Mirror of Justice

He's baaaaaack!!!

Yep! The Wile E. Coyote of American Catholic journalism--a/k/a Michael Winters of the (now-officially-pro-Roe v. Wade) National Catholic Reporter--is back! And he has finally said something absolutely true, to wit (and I quote Wile E.), "Of course, I'm being silly."

https://www.ncronline.org/news/accountability/distinctly-catholic/robert-georges-all-or-nothing-take-abuse-crisis-wrong-headed

And silly he is indeed being.

What's got Wile E. worked up this time is an essay I published at First Things about the Theodore McCarrick scandal and the stomach-turning report of sex abuse by literally hundreds of priests in Pennsylvania.

Here's what I said that caused Wile E. to reach for the stick of dynamite that would inevitably go off in his hand:

"What is the answer? Well, fundamentally the answer to infidelity is fidelity. That is what is needed. As my late friend Fr. Richard John Neuhaus put it, "fidelity, fidelity, fidelity." There is no proper place for unfaithful priests (of any rank) in the Church. If a man does not believe what the Church teaches about God, about the dignity of the human person, about sex and marriage, or about justice, he should not function as a priest or serve as a bishop. If he cannot or will not proclaim those teachings, and certainly if he cannot or will not lead his life consistently in line with those teachings, he should not be ordained (if he is, or proposes to become, a seminarian) or, if he is already ordained, his priestly faculties should be removed. Period."

Wile E. thinks that this demand for fidelity by priests and bishops to the teachings of the Church and to the vows they made to God is outrageous. But even worse--what is, he insists, "really outrageous"--is this sentence of mine:

"There is no proper place for unfaithful priests (of any rank) in the Church."

Them's fightin' words to Wile E.!

Not only does Wile E. evidently think there is a proper place for unfaithful priests and bishops in the Church, he thinks it is nothing short of "really outrageous" that someone would say that there isn't.

Wile E. is indeed "being silly." He is defending the indefensible. His loathing for orthodox Catholicism and for me personally is so consuming that he once again, as he has done so often in the past, blows himself up with the stick of dynamite intended for his prey.

In fact, he is so blinded by malice that at one point he purports to rebut my demand for fidelity from clergy by pointing out the (utterly irrelevant) fact that John Courtney Murray and Henri de Lubac were accused by prelates of being unfaithful to the teaching of the Church." You can't make this stuff up. For most readers, I'm sure, it goes without saying that what I'm against is unfaithful clergy, not clergy who are accused of being unfaithful, whether they are in fact unfaithful or not. Nor am I opposed--quite the contrary--to canonical procedural protections for clergy or others who are formally accused of infidelity. And, as a Catholic, I obviously believe in the development of doctrine (where this concept is understood the way the Church herself understands it, and not as a license to ignore or reject propositions of faith definitively proposed, in any of the ways outlined in Lumen Gentium 25, by the Church's magisterium).

Finally, no mindless rant against me by Wile E. Coyote would be complete without him accusing me of an obsession with sexual sins, and sure enough readers are told: "George's obsession is with sexual sin." This asinine allegation is falsified in the very first paragraph of the essay Wile E. is complaining about where I expressly identify the wrongs at the heart of the scandals as having to do with "not only sexual morality, but also our obligations to love and respect, and not to exploit or abuse, others." It is also falsified by my explicit demand for fidelity by teachers of the faith to the Church's teaching not only about sex and marriage, but also "about God," "about the dignity of the human person," and "about justice." These points were made, curiously, in a paragraph that was quoted by none other than Wile E. himself. So how did he miss them?

Hmmm . . . .   Who is it that is supposed to have an "obsession with sex"?

 

Parents' rights, religious freedom, and children's education in New York's yeshivas

There is a controversy brewing in New York City having to do with the question whether yeshiva schools serving so-called "ultra-Orthodox" children are providing an adequate "secular" education.  (See this New York Times editorial for some background.)  

