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.

Thursday, November 29, 2018

The police in the chanceries

As most readers already know, the forces of "the state" in the form of police officers, even Texas Rangers, spent some twelve hours yesterday rooting around inside the Houston Chancery in what the same Chancery does not want to hear called a "raid."  The non-raid, prosecutorial action for records related to clergy sex was, as most readers also already know, of the home-base of the president of the U.S. Conference of Catholic Bishops, Cardinal DiNardo. 

This latest prosecutorial investigation of the Church for things having to do with clergy sex abuse is just one among a large and doubtless soon-to-grow number of similar legal actions across the country: at least fourteen states, the District of Columbia, and the U.S. Department of Justice in what could well become a nationwide investigation and prosecution.  That Pope Francis, acting through the Congregation for Bishops, recently directed the USCCB not to vote on its planned reforms "to hold bishops more accountable," as the agenda items were often described by the press, could conceivably end up having emphatically-unintended legal consequence in the possible federal case against the Church.  The Vatican's stated reason for disallowing the USCCB's planned vote was the meeting Pope Francis had already called for in in Rome in February to address "clergy sex abuse" and related issues on a universal scale. 

As to that "meeting," I am deeply sympathetic to the need for universal Church governance on these issues, and I hope Pope Francis, who after all is the man in charge, will finally provide the rules and enforcement that are necessary to begin to get the wrongs righted and the ship turned closer to the right direction.  I'm not immediately hopeful, however. 

Consider that when Archbishop McCarrick belatedly "resigned" from the College of Cardinals at the end of July, the Vatican's one promise was that McCarrick would be subject to a canonical trial for his alleged crimes.  But, as the Washington Post reported last week (Nov. 23), there is zero evidence that that trial, the mere public beginning of which could begin to repair some broken trust, will ever occur.  It may well occur, but who knows?  There is an easy, available, if imperfect, point of comparison in recent Church history.  When Pope Benedict's butler committed his crime ("aggravated theft"), the butler got a speedy, public canonical trial that the Vatican was eager for the world to witness and take note of.  At the very least, we can say that McCarrick is not getting anything resembling a speedy trial, and there are of course plenty of possible reasons, some of them sinister, for the slow, if any, progress in bringing McCarrick to canonical justice. 

Meanwhile, McCarrick is an old man (88),  and there is ample reason to suppose that the Vatican has little interest in having all the facts possibly at issue in his trial spread upon the record.  It's worth noting in this connection that those who wag their finger and point to Archbishop Vigano's violation of the pontifical secret rarely then draw the obvious practical conclusion that  Archbishop Vigano should be put on canonical trial.  As with McCarrick, can you even imagine what would come out in that court room for the world then to have to face?   Pope Francis will "not say one word" about Vigano's actions and un-refuted allegations, but he also will not cause his legal system at Rome to bring the law-breaking Archbishop to trial.  Why should not Vigano, like McCarrick, be tried for his alleged crime(s)?  (Of course, there is arguably good reason to conclude that Vigano should not be tried because in his case the positive law of the Church was displaced by the demands of higher law, but that's another question and it is emphatically not the position the Vatican has taken in not prosecuting Vigano).

All of which, along with so much more to the same effect in the recent news, brings me to my present point: "in the interest of public utility, crimes ought not remain unpunished" ("publicae utilitas intersit, ne crimina remaneant impunita").  This doctrine, first stated by Pope Innocent III in 1203, was an essential part of the Church's way of authorizing secular governments to create penal systems and punish criminals.  This new doctrine, as Richard Fraher has written, "helped to justify the [then] nontraditional punitive measures which communal governments enacted to ensure stability and curb violence in the new city-states."  Fraher continues:  "the motivation behind the development of the new criminal procedures . . . was the perceived need for efficient enforcement of the canon law, for the purpose of deterring deviant behavior."   And, lest anyone wonder, the historical record makes perfectly clear that deviant, criminal behavior by members of the clergy was crucial in the Church's decisions, as in 1203, sometimes to defer to the secular government in enforcing the criminal law.

