Mirror of Justice

Reinsch on Brownson, the Freedom of the Church, and "The Church and the Republic"

This essay, "The Church and the Republic", by Richard Reinsch, is definitely worth a read.  Especially for those of us who've thought and written about "institutional" religious freedom and the "Freedom of the Church," it's a really helpful piece.  Here's just a bit:

. . . Brownson, though, ultimately provided in this essay a teaching that goes beyond calculated adjustment to contemporary circumstances that existed between church and state. He grounded religious freedom in the nature of the human person because religion is the quintessential internal decision made by citizens and the state was “incompetent” to regulate this choice. Brownson observed that human beings possess equal rights to err before the state on religious identification. The state’s chief concern is with regulating external acts to prevent violence and fraud and to order citizens’s acts towards the common good. The mission of the Church, however, is “a spiritual not carnal one” and she directs persons through their conscience. To the extent the Church has an effect on the public order it is indirectly through the impact her teaching has on her members or those who have heard her proclaim the gospel and moral principles of the church and whose thinking and behavior changes accordingly. This is, Brownson contended, “the precise order which obtains in the United States.” It follows that “in all this she can address herself only to . . . moral nature, to . . . reason or understanding, his free will, his heart, and his conscience.”

The American Option

Brownson, though, did not merely restate America’s defense of religious freedom to the editors of La Civiltá Cattolica, but also stressed that American constitutionalism is really the form of government that most approximates a Christian anthropology and provides an example of how modern republics can realize the Christian idea of the integral development of the human person. On this point, Brownson observed that the First Amendment’s religion clauses were a specific limitation on the state’s power reminding it that it stood under a higher order of law. . . . 

Remembering Fr. Araujo

This weekend marked the second anniversary of the death of our friend and colleague, Fr. Robert Araujo.  R.I.P.

 

School of Civic and Economic Thought and Leadership at ASU

Arizona State University has just launched the School of Civic and Economic Thought and Leadership under the direction of the wise and learned Paul Carresse, former professor of political science at the Air Force Academy and author, most recently, of Democracy in Moderation: Montesquieu, Tocqueville, and Sustainable Liberalism. The school aims to steep its students in the study of America's founding principles.  Check out these courses and this upcoming speaker series.

The school's moto: "Inspiring Leadership and and Statesmanship for the Common Good." The timing of this new initiative is impeccable. May it attract many students and bear much fruit.

 

Robert Nisbet on Marriage

From "The Quest for Community" 66 (1953):

The fantastic romanticism that now surrounds courtship and marriage in our culture is drawn in part no doubt from larger contexts of romanticism in modern history and is efficiently supported by the discovery of modern retail business that the mass-advertised fact of romance is good for sales. But the lushness of such advertising obviously depends on a previously fertilized soil, and this soil may be seen in large part as the consequence of changes in the relation of the family to the other aspects of the social order. The diminution in the functional significance of the family has been attended by efforts to compensate in the affectional realm of intensified romance. Probably no other age in history has so completely identified (confused, some might say) marriage and romance as has our own. The claim that cultivation of affection is the one remaining serious function of the family is ironically supported by the stupefying amount of effort put into the calculated cultivation of romance, both direct and vicarious. Whether this has made contemporary marriage a more affectionate and devoted relationship is a controversy we need not enter here.

Gov. Jerry Brown vetoes misguided attempt by California legislators to narrow Hosanna-Tabor

Here's a good report by my Notre Dame colleague, Margot Cleveland, on the welcome rejection by Gov. Brown of AB-569, or "The Reproductive Health Non-Discrimination Act."  The Act would have "made it illegal for a California employer to discipline or fire employees for 'their reproductive health decisions, including, but not limited to, the timing thereof, or the use of any drug, device, or medical service'" -- and, troublingly, it would have recognized only a very narrow (i.e., more narrow than the scope of the ministerial exception) religious exemption.

Chapman and Hortwitz review Tebbe's "Religious Freedom in an Egalitarian Age"

My friend and longtime collaborator, Prof. Nelson Tebbe, has written a much-noticed book, Religious Freedom in an Egalitarian Age.  (Congrats!)  I read today two respectful, admiring, but critical reviews -- one by Paul Horwitz and the other by Nathan Chapman - both are recommended.  (To be clear:  There are other reviews out there too -- read them as well!)  Here's a bit from Paul:

. . . Despite its focus on reasoned elaboration, a certain magical thinking drives this book, with its relentless mixture of is and ought. “We should insist both that current conflicts between religious freedom and equality law are intricate and that they are not intractable,” Tebbe writes. “Justified solutions can and must be found.” Readers may rightly worry about words like “should” and “must.” That we face urgent problems is no guarantee that we can find a way to “diminish or dissolve the apparent tension between peace and justice” in this area. But Tebbe wants lasting solutions; and though he insists that his book “is not a recipe for the end of disagreement,” he advocates a method, and a set of outcomes, that will “shape civil rights law and religious freedom guarantees into the future.” Like the warring camps at our law and religion roundtable, he wants to set the terms of engagement and treat certain “settlements” as final. The losers should not only “understand why their arguments have been rejected,” but accept defeat with good cheer.

