Mirror of Justice

Lee Strang responds to Michael Sean Winters re: originalism, etc.

Here, at Public Discourse.  A bit:

 [T]he Constitution is at the center of American political and legal life, so properly interpreting the Constitution is of crucial importance. Americans of all stripes invoke the Constitution to support their differing legal and political positions. Originalism’s capacity to provide a coherent method to answer these fundamental constitutional questions depends, as I described in my article, on whether it has successfully navigated its intellectual transformation.

Religious Lawyering conference at Fordham

On Friday, I had the privilege of participating in a conference at Fordham Law School commemorating the 20th anniversary of two conferences held there that, in retrospect, initiated the religious lawyering movement 2.0 (i.e., beyond the work of Tom Shaffer and Joe Allegretti).  MoJ's own Amy Uelmen did a wonderful job as a co-organizer of the event. A few highlights:

• Strong participation from representatives of the National Association of Muslim Lawyers, an organization that was birthed at those Fordham conferences and is now a flourishing presence in communities across the country.  Listening to UW-Madison law prof Asifa Quraishi-Landes describe the group's history, it was a blessing that Muslim lawyers came together to build infrastructure for fellowship and support before 9/11, anti-Sharia legislation, and travel bans inescapably pulled the organization in the direction of civil rights advocacy.  NAML brings a formidable litigation presence today, but it's important to recognize that the group was formed by lawyers who wanted to support one another on their faith journeys within the profession.   
• Howard Lesnick's work was honored by several speakers, including Emory Christian Ethics prof Darryl Trimiew, who noted that, like Jacob, Lesnick wrestles with God.  For Lesnick - a deeply engaged skeptic - the wrestling is the point; the wrestling has not stopped; in the wrestling, there is beauty. 
• David Opderbeck called for a new generation of law and religion scholarship, with a redoubled effort to engage the latest in Christian ethical thought and theology, and Russ Pearce noted the importance of identity questions to the religious lawyering movement, both past and future.

Lucia Silecchia and I offered remarks about what insights lawyers might take from Pope Francis's apostolic exhortation, Rejoice and Be Glad.  I focused on his lament that some Christians "become incapable of touching Christ's suffering flesh in others, locked up as they are in an encyclopedia of abstractions," and his pointing to Jesus as clearing "a way to seeing two faces, that of the father and that of our brother. He does not give us two more formulas or two more commands.  He gives us two faces, or better yet, one alone: the face of God reflected in so many other faces."

This reminded me of John Noonan's Persons and Masks of the Law.  Noonan showed how lawyers use abstract principles and legal rules as masks to cover the real people affected by our work (e.g., "foreseeability" in the case of Helen Palsgraf). 

How do we train our students to utilize abstract principles wisely without obscuring the faces of those affected by their work?  How can we discard the masks without jeopardizing the healthy degree of detachment that is a key component of the rule of law?  These are not just insights for lawyers, obviously: to what extent have the bishops employed their own set of abstractions in ways that serve to obscure the faces of abuse victims?

We have not had as many conferences dedicated to such conversations since the Great Recession and ensuing Law School Troubles - ten years ago, we gathered regularly at conferences for, e.g., religiously affiliated law schools, Catholic legal theory, Catholic social thought and law.  Understandably, law schools have been focused on more pressing fiscal issues.  As the market stabilizes, reconvening with friends and fellow travelers at Fordham reminded me just how important these questions - and our persistent, institutional engagement with them - are to the well-being of our students and the broader society.

Robert Louis Wilken at the Center for Law and Religion

We are delighted to host Professor Robert Louis Wilken (the author of one of my favorite books on the history of the early Church) tomorrow to discuss his forthcoming book, "Liberty in the Things of God." 

Professor Wilken's presentation is the first at our Colloquium in Law and Religion this fall, a seminar at St. John's Law School that my colleague, Mark Movsesian, and I co-teach. More soon on the substance of Professor Wilken's very interesting new book concerning the intellectual origins of the idea of religious freedom.

Dean Announcement at The Catholic University of America, Columbus School of Law

This year CUA's Law School Dean, Dan Attridge, announced he would be stepping down.  After this very successful Deanship, the University has begun its national search.  Below is the announcement as well as contact information.  Of course, MOJ'ers can also feel free to contact me directly with any questions as well as a more lengthy description of the position.