I am, and have long been, a defender of the Pierce right, i.e., the right of parents to (substantially) direct and control the upbringing and education of their children.  The position proposed by Justice Douglas in the Yoder case has always struck me as frighteningly illiberal.  As I wrote here,

Recent calls for a thicker liberalism and for the harnessing of education to create truly liberal citizens make it all the more important that we take Pierce seriously. And if we do, it is suggested that state functionaries, guided and restrained by a proper humility about their authority and competence, should override parents' educational decisions only to prevent harm, carefully defined, to a child. The problem is, how do we define harm. This paper proposes that the content of religious instruction, traditions, or beliefs should not be viewed as harmful in the sense necessary to justify government second-guessing or supervention of parents' decisions about such instruction. In a free society, one that values religious freedom, the state should not entertain, let alone enforce, a belief that children would be better off without religious faith.

Still, questions remain regarding the political authority's legitimate "police power" to require the provision (and attempt to bring about the attainment) of some levels of proficiency, etc., in "secular" subjects.  Line-drawing and slippery-slope problems abound.  And, as Mayor de Blasio (with whom I often disagree) pointed out, whatever the shortcomings of the yeshiva schools, "I have to be straightforward and say there’s room for improvement in a lot of our traditional public schools, too.”  That's putting it mildly.

Stay tuned.

John Witte and Nicole Garnett at Villanova This Fall

The McCullen Center at Villanova (which I direct) will host two lectures this fall, in addition to other events. Next Tuesday, August 28 (the Feast of St. Augustine, as it happens), we will inaugurate an occasional lecture series on Law and the Augustinian Tradition with a visit from John Witte of Emory University speaking on "From Gospel to Law: Martin Luther's Reformation of Law, Politics, and Society." Details here (including CLE credit for lawyers). And looking ahead, on October 30 at 3:00pm Nicole Stelle Garnett of Notre Dame Law School will deliver the 42nd annual Giannella Lecture (details to come).

Scholarly Impact and Catholic Legal Education (Part Three)

A few days ago, after reporting the 2018 update to the Scholarly Impact Ranking of law faculties (here), I began a short series of posts on why scholarly work and scholarly impact are especially important to Catholic legal education, which I conclude today.

The first point, made here, was that a meaningfully Catholic law school must be an intellectually engaged law school, which is not possible without a faculty also engaged in the quintessential intellectual activity of scholarly research and writing.

My second point, made here, was that through scholarly excellence and law school scholarly prominence, we witness to society the vibrancy of intellectual discourse by persons of faith and counter the anti-intellectual stereotype often assigned to religiously-affiliated law schools.

My third point today is that, as Catholic Christians, we have are called to share the Gospel, both directly and indirectly.  The central role of scholarly research in our academic vocation is affirmed by no less a Catholic authority than Saint John Paul II in the apostolic constitution for Catholic universities, Ex Code Ecclesiae:   “The basic mission of a University is a continuous quest for truth through its research, and the preservation and communication of knowledge for the good of society.”

For some of us on law school faculties, that directive means writing on Catholic legal theory and applying Christian-grounded principles to the legal and social issues of the day.  For all of us, it means conducting the search for the truth with integrity and dedication.  The search for the truth is hard work -– and for Catholic academics that hard work requires scholarly engagement.

Turning again to the words of Ex Corde, for a Catholic university “included among its research activities, therefore, will be a study of serious contemporary problems in areas such as the dignity of human life, the promotion of justice for all, the quality of personal and family life, the protection of nature, the search for peace and political stability, a more just sharing in the world's resources, and a new economic and political order that will better serve the human community at a national and international level. University research will seek to discover the roots and causes of the serious problems of our time, paying special attention to their ethical and religious dimensions.”

