and regulated by the state but operated by non-state institutions. Educational pluralism also requires regulatory guardrails that apply to all schools, thus ensuring some level of coherence across (for instance) content and assessments and sometimes admissions.

That’s why I think of it as a middle path: education is a public good (hence state-mandated requirements) that may be provided by a variety of civic organizations (religious or otherwise).

L&R Forum: Most Americans think that uniform public education is necessary to promote good citizenship. Yet civic knowledge among public school students is appallingly low. Why the mismatch between theory and practice? What benefits would educational pluralism offer in this respect?

Berner: Citizenship formation includes specific knowledge (How does the government work?), specific skills (How do I write my Congressperson?), attachment and participation (Why is this country/state/city worth participating in?), and tolerance (How can we respectfully disagree?). Cultivating the above requires a robust academic program and the possibility of classroom debate. Yet many of our schools – public and private – undervalue the content and skills required to engage in the democratic process. Do schools insist that all students know the basic tenets of the Constitution? Or understand the separation of powers? Or can name the capital of every state? What about actually learning a foreign language and knowing world geography inside out? Our public schools don’t even come close, and plenty of non-public schools undervalue rigorous content.

A second reason may be that many schools struggle to articulate the why’s for students, a point that James Davison Hunter’s book, The Death of Character (2000) drives home. Citizenship requires duty to something greater than oneself. In schools with strong normative cultures, the “greater than” is simply more readily available than it in a supposedly neutral school. Scott Seider’s Character Compass (2012) takes us inside three Boston charter schools whose core commitments draw upon Aristotelian, Pacific Rim, and performance ethics, each of which shapes their respective traditions and rituals.

Educational pluralism simply foregrounds the role that values and commitments play in school culture. The structure of educational pluralism does not solve the problem of citizenship formation by itself. It does, however, create space for schools that are organized around explicit normative claims. And in general, non-public schools provide richer academic content than do district schools. Put these two factors together, and the odds are that pluralizing the school system will yield better civic outcomes.

December 20, 2016 in DeGirolami, Marc | Permalink

Monday, December 19, 2016

Leiter on the need for "religious orthodoxy" to "die[] out"

In this brief, bracing blog post, Prof. Brian Leiter (Chicago) states that "Until religious orthodoxy of whatever stripe dies out, humanity will be at risk, alas."  Hmmm.  Putting on my University of Chicago green-eye-shade, I'm pretty sure that -- going strictly on the evidence, of course -- humanity's smart welfarist move, behind the "veil of ignorance" and all that, is to prefer "religious orthodoxy" to the other, rival kinds.

December 19, 2016 in Garnett, Rick | Permalink

Friday, December 16, 2016

A podcast on the "Future of Religious Liberties"

Thanks to the folks at the Federalist Society for hosting a conversation -- now a podcast, available here -- between our own Tom Berg and me about "the future of religious liberties under the new administration."  Check it out!

December 16, 2016 in Garnett, Rick | Permalink

Thursday, December 15, 2016

The Guardian of Memory


I thought I'd offer a few, rather abstract thoughts in reaction to Rick Garnett's post about health care. Abstract because health care policy makes my head spin, and (hence) I know little about it; and also because I have little to add to Rick's substantive points, which seem entirely sound to me. But Rick's discussion brings out one important point I do wish to underscore: a Catholic approach to health care policy can and indeed should be entirely comfortable with consequentialist tradeoffs and with attention to the design of optimal incentives -- within certain boundaries.

Cardinal Newman, in a mini-treatise on constitutionalism, once wrote that "no one in this world can secure all things at once, but in every human work there is a maximum of good, short of the best possible." The point applies not just to constitutions, but to any institutional system of any degree of complexity operating under conditions of scarcity; and in any event the health-care system is a kind of constitution for human well-being. Every natural-law theory of which I am aware, such as Finnis', admits a domain of prudential judgment in which it is entirely legitimate for policymakers to pursue overall well-being, subject to limited side-constraints on permissible means and on admissible motives. There is no reason in principle to shy away from incentive-based mechanisms and market-based mechanisms in the health-care system, including the sorts of incentives for healthy behavior that Rick discusses -- subject as always to the further welfarist constraint that those incentives must plausibly contribute to a maximum of overall attainable human well-being.