 

As the national university of the Catholic Church in the United States, the Catholic University of America is committed to being a comprehensive Catholic and American institution of higher learning, faithful to the teachings of Jesus Christ as handed on by the Church. Dedicated to advancing the dialogue between faith and reason, the Catholic University of America seeks to discover and impart the truth through excellence in teaching and research, all in service to the Church, the nation, and the world.

Established in 1897, the Columbus School of Law is a national leader in preparing students of all faiths for the practice of law. The Law School has outstanding programs, institutes, externships, study-abroad opportunities, and nationally recognized clinics. Located in the nation’s capital, the Law School is housed in a beautiful modern building specifically designed for contemporary legal education, with state-of-the-art technology throughout its classrooms and library. The Law School offers three degrees: the Juris Doctor (J.D.), including a full-time day program and a part-time evening program; the Master of Laws (LL.M.); and the Master of Legal Studies (M.L.S.)

The School’s approach to legal education can be summarized with three words: practical, focused, and connected, also referred to as the CUA Law Advantage. The School shines as a gem within legal education in Washington, comprising collegial and compassionate students, a supportive and academically distinguished faculty, and an accomplished and well-connected alumni base that is actively involved in assisting current students to reach their goals.

The Law School seeks a distinguished legal scholar or member of the legal profession to serve as its next Dean. Reporting to the Provost, the Dean is the School of Law’s chief academic, advancement, financial, and administrative officer, with overall responsibility for its academic programs, operating budget, personnel management, strategic planning, public relations, and fundraising. The Dean is also the Law School’s primary representative to the University, alumni, and legal communities.

The next Dean will be presented with the opportunity not only to propel CUA Law to higher levels of prominence and distinction, but also to serve among the senior leaders of an international, Catholic research university.

CUA seeks a Dean who will make a significant contribution to advancing the University’s mission and goals, continue to advance the national academic and professional standing of the Law School, and provide strategic vision at an important time in its history. Candidates should have demonstrated leadership, administrative, and fundraising abilities and offer a long-term vision for the continued growth of CUA Law. Because the Law School seeks a vibrant intellectual leader, all candidates are expected to meet the qualifications for appointment at the rank of full professor with continuous tenure by their scholarly publications and/or distinguished contributions to the profession.

Nominations, inquires, and applications should be sent in confidence to: [email protected]

The Catholic University of America is an Affirmative Action, Equal Opportunity Employer.

 

A short opinion piece on religious freedom and church accountability

Thanks to Richard Reinsch, at Law & Liberty, for including this short piece of mine in today's symposium on "the Catholic Church's crisis."  A bit:

. . . [I] is clear, and it is crucial, that – in accord with due process, of course, and in keeping with important safeguards like statutes of limitations – alleged crimes be investigated, that criminal offenses be punished, that victims are compensated. This is true for bishops and clergy no less than it is for politicians and police or for laymen and citizens. It seems no less clear and crucial that not only repentance and penance but also reform and a reckoning are needed in the Church leadership, structures, and processes.

At the same time, calls for “accountability” should reflect careful thinking about the questions “accountable to whom?” There are matters over which secular political authorities and public officials have no power or say. . . .

A podcast on Endo's "Silence"

Longtime MOJ readers know that a number of us are big fans of Shusaku Endo's (complicated, haunting, fascinating) novel, "Silence."  I was glad to see it featured the other day on one of my favorite podcasts, John Miller's "Great Books."  Check it out.  (I was intrigued by Miller's guest's "take" on the novel, which was clearly a product of her Protestant lenses.  I wonder if other Catholic readers will have a similar impression.)

A troubling opinion on church autonomy from the CJEU

Here's the press release.  Nutshell:

Dismissal of a Catholic doctor from a managerial position by a Catholic hospital due
to his remarriage after a divorce may constitute unlawful discrimination on grounds
of religion.

The requirement that a Catholic doctor in a managerial position respect the Catholic Church’s
notion of marriage as sacred and indissoluble does not appear to be a genuine, legitimate and
justified occupational requirement, which is nevertheless a matter for the German Federal Labour
Court to determine in the present case.

However:

However, it is for the Bundesarbeitsgericht to determine whether IR has established that, in the light of the
circumstances of the case, there is a probable and substantial risk that its ethos or its right
of autonomy will be undermined.

Stay tuned.

