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.

Monday, June 12, 2017

Why the anti-Sharia movement is (at least in the U.S.) anti-Muslim

I have an op-ed in the Minneapolis Star-Tribune explaining why it is difficult, in light of current American law, to interpret Saturday's nationwide "anti-Sharia" marches as anything other than anti-Muslim.  An excerpt:

The religious terms of an agreement do not and should not prevent courts from enforcing it. Just as the rule of law is not threatened when courts apply canon law in handling a bankruptcy case for an archdiocese or enforcing an arbitration agreement based on biblical principles, the rule of law is not threatened when Muslim litigants order their lives in keeping with their faith.


The most recent anti-sharia initiatives reflect a change in strategy — instead of forbidding courts from considering sharia law, they prohibit the enforcement of any foreign law that would result in the violation of a constitutional right. These new laws are of no practical effect — we do not need new statutes to tell judges not to violate the constitutional rights of litigants. (That’s what the Constitution is for.)


These newer initiatives may be without practical effect, but they’re not meaningless. They — like the marches convened on Saturday — are packed with meaning that is not lost on Muslim Americans. The aim of these efforts is not legal reform — it is fearmongering.

Feedback, as always, is welcome.

June 12, 2017 in Vischer, Rob | Permalink

Political Leadership in 2017 (a/k/a Defining Deviancy Down)

Senator Kirsten Gillibrand is the latest reminder of an unfortunate lesson the Democrats have drawn from President Trump's election: show your populist streak by swearing more in your speeches.

Jeet Heer now argues in the New Republic that we need more of this, not less: 

The new wave of swearing isn’t the cause of a breakdown in civility, but a symptom of a national crisis. These are dire times in the U.S. The president is a manifestly unfit kleptocrat who may have obstructed justice, but he’s not going to be impeached anytime soon because he has the support of his party. The only proper response is a full-scale attack on the political system, which requires rallying the public by letting them know just how foul things are—a task best accomplished with foul language. Trump represents an existential threat to American democracy. In this state of emergency, there’s no room for wimpy euphemisms and lofty rhetoric.

Lovely.  Nothing is off limits, of course, because we have never faced such an existential threat to our political system!  A leader could invoke "the better angels of our nature" in 1861 because that leader probably knew nothing about national division and discord.  If that leader had ever encountered a Trump-sized threat, he'd have been invoking fewer angels and dropping more F-bombs.  And why raise a hand to stop the demolition of traditional norms of civility -- norms that, I feel obliged to point out, bear no culpability for the economic dislocation at the root of our current "anti-establishment" moment -- when we can grab a sledgehammer and join in the fun?

Well, at least the election has caused Democrats to rethink their litmus test on abortion rights.  Oh wait

June 12, 2017 in Vischer, Rob | Permalink

Sunday, June 11, 2017

Also For Trinity Sunday: The Identification of the God of the Philosophers with the God of Revelation

Rublev Holy Trinity

I appreciate the point of Kevin Walsh's post for Trinity Sunday (here) in which he quotes Catherine Mowry LaCugna's book God For Us: The Trinity and Christian Life, and her contention that an adequate response to the fundamental questions posed by late modern thought "cannot [be] answer[ed] by taking refuge in the classical metaphysical properties of God," and that the only appropriate response "is for Christian theology to start afresh from its original basis in the experience of being saved by God through Christ in the power of the Holy Spirit.  The only option for Christian theology, in other words, is to be trinitarian."

I wholly agree with LaCugna's injunction that Christian theology must be thoroughly trinitarian.  And, while I confess that I have not read her book (so she very well may address this in the text) I think that her dismissal of the Church's teaching concerning the inner life of God  -- what she calls "the nonsoterialogical doctrine of God" -- is mistaken.  We must be prepared to give an account for our reason for hope (1 Peter 3:15) to explain what we mean when we say that we are "saved by God through Christ in the power of the Holy Spirit."  That is, we must be prepared to say what we mean by "God," "Christ," and "Holy Spirit." 