That seems unlikely . . .

And, from Nathan:

. . . Receiving and giving reasons for moral judgment calls for openness, hard work, smarts, and, above all, good faith. It entails living within a moral community, or overlapping moral communities, that give life to moral habits and render moral reasoning coherent. Tebbe rightly resists reducing moral reasoning to nothing more than an act of individual will. Unfortunately, as discussed more fully below, the way he applies social coherence to mediate the conflict between religious liberty and equality seems to verify, rather than to challenge, the skeptics’ view that religious liberty jurisprudence is inevitably personal value preferences all the way down.

The book is best understood as an application of one version of Rawlsianism to an array of legal questions arising from a clash between Progressivism and the view that Progressive norms should not always override religious liberty. The reader will encounter a helpful tour through a variety of challenging legal cases and a number of novel proposals for solving vexing doctrinal puzzles. . . .

 

Waldron on the Dignity of Old Age

Prof. Jeremy Waldron has posted a paper, "The Dignity of Old Age," at SSRN.  Get it here.   Here's the abstract:

It is important to complement our general account of human dignity with accounts of the specific dignity of particular phases of human life. In this paper I address the dignity of old age--the aspects of elderly life that command our respect. An account of this kind is particularly important for a balanced view of the assisted suicide debate. For even if we favor a right to die, we need also to be able to make sense of the dignity of a life lived to the end without a chosen procedure to bring it to an end. The account given in this paper addresses the approach of death and, for the purposes of dignitarians analysis, ranges around it other aspects of old age, such as wisdom, authority, debilitation, suffering, and issues about self-presentation and personal autonomy.

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Georgetown Conference on the 50th Anniversary of Murray's Death

This event should be interesting to MOJ readers, given the extent of Murray's influence on many of us:

On August 16, 1967, John Courtney Murray—Jesuit priest, theologian, and public intellectual—passed away less than a month before he would have turned 63. For the final three decades of his life, he taught at Woodstock College and edited the Jesuit journal Theological Studies. Celebrated on Time magazine’s cover (December 12, 1960) for contributions to American domestic and foreign policy debates and for sympathetic, if critical, understanding of religion in American public life, he later helped compose Vatican II’s “Declaration on Religious Liberty” (Dignitatis Humanae).

From Georgetown’s introductory Theology course, “The Problem of God”—named after Murray’s 1962 Yale Lectures—to the mission of the Berkley Center for Religion, Peace, and World Affairs, Murray’s influence can be seen throughout the university’s programming. This year, Georgetown celebrates John Courtney Murray’s legacy in the fiftieth anniversary year of his passing with a day-long event examining Ignatian practice and Catholic and Jesuit identity.

This event is co-sponsored by the Berkley Center for Religion, Peace, and World Affairs and the Office of the President.

Transformational Marriage: How to End the Culture Wars Over Same-Sex Marriage

That's the title of a new paper by Rob Kar, Professor of Law and Philosophy at the University of Illinois.  The paper is Rob's contribution to a volume edited by Robin Fretwell Wilson:   The Contested Place of Religion in Family Life (Cambridge University Press 2018).  Rob is eager for critical feedback on the paper:   [email protected].   The paper is available here.

The abstract:

Recent developments toward the legalization of same-sex marriage in the West are often viewed as a triumph for secularism in a religious-secular culture war. That assumption foments ongoing division and hostility between some committed religious observers and some LGBT persons and their supporters.

The assumption is also wrong. The recent legalization of same-sex marriage in the West has underappreciated religious and spiritual causes and potential. It is the partial result of the historical emergence of a love-based social institution of marriage in the West. These developments, which began in the 17th to 18th centuries, further allowed for the emergence of what this article calls "transformational marriage". Given the development of transformational marriage, there are now weighty reasons -- both religious and secular -- to support these marriages among anyone who chooses to enter into them. Debates over same-sex marriage should be removed from the contemporary religious-secular culture wars.

To show this, this chapter offers a blend of religious, scriptural, moral, secular and psychological arguments, which provide a basis for previously opposing camps to reach an "overlapping consensus" on the value of transformative marriage for all people. An overlapping consensus is the polar opposite of a religious-secular culture war: it is a consensus that can be affirmed, for different reasons, by the opposing religious, philosophical and moral doctrines likely to thrive over generations in a more or less just constitutional democracy. Hence, there are good reasons for people of good faith on all sides of this conflict to support the development of this overlapping consensus and remove the issue of same-sex marriage from the culture wars.