Innocent III's accommodation of 1203 is just one example of the Church's out-sourcing some of the dirty work the Church, like the state, wanted, with good reason, to see done and done reasonably well, granted by all concerned that secular justice would fall short of the understood higher demands of higher law.  From Pennsylvania and New York and Texas and probably soon to California, the states are doing work the Church has long relied on them to do.

To be sure, however, what the states are doing today is done against a radically different Church-state "balance" than any Innocent III could have imagined in his worst nightmares.  But, as I have long insisted, at the heart of the problem has been the Church's refusal to follow and enforce her own law.  It wasn't groovy for "the Church of accompaniment" even to acknowledge the Church's legal power over her members, let alone to threaten penal remedies and sometimes enforce them.  But it was the "accompaniment" model that was at work when "Uncle Ted" was spiriting young men off to his long-notorious shore house.  

"The Church of accompaniment" failed us, all of us: the victims, first of all and foremost, but also all the rest of us who were owed a Church that was governed the way Christ intended his shepherds to safeguard the faithful.   So, while I am distressed by pictures of the police raiding one chancery after another, I am relieved and grateful to see the state starting to do for men, women, and children what the ministers of the Church have so miserably failed to do.  

"The Church has its own inherent right [nativum et proprium Ecclesiae ius] to constrain with penal sanctions Christ's faithful who commit offences."  CIC  can. 1311.  The U.S. bishops have acknowledged their awareness that "the McCarrick case" deeply troubles the American faithful, as it should.  When will the Church exercise the duty correlative to her right "to constrain with penal sanctions" in the case of McCarrick, appropriate sanctions not approached by his current life of comparatively comfortable exile in an obscure Kansas Friary?  Why exactly has McCarrick not been reduced to the lay state?  Only Rome can accomplish the available justice in the McCarrick case.  Will it?  McCarrick has still not so much as offered a public apology, only a denial.  


November 29, 2018 in Brennan, Patrick | Permalink

Tuesday, November 27, 2018

Chen Guangcheng on the Vatican's Pending Agreement with China

Regular MOJ readers know that I've regularly [ed.:  Try "obsessively"!] blogged over the years about the PRC's violations of its citizens' religious freedom and of the rights of religious communities, associations, and societies.  In particular, I have been very critical of the regime's assertions of authority over the Roman Catholic Church's episcopal appointments and training and ordination of clergy, and have strongly supported the so-called "underground" Church.  And, I have expressed skepticism about the much-discussed alleged/pending "deal" between the Holy See and the Chinese dictatorship.  (For a different view, read this post - "China and the Vatican: Principles for the Rationally Ignorant Catholic") by our own Adrian Vermeule and Gladden Pappin.)

My sense is that Chen Guangcheng speaks with authority, and persuasively, when it comes to matters of China and human rights, including religious freedom.  So, I urge MOJ readers to check out this piece, "A Pact with a Thief, a Deal with the Devil:  The Vatican's Pending Agreement with China," at Public Discourse.  Here's a bit:    

. . . In China, the CCP seeks to lead and control all. Religion, however, encourages goodness, reverence for the sacred, loyalty towards others, and veneration of an omnipotent spiritual power. Its set of refined values are at odds with the self-serving atheism and extreme party loyalty the CCP has long sought to inculcate in the population. Religion asks for trust in a higher power—higher still than the Communist Party can claim—and faith in ideas that are beyond the reach of the regime’s clutches.

Chinese people have been turning to religion—including Catholicism, Protestantism, Buddhism, and Daoism—in great numbers over the past decades as they emerge from the horrors of botched socialist policies. This trend has caused the CCP to feel threatened and anxious. It sees these disparate groups as competitors, leading it to intensify suppression with growing scope and vigor. . . .