To reflect on "the classical metaphysical properties of God, such as omnipotence, omniscience, omnibenevolence, impassibility, incorporeality, and simplicity" is not to "take refuge" in a metaphysics divorced from God's self-disclosure to the people of Israel and in Jesus Christ.  Rather, it represents the Church's effort to know God, and to explain how the Christian God differed from the gods of the ancient world, whether Zeus, or Osiris, or some other god. 

As Joseph Ratzinger explains in his Introduction to Christianity (a beautiful and erudite reflection on the Apostles Creed that he wrote shortly after the Council), in the milieu of the pagan world, the early Church "boldly and resolutely made its choice and carried out its purification by deciding for the God of the philosophers and against the gods of the various religions" (p. 94).  Against the "deceit and illusion" of the ancient religions, the Church declared "When we say God, we do not mean or worship any of this;  we mean only Being itself, what the philosophers have exposed  as the ground of all being, as the God above all powers -- that alone is our God" (p. 95).

This movement was "the movement of the logos against myth" (Id.).  This choice was the choice of truth over custom, that is, over a preserved ritual that was "devoid of reality" and "divorce[d] from truth" (p. 97) -- for all that remained of pagan cosmology, after being subject to the critique of the philosophers, was custom "as mere furniture and outward form of life" (Id.).  Here Ratzinger quotes Tetullian who articulated the Church's position "with splendid boldness": "Christ called himself truth, not custom" (Id.).

Yet in deciding for the logos, for truth, for the God of the philosophers, the Church did not opt for a lack of religion -- for a lack of relationship, for an arid philosophical belief.  As Ratzinger explains:

"By deciding in favour of the God of the philosophers and logically declaring this God to be the God who speaks to man and to whom one can pray, the Christian faith gave a completely new significance to this God of the philosophers, removing him  from the purely academic realm and thus profoundly transforming him.  This God who had previously  existed as something neutral, as the highest, culminating concept; this God who had been understood as pure Being or pure thought, circling round for ever closed in upon itself without reaching over to man and his little world; this God of the philosophers, whose pure eternity and unchangeability  had excluded any relation with the changeable and transitory, now appeared to the eye of faith as the God of men, who is not only thought of all thoughts, the eternal mathematics of the universe, but also agape, the power of creative love.  In this sense there does exist in the Christian faith what Pascal experienced on the night when he wrote on a slip of paper which he henceforth kept sewn in the lining of his jacket the words" "Fire. 'God of Abraham, God of Issac, God of Jacob', not 'of the philosophers and scholars'."  He had encountered the burning bush experience, as opposed to a God sinking back completely into the realm of mathematics, and had realized the the God who is the eternal geometry of the universe can only be this because he is creative love, because he is the burning bush from which a name issues forth, through which he enters the world of man.  So in this sense there is the experience that the God of the philosophers is quite different from what the philosophers had thought him to be, though he does not thereby cease to be what they had discovered; that one only comes to know him properly when one realizes that he, the real truth and ground of all Being, is at one and the same time the God of faith, the God of men." (pp. 99-100).

June 11, 2017 | Permalink

Friday, June 9, 2017

For Trinity Sunday, God For Us (book excerpt)

I recently had occasion to revisit God For Us: The Trinity & Christian Life, by Catherine Mowry LaCugna. I thought I'd share a brief excerpt in anticipation of the upcoming Trinity Sunday:

Christian theism has been severely criticized of late because it is said to be projective (Feuerbach, Freud); sexist, patriarchal, and clerical (feminism); bankrupt (atheism; death of God); static (process thought); ideological (liberation theology); nonreferential (analytic philosophy). In effect, these critiques testify to the deleterious outomce of the Christian doctrine of God that is in many respects secular, constructed out of philosophy, not out of the self-revelation of God in Christ. The root of the nonsoteriological doctrine of God is its metaphysics of substance: the pursuit of what God is "in se," not what God is 'in Godself' or 'by Godself.' All of the critiques of classical theism cry out for soteriology: Can we believe in God after Auschwitz? Can a male savior save women? Does God's justice prefer the rich and powerful? Can God respond to petitionary prayer? Does belief in God inhibit the full development of human persons? Does God predetermine the fate of individuals, and is freedom illusory? All these questions are at base questions about the character, the 'who' of God. Theology ought to be able to answer them. Theology cannot answer them by taking refuge in the classical metaphysical properties of God, such as omnipotence, omniscience, omnibenevolence, impassibility, incorporeality, and simplicity, since these are the very attributes that seem dubious. The only option is for Christian theology to start afresh from its original basis in the experience of being saved by God through Christ in the power of the Holy Spirit. The only option for Christian theology, in other words, is to be trinitarian.