What, if anything, is distinctively Catholic about this picture? Beyond its undoubted function of ruling out morally impermissible means, does the Church have any further role to play in complex policy domains? Certainly it does. The best two-sentence account I have seen is a tweet (yes, a tweet) by the Abbe Grosjean, a brilliant priest of the Diocese of Versailles, who wrote that "le discernement des solutions et stratégies n'est pas le rôle des clercs. Notre rôle est de rappeler le but." (My emphasis). Figuring out solutions and strategies is not the role of the clergy; their role is to remember the purpose or goal. The Church's role in complex policy domains is to act as a guardian of memory -- a kind of conservator of original and ultimate purposes, acting to remind policy makers that the ultimate aim of the health care system is to promote the common good of human flourishing.

The practical import of that further role is twofold. First, the guardian of memory reminds policymakers of the vulnerable, those whose interests and moral standing are constantly at risk of being forgotten or discounted in the hurly-burly of conflicting demands and pressures, such as the unborn. Second, the Church stands ready to guide and admonish policy makers who, lost in the details, constantly tend to forgetfulness or myopia even when acting in the best of faith. Myopia or forgetfulness takes the form of elevating a partial or subordinate good of undoubted value -- the alleviation of pain, for example -- into an ultimate aim, in a way that distorts the system's operation and actually detracts from pursuit of the overall aim itself. Even from a consequentialist point of view, myopia results in substitution of partial for ultimate goods in a way that amounts to a form of idolatry -- something that the Church has a bit of experience combatting.

(Thanks to Fr. Dominic Legge, O.P., for helpful comments).

December 15, 2016 | Permalink

Tuesday, December 13, 2016

Linking Abortion and Climate Change

That's the title of a post at dotCommonweal that will interest MOJ readers.  You can read the post here.

December 13, 2016 in Perry, Michael | Permalink

The federal government's RLUIPA suit against Culpeper County (Va.) for denying permit to Islamic group

The United States Department of Justice filed a lawsuit yesterday against Culpeper County, Virginia. The suit alleges that the County's denial of a "pump-and-haul" permit, which had the effect of preventing the Islamic Center of Culpeper from constructing a small mosque on land it purchased in the county, violates the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). The facts alleged in the complaint add up to what look to be winning claims. If anything, I'm wondering why there hasn't also been a private suit as well (as far as I'm aware anyway).

Also, as a matter of litigation strategy, is there a good reason that the DOJ didn't also include a Free Exercise claim, something like an as-applied version of the Hialeah case? I understand that the RLUIPA claim would be much easier to prevail upon. But including a Free Exercise claim in which intent to discriminate could be in issue would open the door to more extensive discovery, which in turn could have the effect of prompting a quicker resolution.  Any thoughts? 

December 13, 2016 in Walsh, Kevin | Permalink

Mary Ann Glendon on "Reclaim[ing] Human Rights"

In case you missed it, Prof. Glendon had this helpful piece -- "Reclaim Human Rights" -- in First Things, a few months ago.


December 13, 2016 in Garnett, Rick | Permalink

Ridiculous anti-school-choice railing in the New York Times

Perhaps it should not come as a surprise from the author of a book called "The Good News Club:  The Christian Right's Stealth Assault on America's Children", and perhaps it should no longer come as a surprise on the editorial pages of the New York Times, but this piece, "Betsy DeVos and God's Plan for Schools", is an over-the-top, utterly ridiculous, innuendo-driven hit-job on school choice (and, indeed, on parents' right to choose religious schools).  It tells us almost nothing about the mainstream school-choice movement.  The Times has been running a steady stream of anti-education-reform pieces in recent days, which suggests that, notwithstanding the fact that a Trump Administration is reasonably regarded as presenting any number of risks and dangers, the Times is particularly solicitous toward the self-interest of the "education blob."

December 13, 2016 in Garnett, Rick | Permalink

The Atlantic Bishops' (of Canada) "Pastoral Letter on Medical Assisted Dying."

It's available here.  At the risk of being called "legalistic" or "rigorist" or of being accused of not "getting" Pope Francis's emphasis on accompaniment . . . I think the letter is really disturbing.  It starts out bad -- with the title -- and doesn't get much better.  What Canadian Catholics -- and, indeed, the whole world (read Chuck Lane on Europe's "morality crisis") -- need to hear at this moment is not euphemizing, but instead clarity, about euthanasia.

December 13, 2016 in Garnett, Rick | Permalink