Through our work –- through the excellent quality, regular production, and integrity of our work (comporting with the standards of our discipline) –- we may have a significant influence on the development of the law and of the legal culture.  As my Dean Rob Vischer wrote recently (here), “a fundamental mission of law schools is to advance knowledge and thereby contribute to human flourishing.”  For religiously-affiliated law schools, Vischer says, our mission includes “producing scholarship aimed at bringing a more just world into view.”  And this scholarly mission can resonate with and be integrated into our teaching and collaborative work with students.  To again quote Rob Vischer, we should not neglect “the formative potential of inviting students to be active participants in a law school's scholarly culture.”

On the call to challenge and inform the culture, Ex Corde speaks as well to the vital importance of scholarly work:  “By its very nature, a University develops culture through its research, helps to transmit the local culture to each succeeding generation through its teaching, and assists cultural activities through its educational services. It is open to all human experience and is ready to dialogue with and learn from any culture. A Catholic University shares in this, offering the rich experience of the Church's own culture. In addition, a Catholic University, aware that human culture is open to Revelation and transcendence, is also a primary and privileged place for a fruitful dialogue between the Gospel and culture.”

We cannot fully participate as academics in the search for the truth without also contributing to the scholarly literature, which reaches audiences both within and beyond the walls of our own institution and which is preserved in medium so that we can affect the scholarly discourse long after we have departed.

What a tremendous privilege – and a grave responsibility.

"The Eclipse of Catholic Fusionism"

This piece, in American Affairs (an important new journal), by Kevin Gallagher, is getting a lot of notice and comment.  I confess, I'm not wild about the piece.  It's probably because I'm getting old, but it seemed off-puttingly overconfident and also to indulge in broad-brushing and oversimplification (and silly cliches about "theocons").  That said, it's another addition to the interesting and important conversation about Catholicism and liberal democracy.

Whether or not one agrees with the descriptions and diagnoses, I'd suggest that a little more . . . gratitude (and a little less imperious snark) is in order to those who've made it their vocation to use the tools at hand to defend religious liberty and the freedom of the Church.

I'd welcome comments from other MOJ-ers!    

Scholarly Impact and Catholic Legal Education (Part Two)

Last week, I reported the 2018 update to the Scholarly Impact Ranking of law faculties that I and my team at the University of St. Thomas had just concluded: here.

Six years ago, I posted a series on the importance of scholarly activity and scholarly impact for Catholic legal education.  I am revising and re-posting those, as they remain just as salient today.  This is the second in the series of three.

The first point, which I made in a post last week, is that a meaningfully Catholic law school must be an intellectually engaged law school.  Intellectual excitement and depth cannot be sustained without a faculty also engaged in the quintessential intellectual activity of scholarly research and writing. 

My second point goes not only to Catholic legal education, but Catholic higher education in general:  Through our scholarly excellence and prominence, we witness to society the vibrancy of intellectual discourse by persons of faith.

Throughout American history -- and with increasing tendency today –- persons of devout religious faith have often been discounted in academic and other elite cultural circles, sometimes regarded as intellectually inferior.  As but one pertinent example, those who study reputational-based rankings of law schools (such as the U.S. News ranking which gives considerable weight to reputational surveys) have observed a “religious law school discount.”  See Monte N. Stewart & H. Dennis Tolley, Investigating Possible Bias:  The American Legal Academy’s View of Religious Affiliated Law Schools, 54 J. Legal Educ. 136 (2004). A law school that is religiously affiliated is likely to be downgraded an ordinal ranking level or more -– due to poorer survey scoring by academic peers -- when compared to otherwise equivalent law schools on objective measures such as student profile, employment statistics, faculty scholarly impact, etc.  The strongest counterpoint to this "religious law school discount" is to prove the falsity of the anti-intellectual stereotype by encouraging our colleagues to perform even better than scholars at our peer institutions without a religious affiliation.

If Catholic legal education (or Catholic education in general) is to be acknowledged as intellectually fit, then faculty at Catholic institutions must be intellectually engaged.  By sharing our legal scholarship with others, and (hopefully) receiving deserved accolades for our work, we thereby enhance the intellectual reputation of Catholic legal education.