June 9, 2017 in Walsh, Kevin | Permalink

Thursday, June 8, 2017

Sen. Sanders Seeks to Establish Universalism

Professor Kathleen Sullivan once wrote that the First Amendment's provisions on religious freedom and equality reflect "a substantive recognition that there is more than one path to heaven and not as many as once thought to hell." To which Michael McConnell responded: "That is not the disestablishment of religion. It is the establishment of Unitarian-Universalism." (From The Bill of Rights in the Modern State 124 n.50 (U. Chicago Press 1992).

That phrase applies to Bernie Sanders' criticism of Russell Vought, nominee for deputy director of the Office of Management and Budget, for having posted online statements that Muslims "stand condemned" and "do not know God because they have rejected Jesus Christ his Son." From Huff Po:

Such a statement is “indefensible, it is hateful and Islamophobic, and an insult to over a billion Muslims throughout the world,” Sanders told the room. He asked Vought, who sat facing him, if he thinks his past comments are Islamophobic.

“Absolutely not,” replied Vought, a former vice president of the conservative Heritage Action for America. “I’m a Christian, and I believe in a Christian set of principles based on my faith. That post … was to defend my alma mater, Wheaton College, a Christian school that has a statement of faith that includes the centrality of Jesus Christ for salvation.”

Sanders interjected, “Do you believe that people in the Muslim religion stand condemned?” ...

“Senator, I’m a Christian ... ,” Vought began again.

“I understand that you are a Christian!” Sanders shouted. “There are other people of different religions in this country and around the world. In your judgment, do you think that people who are not Christians are going to be condemned?”

Vought said he respects all people and repeated that he wrote his post based on being a Christian. That was it for Sanders.

“I would simply say, Mr. Chairman, that this nominee is really not someone who is what this country is supposed to be about,” Sanders said, gathering up his papers. “I will vote no.”

Believing that one's religion is the only way to God is quite common and surely should not in itself disqualify someone from office. Making that alone the basis for disqualification violates the principles of the Free Exercise Clause, the Religious Test Clause (for federal offices like those in OMB), and the Establishment Clause--by, as McConnell pointed out, establishing universalism as the only permissible religious opinion for federal officials. 

(As I understand the context of Vought's views, he was defending Wheaton College's decision to fire Larycia Hawkins, a professor, for stating that Muslims "worship the same God" as Christians do. In that context Vought, a Wheaton alum, argued that the college could fire her because one cannot worship the same God--not even deficiently--without approaching God through Christ. My own views on that question, expressed here on MOJ, are almost certainly closer to Prof. Hawkins's than to Mr. Vought's. But the issue is not which view of God and salvation is theologically accurate; it is whether Vought should be disqualified from this office for his view.) 

Religious beliefs criticizing or condemning other faiths are relevant in some cases. It would be relevant if Vought had written that Muslims as a group cannot  be trusted as citizens because of their religion (claims we unfortunately see all too often). But that form of criticism/condemnation concerns civil status and participation, not religious salvation. The civil equality of religions under the First Amendment does depend upon officials avoiding blanket statements that members of a faith cannot be trusted as citizens, because it's short step from such statements to treating people unequally in civil matters. (Probably a short enough step to justify voting against any nominee who wrote that Muslims can't be trusted.) But Vought said that Muslim citizens are entitled to equal respect; he made clear, in his post and his attempts to answer Sanders, that he was speaking about theological not civic matters--about the nature of God, worship, and the way to salvation. And the First Amendment rests upon bracketing such theological disputes, neither punishing nor favoring people for their varying views. Without such bracketing, those with non-pluralistic beliefs on ultimate matters will themselves face civil restrictions and discrimination. A belief that another person is condemned in an ultimate sense might lead one to mistreat or disrespect them in civic matters, but surely not necessarily so. People with such non-pluralistic theological beliefs live and work with others respectfully day after day in myriad settings (partly because they believe that it is not a matter of comparative merit--that all, even nominal Christians, are condemned in an ultimate sense unless they rely on Christ).