For what it's worth:  It seems important that our evaluations of relations between the Holy See and China, and of the situation for Catholics in the PRC, and of the merits/wisdom of whatever arrangements (or compromises, even) are arrived at should proceed separately from the various ongoing debates about Pope Francis's style, perceived agenda, curial management, attentiveness to sex abuse and misconduct by priests and bishops, etc.  That is, I believe it is a mistake to lump or equate reservations about the pending agreement (or, what we think we know about it) with the various criticisms -- some of which are measured, some of which are quite hostile -- of this pontificate.  My own concerns, in any event, about the situation in and with China are (I hope!) untethered to the often unedifying online and other debates about the Pope, his assumed allies, etc.  Similarly, it does not seem to me that an appropriate respect for, attachment to, and submission to the Pope requires one to endorse the agreement (or, again, what we think the agreement is).    

November 27, 2018 in Garnett, Rick | Permalink

Sunday, November 25, 2018

Christ the King, Ruler of our hearts


On this Feast of Christ the King, I wanted to share the homily delivered at my parish, St. Catherine of Siena in Norwood, Massachusetts by our holy and learned parochial vicar, Fr. Thomas Sullivan: 

The Feast of Christ the King is of fairly modern origin in the liturgical life of the Church, having been established in only 1925. Pope Pius XI had good reason to remind the world of the Sovereign Kingship of Jesus Christ. For centuries, the united Christendom that grew from the remains of the Roman Empire was fracturing along national lines. Divisions were accelerated terribly by the Protestant Reformation and greedy rulers all too willing to sever ties with Pope and Emperor for their own gain. The following centuries saw bloody wars of religion, violent revolutions hostile to Faith, and the rise of secular and atheistic regimes. Everything came to a head with The Great War, the so-called War to End All Wars, the First World War.


Pope Pius XI witnessed Europe’s near suicide -- nominally Christian nations tearing each other apart in an utter failure of Justice, and Mercy, and Charity. Had these Christian men heeded the Holy Father’s warnings and recalled their baptismal brotherhood, perhaps they could have avoided what was soon to follow in an even more horrifying World War. Instead, godless Communism and National Socialism wrought havoc in the ruins of Christian Civilization.


Ideas have consequences… and those who would impart their own brand of order on the world, disconnected from the Truth about God and the human person, wind up imposing disorder and misery. Our Lord warns us of this in his words to Pilate when he says, “You say I am a king. For this I was born and for this I came into the world, to testify to the Truth.”


Pope Pius didn’t establish this great feast only to rebuke world powers. He provided it for the benefit of his spiritual children. The lessons of this feast apply to every human being. Christ’s kingly testimony to the truth is just as relevant to us. And we should listen attentively lest we introduce chaos into our own souls.


The One who comes to testify to the Truth about man is the One who created man. The One who reveals the truth about God, is God himself, incarnate in human flesh. Original sin brought with it the ultimate disorders: body separated from soul in death, and soul separated from God. Christ the King extends the scepter of his clemency to us. The King of the Universe overcomes sin and death as he mounts the throne of his cross. If we submit ourselves to his gentle rule, we will find our way into his heavenly courts.


What does the governance of Christ look like? As Creator he gives order to the whole universe, and everything from the stars in the sky to the smallest seed in the earth follow the course he has set for them. He writes the natural law upon our hearts, inclining man to the good, to life over death, truth over lies, and relationship over isolation.


Christ the King gives us Commandments to obey, laws laid down for our own happiness. Christ the King sits as Judge of the living and the dead, but as King he also extends his mercy towards us. But in his governance, Christ the King is not distant; he doesn’t rule only by dictate. Christ the King has become our exemplar. He willingly submits himself to the same rule.


