Monday, January 29, 2018
Story here. As Walter Olson notes,
The Ontario bar association has adopted a rule under which all lawyers “must prepare and submit a personal ‘Statement of Principles’ attesting that we value and promote equality, diversity and inclusion,” according to Bruce Pardy in the National Post, who says it’s a bad idea. . . .
But the U.S. is not so far behind. In 2016 the ABA adopted Model Rule 8.4 (g), which makes it “professional misconduct” for an attorney to engage in “conduct,” including verbal “conduct,” that “the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” . . .
The “Test Acts” were a series of enactments in England that excluded from public office and penalized in other ways those who would not swear allegiance to the prevailing religious tenets of the day. There is no good reason to bring back their principles.
This is a troubling development, and lawyers (in both Canada and the United States) should resist it. I agree with Eugene Volokh regarding the First Amendment problems with the ABA's Model Rule. The concern, obviously, doesn't have to do with whether or not lawyers should be committed to "equality" in some sense but rather with the fact that, in contemporary discussions, both "equality, diversity, and inclusion" and "discrimination" are used in imprecise and ideologically and/or religiously loaded ways. Stay tuned . . .
As I proposed in my very first MOJ post, nearly 14 years (!) ago, and as I've contended in a few articles over the years (e.g., here and here), answering pretty much all questions about legal institutions and doctrines requires, in the end, engaging with big questions of moral anthropology, e.g., what does it mean to be a person and why does it matter that one is a person? What is the nature, and what is the destiny, of the person? These questions were, of course, at the very heart of the work and pontificate of Pope St. John Paul II. I wrote once:
“Are human beings different from meat?” A recent book review opens with the complaint
that this is “[a]n example of the worst type of modern philosophical question”; a question that, “[f]or
those among us who have never been invited into Socratic dialogue by, say, a porterhouse, . . . is
dumb in ways rarely thought possible before.”2
The reviewer is right, of course—the question is
“dumb.” Then again, we might wonder if this “worst kind” question is really all that different from
the Psalmist’s own: “Lord, what is man . . . that thou makest account of him?” (Psalms 143:3) The
question, it turns out, is both perennial and profound: “What is man, and why and how does it
Well, here comes news from China about the (alleged) cloning of a monkey in China, prompting the headline, "How can we be special if we're just a bundle of cells?" How, indeed?
Here, thanks to the University Bookman site, is William Borman's review of Andrew Willard Jones's book, Before Church and State: A Study of Social Order in the Sacramental Kingdom of St. Louis IX. Fascinating stuff. A bit:
The thesis of Jones’s book is simple: everything that we thought we knew about the Middle Ages is fundamentally mistaken, and the study of the Middle Ages in modern times has frequently, indeed almost always, amounted to the study of modern preconceptions and prejudices about the past. . . . The main obstacle to our understanding of the medieval world, indeed, appears to be our understanding of our own world, and our routine application of modern conceptions to a past in which they do not belong. We have ignored or discarded the concepts proper to our area of study. Instead of looking at the microbe through the microscope, we have effectively been studying the lens.
Many examples of Jones’s thesis are provided, with much detail. Here are a few: “secularism” did not exist; the distinction between “temporal” and “spiritual,” or between “church” and “state,” did not exist; peace in temporal matters was peace in spiritual matters, and vice versa; the “state” itself did not exist, nor did “sovereignty,” nor “law”; “violence” is not a necessary characteristic of society but a disrupter of it, for society is peace; and governance is not determined, as Weber thought, by a “monopoly on force.” . . .
Check it out.
Friday, January 26, 2018
The Institute for Religious Liberty at Thomas More College hosted a three-speaker event earlier this week on the topic "Religious Liberty at a Crossroads: Legal Perspectives." The speakers were me, Fred Gedicks, and Ilya Shapiro.
Thomas More College is the liberal arts college of the Diocese of Covington (Kentucky). Prior to the evening talk, I had the opportunity to explore the campus. The architectural highlight is Mary, Seat of Wisdom Chapel, which occupies the geographical center of campus.