If the nominee is to be working in a field where his or her attitude toward another faith is relevant, even a publicly expressed belief about ultimate matters could well interfere with performing the job. You certainly could vote against confirming an ambassador to Saudi Arabia who expressed Vought's view about Muslims and salvation. But unless I greatly misunderstand things, beliefs about ultimate salvation are irrelevant to ability to do the work of the OMB. Thus to vote against someone for OMB is simply a penalty on his belief, a bare religious test for a federal office, and a statement that universalism is the orthodox view on religious salvation.

Fear and prejudice toward Muslims is a significant problem in our country. But the resistance to it should take the form of guaranteeing civic equality, and countering true hate, not imposing disabilities solely for views about theological matters. Belief that a religion is false, and cannot lead one to God or ultimate salvation, can coexist with respect for the equal dignity of its members. If we assume that the two cannot coexist, we will start reinjecting the government into controversies about ultimate matters that our religious-freedom tradition has wisely sought to avoid.

June 8, 2017 in Berg, Thomas, Current Affairs | Permalink

Tuesday, June 6, 2017

JPII distinguishing nationalism and patriotism at the UN in 1995

In trying to understand Steve Bannon's outlook recently, I found myself wondering how it cohered with Catholic teaching about nations and peoples. That teaching, I think, is easier to understand than Bannon's outlook, if only because one must rely on reporting about Bannon. In any event, an important Catholic perspective on nationalism can be found in John Paul II's October 5, 1995 Address to the United Nations.

I was a sophomore in college that fall, and I remember one of my college chaplains remarking that Pope John Paul II's observations about the rights of nations were important. So I went and looked it up this evening. It's worth reading. 

Extended excerpt after the jump:

Continue reading

June 6, 2017 in Walsh, Kevin | Permalink

To Rob: It's Much Worse Than You Think

Of course Rob is right just below to put serious questions to the view that we are resolutely not to judge when it comes to professional and other cultural values, and not to "impose" "our" values on law students as we acculturate them into the legal profession.

He is right because law is all about values and their imposition on others. Law may not be command pure and simple, but much of it is command. And even the part that is not command presupposes and incorporates moral views and dispositions at every level, to include evaluations of the proper scope of moral disagreement within the profession and the culture at large. If you are not interested in good (i.e., moral) governance, law is not for you. There is no line between the values that a law instantiates that are "moral" and those that are not. They are all moral.

The trouble is that anti-legal moralism dies very hard, dating all the way in our own tradition from the fight between Stephen and Mill and right on through to the present, a fight that the legal moralists have been widely proclaimed to have lost. Many students, in particular, have been raised on a soft and not well thought-through moral libertarianism that forces and reinforces all kinds of morality onto and into students--but does so sub silentio with the pretense of not being a morality at all. That ostensible moral libertarianism in law--itself a legal moralism--infuses much of the law, including, very much, the doctrines of the First Amendment (but many others too), and much of the instruction in law school. It's time we stopped talking about moral neutrality--in law and in law school--and started talking about the way the law, and the way that law schools, do, and should (two different sets of discussion), privilege certain moral positions and downgrade others.

But that will require a good deal more than forcing clinic and other offerings--most of which do, in fact, reflect very specific ideological commitments and which are, as John McGinnis has put it, "enterprises of political action"--down the throats of students pro bono publico. It will require, first, turning a highly critical eye on the existing frameworks, and, second, forging a shared sense of pro bono publico from the fragments one can see adumbrated in the disagreement between Rob and his interlocutor.