If we were to describe the ideal earthly king, we’d speak of a man who was of high moral character, not exempting himself from the laws he enforces, just in his decisions and generous to the poor. A man of deep faith who, while occupying a high office, humbles himself before God. In war, we admire the king who leads his men in battle, fighting for a just cause and the protection of the innocent and weak. We want a king who is one of us, so we can aspire to be like him, but also a king who is greater than us, inspiring our confidence and devotion. That’s exactly who Christ is.


Christ the King lives what he commands; he keeps the Commandments without the slightest offense against Charity. Christ the King fights the good fight as one of us, willing to suffer in order to console the sorrowing, even laying down his life for our sake. Though he was the Son of God "he did not deem equality with God something to be grasped," and so in his human nature, Christ the King humbles himself in obeying the will of his heavenly Father. He inspires us to imitate him out of love, and gives us the grace to persevere in that likeness.


By virtue of our baptism, all the faithful share in the Kingship of Christ. How do you exercise that governance? As parents you raise your children to follow the commandments: loving God and giving him due worship, honoring father and mother, and loving your neighbor as your very self. In civil society, you seek to establish an order based on truth, enacting laws in harmony with the order God has put into the world, never violating human dignity. But most fundamentally of all, you exercise your share in Christ’s Kingly office by governing yourselves, by exercising virtue and avoiding sin.


The human soul is a battleground on which occurs a fight for your lives, eternally-speaking. If we allow Christ to rule in our hearts, we will find peace in this life and happiness in the next. If we finally cast down the idols we’ve enthroned in our hearts, then Christ will enter in and never leave us. It’s in the hearts and souls of men that Christ wishes to rule. And when such people come together in Love and Truth, a new Christendom is founded atop the old. The Kingdom of God is at hand.


November 25, 2018 in Bachiochi, Erika | Permalink

Christ the King, Political Theology, and Fr. Miguel Pro

Re-posting this, from four years ago:

Today is the Solemnity of Christ the King.  In my experience, preachers in Catholic parishes don't know quite what to do with this Feast.  Usually, the day's "message" or "theme" has been (again, in my experience) something to the effect that we should ask if we are "putting Jesus first in our lives" (and, certainly, we should). 

And yet . . . especially in light of the emerging (and much needed) focus in the Church on religious liberty and the realities of both aggressive secularism and persecution, it's worth (re-)reading Quas Primas, the encyclical of Pope Pius XI that instituted the feast day in 1925, and remembering that this institution's purpose sounded more in political theology than in personal piety and devotion.  This feast -- which we celebrate, again, this Sunday -- is a reminder that government is not all, that there are things which are not Caesar's, and that everything, in the end, is "under God."

So . . . Here is a little Solemnity-appropriate reading:  Pope Pius XI's Quas Primas.  Great stuff.  "Viva Cristo Rey!"

UPDATE:  More, on Miguel Pro, S.J., here.


November 25, 2018 in Garnett, Rick | Permalink

Christ the King and "Quas Primas"

Re-upping this, from 7 years ago:

In my experience, preachers in Catholic parishes don't know quite what to do with the Feast of Christ the King[.]  Usually, the day's "message" or "theme" has been (again, in my experience) something to the effect that we should ask if we are "putting Jesus first in our lives" (and, certainly, we should). 

And yet . . . especially in light of the emerging (and much needed) focus in the Church on religious liberty and the realities of both aggressive secularism and persecution, it's worth (re-)reading Quas Primas, the encyclical of Pope Pius XI that instituted the feast day in 1925, and remembering that this institution's purpose sounded more in political theology than in personal piety and devotion.  This feast -- which we celebrate, again, this Sunday -- is a reminder that government is not all, that there are things which are not Caesar's, and that everything, in the end, is "under God."

November 25, 2018 in Garnett, Rick | Permalink

Wednesday, November 21, 2018

Garnett, "'There Are No Ordinary People': Christian Humanism and Christian Legal Thought"

Here is a (very) short contribution of mine to a volume celebrating the new-ish casebook, Christian Legal Thought:  Materials and Cases, edited by Prof. Bill Brewbaker and our own Patrick McKinley Brennan.  Cardinal Sarah, Cormac McCarthy, and C.S. Lewis all make appearances.