The opening claim in my talk was that it is important to keep legal perspectives on religious liberty in perspective. A legal perspective is neither the only nor the most important perspective for thinking about religious liberty. It is more important to think about what religious liberty is for, and to use our civic freedom to exercise our religion.
As for the legal perspective itself, my primary theme was: "If you're litigating, you're losing." This is true of normal people and institutions. You end up in court because something has broken down and you find yourself in court opposite somebody else. If you're in as a defendant, someone has brought legal action against you. And if you're in as a plaintiff, it's because you failed to get the protection you seek in some other way.
It's not great being in a lawsuit, even as a plaintiff. You have to deal with lawyers. And even if you win, you might still end up worse off than if you never had to file. That's a particular risk of religious liberty litigation because it is so easy to get framed by ideological adversaries as seeking special rules of "the normal law doesn't apply to us" sort. A better way to think about these cases is as the normal consequence of a general commitment to religious liberty as it interacts with other legal requirements. But the "special rules" framing has been more prevalent.
Another feature of recent religious liberty cases comes into view when thinking about the limits of "if you're litigating, you're losing." This is generally _not_ true of "movement litigation." In "movement litigation," you're litigating to move the law in a certain direction. If you win, you've moved the law. And if you lose, you haven't moved the law but hopefully the law is no worse than it was (though there is a risk of this happening).
Religious liberty can sometimes operate as movement litigation. But the contraceptives mandate cases were not of this sort. The cases were preservative rather than transformative.
Although some of the cases are still pending, the religious liberty claimants have largely prevailed. But while we've "won" for now, that doesn't mean we aren't losing more generally. The mandate was very aggressive, and the sources of that aggression remain.
Thursday, January 25, 2018
Don't miss this moving Washington Post story describing the courtroom testimony of former gymnast Rachael Denhollander: "She helped bring down Larry Nassar. At his sentencing for sex crimes, she spoke about her faith."
She was the first, in 2016, to accuse Nassar of sexual abuse, back in 2000 when she was 14 and he was the sports physician at Michigan State University. On the stand, she spoke to Nassar of the biblical description of the final judgment “where all of God’s wrath and eternal terror is poured out on men like you.”
She continued: “Should you ever reach the point of truly facing what you have done, the guilt will be crushing. And that is what makes the gospel of Christ so sweet. Because it extends grace and hope and mercy where none should be found. And it will be there for you. I pray you experience the soul-crushing weight of guilt so you may someday experience true repentance and true forgiveness from God, which you need far more than forgiveness from me — though I extend that to you as well.”
There's more. Check out the whole story. How fitting that this testimony be reported on the Feast of the Conversion of St. Paul.
Monday, January 22, 2018
Journal of Catholic Legal Studies Symposium on "Christian Legal Thought: Materials and Cases" by Brennan and Brewbaker
My excellent students, Liam Ray and Nick DeMarco, have put together a symposium as part of their work on the Journal of Catholic Legal Studies at St. John's on the new casebook on Christian Legal Thought by Patrick Brennan and William Brewbaker. The announcement for the event is below:
This Friday, January 26, the Journal of Catholic Legal Studies (a publication of St. John’s University School of Law) will host a symposium on the new casebook Christian Legal Thought: Materials and Cases (2017) by Patrick M. Brennan (Villanova) and William S. Brewbaker III (University of Alabama). The symposium will take place at the New York Athletic Club in Manhattan from 3 PM to 6 PM, with a reception at the Club following from 6 PM to 7 PM. It will feature as panelists both casebook authors, as well as Professors Randy Beck (University of Georgia), Angela C. Carmella (Seton Hall), Richard W. Garnett (Notre Dame), Michael P. Moreland (Villanova), and David A. Skeel, Jr. (University of Pennsylvania). The event is free and open to the public (please note the New York Athletic Club’s dress guidelines). More information, including whom to contact with questions, is available here. The January 19 deadline to RSVP has been extended to January 25.
From the USCCB:
The over 56 million abortions since the 1973 decisions of Roe v. Wade and Doe v. Boltonreflect with heartbreaking magnitude what Pope Francis means by a “throwaway culture.” However, we have great trust in God’s providence. We are reminded time and again in Scripture to seek the Lord’s help, and as people of faith, we believe that our prayers are heard.