June 6, 2017 in DeGirolami, Marc | Permalink

Monday, June 5, 2017

Imposing on law students' "moral independence"

DePaul law prof Julie Lawton has posted a new article, “Teaching Social Justice in Law Schools: Whose Morality is It?” Professor Lawton argues that “requiring law student participation in pro bono and legal clinics serving the indigent, as a condition of their graduation, is an improper imposition of my personal social justice morality upon my students.”  She explains:

When there are a limited number of legal clinics at each law school and the majority of those legal clinics are serving low to moderate-income clients, mandating legal clinics is akin to mandating participation in social justice issues, similar to mandatory pro bono service. This mandate of social justice service suggests an unwarranted imposition on a student’s moral independence.

An imposition on “a student’s moral independence?” I always assumed that one core purpose of a profession is to identify and maintain prudent impositions on its members’ “moral independence.”  If independence from such fundamental (I thought) moral claims as serving the poor is a virtue to be cultivated among our students, should we also avoid requiring them to participate in any exercise that may risk inculcating within them a respect for the rule of law or commitment to personal integrity?  And should we be urging the ABA to pull back from its insistence on imposing particular views on the wisdom of confidentiality, competence, diligence, and candor?

Should law faculty proceed carefully when teaching contested moral and political issues to make sure that students are exposed to the best arguments on all sides? Absolutely.  That's a worthy pedagogical objective to ensure that we're training critical thinkers who are effective advocates.  It's not about equipping our students for lives of "moral independence," whatever that means.  Navigating our biases effectively as teachers does not mean that a law school needs to avoid staking out a position on the basic moral norms that contribute to the animating vision for a particular school or the profession as a whole. We should be explicit and deliberate in discerning and conveying those basic moral norms.  This is (I hope) obvious for those of us who work at Catholic law schools, but the conversation about moral norms shouldn't be absent from non-religious law schools either.  Such conversations are a big part of what it means to be a profession.

June 5, 2017 in Vischer, Rob | Permalink

Some thoughts on today's church-plan case

Today, the Supreme Court handed down a unanimous ruling, in a case called Advocate Health Care Network v. Stapleton, interpreting a particular provision of the federal employee-benefits statute, ERISA. Justice Kagan's opinion is a clear, engagingly written, concise, and technically sound example of the judicial craft. It also vindicates Congress's important effort to protect the religious freedom of religious hospitals, charities, and social-welfare institutions and has clear implications for ongoing debates about these institutions' religious liberties, about the freedom of conscience in the healthcare context, and about the separation of church and state.
The provision at issue in Monday's ruling had a clear purpose: to respect the important contributions that religious institutions, including hospitals, make to the common good and to keep government officials out of the business of deciding which institutions are 'really' religious and which are not.  Congress was affirming the bedrock principle that religious freedom and exercise are not limited to private prayer or weekend worship; rather, they include providing care to the sick, the poor, and the vulnerable.
For several years, activists and class-action lawyers have worked to convince courts to interpret Congress's effort narrowly, in a way that would have imposed significant costs on religious institutions and undermined their faith-inspired social-welfare activities.  The Court's decision both affirms and embraces Congress's sound judgment, decades ago, to prevent regulators from trying to enforce a line between what 'churches' do in private and what religious institutions do in the public square.
Increasingly, it is being argued that the distinctive mission and character of religious institutions should lose legal protection when these institutions are involved in providing health care, or work to provide adoption services or foster care, or cooperate with government to solve problems of poverty, human trafficking, education, and so on.  Many believe that these institutions should not be allowed to object, as a matter of religious conscience to -- for example -- providing abortions or abortion referrals.  And while it is primarily the job of Congress and other legislators to protect these institutions' religious-conscience rights, today's decision by the Court is a welcome and well-crafted vindication of one such effort.

June 5, 2017 in Garnett, Rick | Permalink

"When the Ku Klux Klan Tried to Shut Down Religious Schools"

A helpful reminder from Prof. Thomas Kidd about the context of the Pierce v. Society of Sisters case and, let's be candid, about the roots of too much of today's opposition to school choice.  My only quibble might be with the headline, given that the Klan had no problem with "religious" public schools (i.e., the "public" schools of the day were not, in today's terms, "secular").

June 5, 2017 in Garnett, Rick | Permalink