November 21, 2018 in Garnett, Rick | Permalink

Tuesday, November 20, 2018

Steven D. Smith's *Pagans & Christians in the City: Culture Wars from the Tiber to the Potomac*

Steven D. Smith's long-awaited book Pagans & Christians in the City is now available. I was delighted that Steve invited me to provide a Foreword. I'm reprinting it here in the hope that it will encourage you to read the book. Steve has produced a truly extraordinary work of scholarship--one with profound implications for contemporary cultural and political life.



It was the distinctive claim of the most influential late twentieth-century liberal political philosophers, including most notably John Rawls and Ronald Dworkin, to be proposing theories of political morality that identified principles of justice (and suggested institutional structures and practices to implement those principles) that were neutral as between controversial conceptions of what makes for or detracts from a valuable and morally worthy way of life. This was liberal orthodoxy for something approaching forty years. Of course, it had its critics, including conservatives, natural law theorists and other neo-Aristotelians, certain sorts of utilitarians and libertarians, and even a few unorthodox (“perfectionist”) liberals; but it was far and away the dominant view.

Like a number of other critics, I argued (first in my 1993 book Making Men Moral: Civil Liberties and Public Morality and then in many other writings) that the “antiperfectionism” (or “neutrality”) to which the orthodox liberalism of the period aspired (or at least purported to aspire) was neither desirable nor possible. What Rawls would eventually dub and defend as (merely) political liberalism was—unavoidably—built on premises into which had been smuggled controversial substantive ideas about human nature, the human good, human dignity, and, indeed, human destiny—ideas that competed with those proposed by alternative religious and secular “comprehensive views.”

Today little effort is made by liberals (or what are these days more often called “progressives”) to maintain the pretense of neutrality. Having gained the advantage and in many cases having prevailed (at least for now) on battlefront after battlefront in the modern culture war, and having achieved hegemony in elite sectors of the culture (for example, in education at every level, in the news and entertainment media, in the professions and in corporate America, and even in much of religion), they no longer feel any need to pretend.

Take, for example, the issue of marriage. When, in the 1990s, the effort began in earnest to redefine marriage to include same-sex partnerships, advocates of that position frequently claimed that they merely sought to establish a regime of matrimonial law that was neutral as between competing conceptions of what marriage is or ought to be, and similarly neutral as between competing ideas of good and bad, right and wrong, in the domain of human sexual conduct and relationships. This reflected the orthodox liberal political theory of the day—or, in any event, its rhetoric. But twenty-five years or so later, with marriage having been redefined by the Supreme Court of the United States (and by referenda or legislative action in a number of other nations), virtually no one on either side doubts that marriage as redefined embodies substantive ideas about morality and the human good—ideas that differ significantly (indeed, in key respects profoundly) from those embodied previously in marriage law, ideas that, according to partisans of the redefinition of marriage, are to be preferred precisely because they are superior to the ideas they supplanted.

So now that the pretense of neutrality has been more or less abandoned, and is on its way to being forgotten, what is the substance of the perspective (or ideology or, perhaps, religion) that is now fully exposed to view—and not merely to the view of its critics? And what shall we call it?  In the book you are now reading, Steven Smith sets for himself the task of describing and analyzing it, and he gives it a name: paganism. The label is provocative. Professor Smith’s reasons for choosing it, however, go well beyond a mere desire to provoke. What he perceives (rightly in my view) is that contemporary social liberalism (“progressivism”) reflects certain core (and constitutive) ideas and beliefs—ideas and beliefs that partially defined the traditions of paganism that were dominant in the ancient Mediterranean world and in certain other places up until the point at which they were defeated, though never quite destroyed, by the Jewish sect that came to be known as Christianity.