The General Instruction of the Roman Missal (GIRM), no. 373, designates January 22 as a particular day of prayer and penance, called the "Day of Prayer for the Legal Protection of Unborn Children”: “In all the Dioceses of the United States of America, January 22 (or January 23, when January 22 falls on a Sunday) shall be observed as a particular day of prayer for the full restoration of the legal guarantee of the right to life and of penance for violations to the dignity of the human person committed through acts of abortion.”
As individuals, we are called to observe this day through the penitential practices of prayer, fasting and/or giving alms. Another way to take part is through participating in special events to observe the anniversary of Roe v. Wade. Call your local diocese or parish to find out what events might be taking place in your area.
Friday, January 19, 2018
The "Public Conscience / Private Rights Project" at Columbia Law School is, in my opinion, an activist/lobbying enterprise, funded largely by ideologically motivated sources, that should not be housed in an academic institution of Columbia's stature. But, put that aside. The Project is touting a new "report", "Bearing Faith: The Limits of Catholic Health Care for Women of Color." I heard about the "report" in an email with the Onion-esque headline, "New Report Reveals Pregnant Women of Color More Likely to Receive Religiously Restricted Reproductive Health Care in Many US States."
Good grief. For decades, orders of Catholic women religious sacrificed heroically and made it their vocations to build institutions and provide health care in low-income, immigrant, and underserved communities. And now there are "reports" suggesting that the animating, inspiring faith of these women -- which has implications, no surprise, for the institutions' willingness to perform abortions on those they serve -- is some kind of racist, oppressive miasma. What a world.
In part because of the upcoming Steven Spielberg movie, and in part because of Fr. Romanus Cessario's review in First Things of Edgardo Mortara's memoir, and in part because of the renewed interest on the part of a number of accomplished scholars and thinkers (Deneen, Legutko, Vermeule, etc.) in the nature, foundations, and future of liberalism, there has been a boomlet of 21st century digital debate over the Edgardo Mortara case. The case was hugely important in 19th century America in shaping perceptions not only of the Church and the papacy but also of Catholic schools and, it's fair to say, by shaping American anti-Catholicism it also shaped American church-state law. Today, it also tees up questions about political theology and theory, the nature of the sacraments, the anti-Semitism of many Catholics, the natural rights of parents, Italian nationalism, etc.
On the one hand, it seems pretty strange -- and, perhaps, more than a little regrettable (Matthew Franck, in this piece, calls it a "needless quarrel")-- that this case (which, in my view, has to be judged, as Rusty Reno put it at First Things, as a "stain on the Catholic Church") is the topic of the moment. Yes, the evidence as I understand it is that Mortara came to love Pope Pius IX and his own vocation to the priesthood and, yes, as Fr. Cessario wrote, "baptism configures a person to Christ, leaving something permanent in the one baptized." Still - it was both immoral and illegitimate for the relevant authorities to take him away from his parents. It was, among other things, as Robert Miller explained, an abuse of state power. (I've seen some comments on Twitter criticizing Miller for framing his critique of the Mortara case in terms of "statism." The complaint seems to be that Miller is reducing or conflating the wrong of unjustly taking Mortara from his parents to/with a libertarian critique of government action generally. I don't think that's what Miller was doing at all. "Statism" is a thing, after all -- it's not "constitutional governments promoting the common good" -- and it's bad.)
I'm inclined to agree with Franck that "Pius was wrong in the Mortara case—grievously so, as Miller’s main argument demonstrated—for venerable Catholic reasons he should have understood even in his own day, reasons having no connection with the modern liberal project that the integralists (rightly or wrongly) attribute to the anti-Christian secular enlightenment." That is, I think it's important to note that the reasons Pope Pius was wrong are not simply that he didn't play by Rawls's (or any other left-liberal) rules; it's not (I hope!) the case, as Pat Smith charges, that the basis for criticisms of Mortara's removal is merely "comfortable, bourgeois liberalism" or a timid and naive attachment to Murray, Maritain, Dignitatis humanae, etc.