Stabat: Regenerating the Church from the Foot of the Cross

As I try to steady myself amidst the earthquake of the crisis in the Church, I frequently return in my mind’s eye to living and working in New York City during the tragic event that we mark today, 9/11.  I remember going to a liturgy for the victims in a large and packed church in the heart of Manhattan.  It was only when two very large candles were lit that I began to sob:  “Lamb of God, you take away the sins of the world, have mercy on us.”  In the intense days that followed, I frequently touched that mercy in the atmosphere on the streets, and especially riding the subway.  We were strangers, but our best hope was to be human together and attentive to each other’s pain and each other’s needs.

And so now too, I am drawn to the foot of the cross: “Lamb of God.”  What a horrible, violent, shameful, ugly, fearful, repulsive scene.  What must it have been for Mary, who sang of the greatness of God’s work when Jesus was in her womb, to witness the body of her Son so reduced—to the point that he even seemed drained of his divinity: “My God, my God, why have you forsaken me?” (Mark 15:34) 

And yet in the Gospel of John, Mary is called to focus her attention on the person who is standing beside her: “Woman, behold your son.”  And John is called to turn to Mary: “Behold your mother.”  And so John took Mary into his own home. (John 19:26-27).  This is the powerful DNA of the newly born Church that emerges from Jesus’s radical identification with all forms of human weakness and suffering. 

It is true that this moment of intense purification calls for a creative brainstorm on how to start or strengthen structures and practices of transparency, accountability, and shared decision-making.  But perhaps in the midst of these conversations, we can also work together to identify some of the spiritual wounds that have led to unhealthy and even vicious practices within Church structures and institutions.  For example, many who work within the Church—priests and laity alike—do not experience the warmth of an intimate and human space that nurtures their spiritual, personal and emotional integrity, and also keeps them connected and accountable to the larger community.  Who is paying attention when inevitable personal crises emerge?  Who has time to listen and walk together through those questions and doubts?  What practices can sustain our focus and reinforce our efforts to be in the world, all together, a people of the Beatitudes: poor, meek, pure, just, close to those who suffer?

I think it may be here that Jesus’s words from the cross cry out to each of us: “Behold your son.”  In his Commentary on the Gospel of John, the Church Father Origen explained that Mary had just one Son.  The injunction was not to behold another son, but to behold her one Son, the Christ, in John: “Lo, this is Jesus, whom you bore.”  (Book 1:6)  When we behold the wounded body of today’s Church, we behold the wounded body of Christ. 

“Behold your mother.”  What might it mean for us to “take Mary home” in the wake of this crisis?  There would be many ways to invoke her presence and her closeness to us in this moment.  As our blog recalls, Mary is Mirror of justice, and she is also Refuge of sinners.  Both dimensions of her love can accompany us in the important work of truth-telling and healing in the wake of the unspeakable crimes and abuse that have been revealed.   

Perhaps one of the most powerful ways to bring Mary home is to focus on how her open adherence to God’s great love generates the presence of the living Christ in our world.  This presence can then in turn be our guide in the difficult work of in-depth cultural change.  Within the great mosaic of the Church we may have different roles and ways to respond to the crisis.  For some of us, our contribution might simply consist in helping to create a space of community and love where people are welcomed and accompanied in the ups and downs of our lives, so that many can experience the Church as the home and school of communion. (Novo millennio n.43).

All of this work can be an expression of Mary’s own love and care for the Church, through which, in that stabat, she beholds her own Son.  Mary, Seat of wisdom, Vessel of honor, Help of Christians, pray for us.  Amy Uelmen

First Things Supreme Court Roundup: "Kennedy's Last Term"

Kevin Walsh and I have this year's Supreme Court roundup at First Things: Kennedy's Last Term. In the piece we cover some of the major decisions of the last term, including First Amendment cases (Masterpiece, NIFLA, Janus), cases concerning what we call "the influence of social, technological, and moral change on Supreme Court doctrine" (Wayfair, Carpenter, Murphy v. NCAA), and political gerrymandering/judicial limits cases (Gill, Benisek), as well as a short comment on Trump v. Hawaii. 

Something from the conclusion:

What, then, should we expect from the post-Kennedy Court? Perhaps more of the same. There was not a single 5–4 decision this term in which Justice Kennedy joined with the more liberal wing of the Court. That has never before happened on the Roberts Court. And there were fourteen 5–4 cases in which Kennedy joined with the four more conservative justices to form a majority, including First Amendment cases such as Janus and NIFLA, separation of powers cases like Trump v.Hawaii, political process cases involving political and racial gerrymandering, and a range of statutory interpretation and business cases. This record suggests that, should Judge Brett Kavanaugh be confirmed, we ought to expect a fair amount of continuity rather than radical change.