Of course, some progressives will suppose that Smith is deploying the term “pagan” epithetically, that he is resorting to disparagement or a kind of rhetorical abuse of his religious or political opponents. The term “pagan” (despite being claimed—or reclaimed—by followers of certain New Age movements) continues to have largely negative connotations in our culture, so few people (outside New Age circles) formally identify themselves as pagan. But the first and most important thing for a reader to understand in approaching this volume is that Smith means something very particular in using the word—he uses it to characterize ideas and beliefs that a great many people today, especially those in the ideological vanguard, have in common with people of, for example, pre-Christian Rome. This does not mean that the modern people Smith has in mind share all the ideas and beliefs of ancient Romans (such as belief in gods like Jupiter, Neptune, and Venus), but rather that some of the central ideas and beliefs that distinguish them from orthodox Christians and Jews—and, one could add, Muslims—in our day are ideas and beliefs they have in common with the people whose ideas and beliefs Christianity challenged in the ancient world.

Secular progressives, no less than other people, or people of other faiths, have cherished, deeply held, even identity-forming beliefs about what is meaningful, valuable, important, good and bad, right and wrong. They may not believe in God, or a transcendent and personal deity, but certain things (as Professor Dworkin expressly acknowledged—indeed, asserted—in work published near the end of his life) are sacred to them—things they live for and would be willing to fight and even die for (racial justice, LGBT rights, environmental responsibility, etc.). They have faith—and a faith. They generally regard it as a reasoned and reasonable faith, but that doesn’t mean it’s not a faith. (Many Christians and Jews regard their faith as reasoned and reasonable. Indeed, it is a doctrine of Catholicism that true faith is reasoned and reasonable.) So what is it about the secular progressive faith that warrants Smith’s labeling it “pagan”? After all, though not theistic, it is certainly not (in any literal sense) polytheistic. Smith explains:

Pagan religion locates the sacred within this world. In that way, paganism can consecrate the world from within: it is religiosity relative to an immanent sacred. Judaism and Christianity, by contrast, reflect transcendent religiosity; they place the sacred, ultimately, outside the world.

Now, Smith concedes that this characterization oversimplifies things a bit. But the oversimplification is mainly in the description or characterization of Judaism and Christianity, not secular progressivism. The biblical faiths conceive God as transcendent, to be sure, but not in a way that excludes elements of divine immanence. In Jewish and Christian doctrine, a transcendent God sanctifies the world of human affairs by entering into it, while still transcending it. And God’s transcendence means that for the believer this world is not one’s true or ultimate home—we are “resident aliens.” Smith contrasts Jews and Christians with pagans on precisely this point: “The pagan orientation . . . accepts this world as our home, and does so joyously, exuberantly, and worshipfully.”

Now, Christianity, had it been a religion of pure and exclusive transcendence, might have simply rejected this world and not concerned itself with its affairs. The authorities of pagan Rome might then have left it alone, treating it as one more odd or exotic religion. But it’s not that kind of faith. So it took an interest in the world’s affairs and developed ideas about such things as authority; obligation; law, including natural law; justice; and the common good—ideas that challenged pagan ideas in practices in a variety of areas, some of them profoundly important.  A central area was sex.

Smith argues that within the pagan “matrix of assumptions, the Christian view of sexuality was not only radically alien, it was close to incomprehensible.” About this he is certainly right historically. But consider that the Christian view of sexuality is today, within the “matrix of assumptions” of secular progressivism, perfectly aptly described as “not only radically alien, but close to incomprehensible.” Consider again the debate over marriage, as just one of many possible examples. The biblical and natural law conception of marriage as the one-flesh union of sexually complementary spouses is not only “alien” to secular progressives, who understand “marriage” as a form of sexual-romantic companionship or domestic partnership, but nearly incomprehensible—except as a form of bigotry against people who are attracted to and wish to marry (as progressives understand the term) people of their same sex. Or consider the view that nonmarital sexual conduct and relationships, including homosexual ones, are inherently immoral. That, too, is regarded by a great many secular progressives as not only unsound, but unreasonable, outrageous, scandalous, even hateful. They can account for it, if at all, only as religious irrationalism, bigotry, or, as many today now claim, a psychopathology.