A half century ago, Monsignor Tracy Ellis provoked Catholic higher education through a speech and monograph titled, “American Catholics and the Intellectual Life.”  Monsignor Ellis indicted Catholic colleges for failing to build a strong scholarly culture, leading to the disrepute of Catholic higher education.

Tom Mengler -- who is President at St. Mary’s University in San Antonio and previously was dean at the University of St. Thomas School of Law and the University of Illinois College of Law -- wrote thoughtfully about Monsignor Ellis in a piece published several years ago in the Journal of Catholic Social Thought titled “Why Should a Catholic Law School Be Catholic?” (here)

Monsignor Ellis blasted away at the anti-intellectualism of the American Catholic and the mediocrity –- especially the scholarly mediocrity –- of American Catholic colleges and universities. Ellis wrote that the lack of an intellectual and scholarly tradition within Catholic higher education [was] a kind of self-imposed ghetto mentality* * *.  [In the early twentieth century, Catholic colleges] emphasize[d] what Ellis called a narrow vocationalism and anti-intellectualism.

* * * By all accounts, Ellis’s tiny book had enormous impact on Catholic higher education. Just a few years after Ellis‟s book was published, Father John Cavanaugh, formerly Notre Dame’s president, credited Monsignor Ellis with upgrading scholarship at Catholic universities across the country.  At most of the major Catholic universities – throughout their academic departments, including within the law schools – scholarship suddenly became a more important focus.

We are the heirs of Monsignor Ellis’s intellectual legacy.  And the need for a vibrant scholarly culture in Catholic higher education remains as compelling.  As I’ll turn to with the third point later this week, the additional challenge today is to ensure that our scholarly excellence includes a critical mass of distinctly Catholic or Catholic-inspired work to influence the larger society for the good.

Adding married permanent deacons into the mix for a proper response to the crisis in the Catholic Church

Thank you to Marc for bringing our attention to the post at Law & Religion Forum by Robert Delahunty and Andrew J. Ratelle. Ranging from least to most radical, Delahunty and Ratelle propose: (1) advocacy: (2) financial sanctions; (3) diocesan boards of lay overseers; (4) lay input in selecting bishops; and (5) lay input in removing bishops.  It will be useful to think about the details in evaluating both whether and how the laity can "assume far greater responsibility for the conduct of their bishops and priests."

As we consider ways to implement new governance initiatives, we should also consider what role married permanent deacons might be able to play. These deacons are clerics, not laity. By virtue of their ordination, permanent deacons are "qualified ... for the power of governance." (Canon 129, § 1) This qualification sets permanent deacons apart from the laity, for "[o]nly clerics can obtain offices for whose exercise the power of orders or the power of ecclesiastical governance is required." (Canon 274, § 1)

Although distinct from the laity as a matter of canon law, married permanent deacons are more likely to be closer to the laity as a matter of culture. Because of their distinctive life experience from other ordained clerics, married permanent deacons can provide perspectives that bishops and priests lack. And because the vast majority of married permanent deacons do not depend on the church for financial sustenance or career advancement, they are also less likely to play it safe by keeping their head down and staying silent. 

These are just a few considerations to bear in mind. But inasmuch as personnel is policy, we should not overlook this particular category of personnel.

Delahunty & Ratelle on Giving the Laity a (Nonbinding) Role in Appointments of Diocesan Bishops

Here is an interesting and provocative proposal by Professor Robert Delahunty and Mr. Andrew Ratelle in response to the ongoing crisis of the Church concerning widespread, decades-long sexual abuse of children by bishops and other clerical leaders.