But in other major areas—areas that happen not to have been addressed this term—the change may be more substantial. Consider, for example, the constitutional law of abortion. Here, Kennedy’s replacement might make a difference, particularly if there is a possibility that a Justice Kavanaugh might join with four colleagues in ending the regime of constitutional abortion law initiated by Roe v. Wade.

Social conservatives have been disappointed before. The Court’s first major abortion case after Justice Kennedy joined the Court was the 1989 decision Webster v. Reproductive Health Services, where it seemed there might be five votes to overrule Roe. Chief Justice William Rehnquist wrote an opinion for four justices that purported to “modify and narrow” Roe, but Reagan-nominated Justice Sandra Day O’Connor went her own way, introducing the “undue burden” standard that has remained the law until today. Scalia, meanwhile, lamented that this missed opportunity to reverse Roe meant that “the mansion of constitutional abortion law, constructed overnight in Roe, must be disassembled doorjamb by doorjamb, and never entirely brought down, no matter how wrong it may be.” Scalia was farseeing. Four years later, in Planned Parenthood of Southeastern Pennsylvania v. Casey, Kennedy joined with O’Connor and Justice David Souter to preserve what they called “the central holding” of Roe.

We are guardedly optimistic that Kavanaugh’s confirmation will eventually result in the rejection of Roe v. Wade. But nobody should expect a quick or complete demolition of constitutional abortion rights. Caution is in order because of both internal Court dynamics and external pressure on the ­institution.

The shift on the new Court should be measured not by the distance between Kennedy and ­Kavanaugh, but between Kennedy and Roberts. On a multi-member Court, the views of the median justice matter most in the close cases implicating the culture wars. And Roberts cares deeply about public perceptions of the Court’s legitimacy. The same concerns that motivate Roberts to embrace minimalism more broadly, as in the cases this term about partisan gerry­mandering and sales taxes, will likely mean even greater caution in these hotter and angrier areas of constitutional law.

Neither should we forget that the result of overruling the Roe/Casey regime is no panacea. It would simply lift restrictions on state legislation. But that is hardly always desirable. We can surely expect some, perhaps many, states to follow the lead of Massachusetts, where legislators passed a NASTY (Negating Archaic Stereotypes Targeting Young) Women Act that repealed abortion restrictions that might in theory have come back into force if Roe/Casey were overturned. New York’s governor has made extensive abortion rights a rallying cry of his campaign for reelection.

Just as the damage done by Roe/Casey is not exclusively legal, neither will it be undone by legal means alone. The Court and dominant cultural opinion shape each other, and the arrow of influence runs in both directions. However much “the mansion of constitutional abortion law” may be dismantled, the constitutional rot at its foundation is the result of powerful cultural forces. Let us not put our trust in judges any more than princes, not only because they are fallible, but also because judges are meant to judge, not to save us from ourselves.

Winters's misrepresentation of Garnett re: public-sector employees and unionization

Over at Distinctly Catholic, Michael Sean Winters links to a funny bit at The Onion and then tosses a bit of off-color snark at MOJ, and a post of mine, regarding my view (expressed zillions of time here) that "it is not the case that the Church's social teachings -- including her teachings on the dignity of work and the rights of workers -- require, or even recommend, support for public-sector unionism (as it exists today, in today's legal and regulatory context)." 

Contrary to what Winters says, I have never said that "the church's teaching that workers have a right to organize does not extend to public sector workers because the church never specifically said it so extends."  What comes before and after "because" in Winters's sentence is wrong.  I think that all workers have a right to "organize" (and, as it happens, the Church has long so taught).  I do believe that it is a distortion of the Church's social teachings to think that those teachings "require, or even recommend, support for public-sector unionism (as it exists today, in today's legal and regulatory context)."  And, I think this "because" not because public-sector unionism wasn't mentioned in Rerum Novarum, but because public-sector unionism (as it exists today, in today's legal and regulatory context) is, all things considered, contrary to the common good.

Winters ends his little jab with what I suppose is intended to be a funny comparison but it seemed more than a little inappropriate (not to mention inapt) to me.  Readers should, of course, decide for themselves.