The crux of the proposal concerns lay involvement in appointment and removal of bishops. A bit from the post:

Revolutionary as it may yet seem, lay involvement in Church governance is by far the norm throughout Christian history. The clergy was one of two pillars that upheld the universal Church. The second was historically the nobility—the knights, landowners, and men of property—whose practical means and expertise propped up, and occasionally held in check, the more spiritual mission of the priests and bishops. Historically, the nobles were in turn supported by the peasantry, commoners who lived by the work of their hands in exchange for the protection offered by their feudal employer.

As the middle ages developed, an increasing number of social gradations between these two lay classes appeared until the dawn of the modern age, when the nobility and the commoners effectively joined into once distinct class. The knight and the peasant are essentially one, with the modern laity taking a share of the responsibilities of both. It is their duty not just to provide for, but to defend, the universal church, exercising their role in a range of natural competencies best suited to their state in life. Lest we forget it was the advocacy of two extraordinary members of the laity, in the persons of St. Francis of Assisi and Catherine of Siena, who helped correct the errors of the papacy in their own time. Chivalric orders like the fiercely independent Knights Templar held both the clergy and royalty in check for generations because of their roles not just on the battlefield, but in the financial sector. It was the Christian laity that held the line against apostate bishops and Emperors during the time of the Arian heresy, and it was laymen like Dante Alighieri, who put their professions on the line in condemnation of corruption in the Vatican.

The failure to recognize this normative function of the laity creates the conditions in which abuses like the current McCarrick scandal emerge. No single blog post can hope to cover the full scope of what the laity’s response should be.  We aim here only to start a conversation by making five suggestions ....

More ambitiously, we recommend that local parishes, priests and lay people be involved directly and substantially in the appointment and removal of the bishops of their dioceses.

In the early centuries of the Church, the popular vote of the faithful decided the nomination and election of bishops. St. Cyprian believed that these procedures prevented unworthy persons from becoming bishops. The great St. Ambrose of Milan, who converted the still greater St. Augustine of Hippo, was popularly elected bishop as a compromise candidate even while he was still an unbaptized layman!

In the fifth century, Popes Celestine I and Leo I condemned any attempt to impose a bishop without popular consent. The practice began changing in both the Eastern and Western Roman Empire in the early middle ages. In the West, popular elections remained, but Kings (themselves laymen) began to control nominations to vacant sees. Later still, episcopal elections were limited to cathedral canons – the clerical administrative staff of the bishops. In 1485, Pope Innocent VIII removed any reference to elections in the rite of consecration for a bishop. In 1917, the Code of Canon Law confirmed the papal right to appoint all bishops.

We are not recommending a revival of the early elective practice in pure form. Rather, we envisage a voluntary, non-binding commitment on the part of the Pope that he will only appoint as bishops those candidates who have been nominated by the parishes—i.e. priests and laypeople—of the dioceses that those bishops will lead. If the Pope so desired, the practice could vary from one country to another.

Because these arrangements would be non-binding, they would not alter canon law. Moreover, the Pope could stipulate that the agreement held only for the duration of his Papacy, and did not in any way commit his successor. Finally, the Pope could reserve to himself the power to breach or retract the agreement on any occasion.

More ambitiously, we recommend that local parishes, priests and lay people be involved directly and substantially in the appointment and removal of the bishops of their dioceses.

In the early centuries of the Church, the popular vote of the faithful decided the nomination and election of bishops. St. Cyprian believed that these procedures prevented unworthy persons from becoming bishops. The great St. Ambrose of Milan, who converted the still greater St. Augustine of Hippo, was popularly elected bishop as a compromise candidate even while he was still an unbaptized layman!

In the fifth century, Popes Celestine I and Leo I condemned any attempt to impose a bishop without popular consent. The practice began changing in both the Eastern and Western Roman Empire in the early middle ages. In the West, popular elections remained, but Kings (themselves laymen) began to control nominations to vacant sees. Later still, episcopal elections were limited to cathedral canons – the clerical administrative staff of the bishops. In 1485, Pope Innocent VIII removed any reference to elections in the rite of consecration for a bishop. In 1917, the Code of Canon Law confirmed the papal right to appoint all bishops.

We are not recommending a revival of the early elective practice in pure form. Rather, we envisage a voluntary, non-binding commitment on the part of the Pope that he will only appoint as bishops those candidates who have been nominated by the parishes—i.e. priests and laypeople—of the dioceses that those bishops will lead. If the Pope so desired, the practice could vary from one country to another.

Because these arrangements would be non-binding, they would not alter canon law. Moreover, the Pope could stipulate that the agreement held only for the duration of his Papacy, and did not in any way commit his successor. Finally, the Pope could reserve to himself the power to breach or retract the agreement on any occasion.

I mostly wanted simply to note the argument here and the post. There is much to think about and discuss in it, and I hope my colleagues will weigh in. Lay involvement in selection/appointment implicates all sorts of complicated questions. One of these is about just what the Church would get if it went in this direction. What it will get will depend upon the formation and knowledge of the laity in Catholicism. But perhaps we are, at this point, not entitled to wish for another Ambrose or Augustine, and instead should simply insist as an initial matter on an end to the present disasters.

Scholarly Impact and Catholic Legal Education (Part One)

Two days ago, I reported the 2018 update to the Scholarly Impact Ranking of law faculties that I and my team at the University of St. Thomas had just concluded: here.

Six years ago, I posted a series on the importance of scholarly activity and scholarly impact for Catholic legal education.  Over the next week, I'll repost slightly revised versions of those, as they remain just as salient today.

Whenever a report or study is published on the scholarly activities of law professors, it is likely to provoke some critical responses questioning whether legal scholarship has any practical value. Someone is likely to argue yet again that law professors spend too much time on scholarly writing at the expense of their teaching responsibilities (especially in an era in which law student debt is rising and job prospects are challenging).

In my view, this often (not always) reflects a false conflict between scholarship and teaching. We should not view scholarly work and teaching as competing with each other, rather than understanding that the intellectual preparation found in scholarly research and writing is complementary to greater depth in teaching.  As we've written in our most recent 2018 report:

Why would students want to learn from the law professor who arrives at the classroom podium only after abandoning rigorous written engagement with legal problems? How can we expect students to be inspired to professional leadership, masterful and dedicated client representation, and principled law reform if their professors do not exemplify the intellectual curiosity, the breadth of thought, and the conscientious inquiry of a legal scholar?

When I am asked, with respect to my own institution, the University of St. Thomas, whether we should continue to strive for scholarly excellence and national scholarly prominence or whether we should devote greater attention to teaching and enhancing professional formation, my answer is an unequivocal “yes!” Especially during these challenging times, we as tenured faculty members need to step up and work even harder to achieve excellence in both responsibilities.

Moreover, it bears reminding, even if the teaching duties of tenured faculty were increased substantially during the academic year, the long glorious months of summer would remain. At most law schools, few students are in school and few classes are being taught during the summer. Given that luxury of uninterrupted weeks of work time, most tenured faculty have been given more than ample opportunity to produce one or two major works of scholarship each year.

I want to address today a more pointed question: How important is scholarly impact to a Catholic law school?

For three reasons, I think the scholarly mission of the tenured (and tenure-track) law faculty takes on added importance for the Catholic law school: (1) an intellectually engaged law school culture requires scholarly-engaged law faculty; (2) a scholarly-prominent Catholic law school is a strong witness for the intellectual vibrancy of scholars of faith; and (3) a Catholic law school through the scholarly work of its faculty influences for good the culture in which it is situated.

I’ll say a little more about the first of points below and then follow up with the other two points in separate posts over the next week.

Continue reading

Call for Papers: Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility

 

Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility

Submissions and nominations of articles are being accepted for the ninth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  To honor Fred's memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2018.  The prize will be awarded at the 2019 AALS Annual Meeting in New Orleans. Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: [email protected]<mailto:sl[email protected]>.  The deadline for submissions and nominations is September 1, 2018.