As the historian Kyle Harper notes in a passage of his recent book on the transformation of beliefs about sexuality and morality in the ancient world (quoted by Smith), sexuality “came to mark the great divide between Christians and the world.” Christian ideas about sexual norms (rejecting fornication, adultery even by men, homosexual acts, pornographic displays, and so forth) were revolutionary; and the pagan establishment was no more welcoming of revolutionaries—even nonviolent ones—than any other establishment is. So paganism could not, and did not, tolerate the Christians—even when Christianity was far too weak to pose any real challenge to political authority. It was not that Roman authorities refused to allow minority religions of any kind in the empire; those that could coexist with the dominant paganism were allowed to do just that. But the Romans perceived Christianity as a threat—and Christian ideas about sex (and, in consequence, about Roman sexual practices) figured significantly in that perception. They feared that Christianity would, in Smith’s evocative phrase, “turn the lights out on the party.” And that, of course, is what Christianity eventually did.

But in our own time the lights have been turned back on and the party is going again. In the 1940s, Alfred Kinsey, the Saint Paul of the modern sexual revolution, convinced a lot of people that sex is a human need—that psychological health and wholeness generally require it, and that Judeo-Christian norms of sexual morality, when embraced, result in stilted, even twisted, personalities. In the 1950s, Hugh Hefner, neopaganism’s very own Saint Augustine, persuaded people that pornography was, or could be, innocent fun and that the “Playboy philosophy” of sexual indulgence was the way for up-to-date, sophisticated people to lead their lives. The “gay rights” or “LGBT” movement has made the affirmation of homosexual conduct and relationships the “civil rights cause” of our day. Disagree? “Bake the cake, bigot!”

Christians and other traditional religious believers have been knocked back on their heels. Reversing the sexual revolution (despite the growing evidence of its doleful social consequences, especially for children) in any of its major dimensions seems inconceivable. Few believe that its forward march can be paused or even meaningfully slowed down. The vast majority of Christians think that the most they can hope for in this new epoch of pagan ascendancy are some protections for their own liberty to lead their lives as they see fit, in conformity with their faith, and not to be forced to facilitate or participate in activities that they cannot in good conscience condone. Progressives say, after all, that they are all for individual autonomy and liberty. Of course, that claim will likely prove to be, to borrow a phrase from Hillary Clinton, “no longer operative.” Many Christians and other believers despair even of the possibility of protecting their children from being indoctrinated into the beliefs of the governing elite, the new ruling class (or what perhaps might better be described as the old, but repaganized, ruling class). They believe we have entered a new Diocletian age. They not unreasonably suppose that it is precisely this reality that is being signaled when progressive intellectuals, such as Mark Tushnet of Harvard Law School, say things like this:

The culture war is over; they lost, we won. . . . Taking a hard line (“You lost, live with it”) is better than trying to accommodate the losers, who – remember – defended, and are defending, positions that liberals regard as having no normative pull at all. Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown. (And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.) I should note that LGBT activists in particular seem to have settled on the hard-line approach, while some liberal academics defend more accommodating approaches. When specific battles in the culture wars were being fought, it might have made sense to try to be accommodating after a local victory, because other related fights were going on, and a hard line might have stiffened the opposition in those fights. But the war’s over, and we won.

So there you are. The neopagans are in no mood to be “accommodating.” Christians and others who dissent from progressive orthodoxy can expect “the hard-line approach.” They are to be treated like the defeated Germans and Japanese after World War II.

For Christians and other dissenters from neopagan orthodoxy, then, the question is, What is to be done? How should they respond to Professor Tushnet’s “hard-line” approach—an approach that will indeed be, and in fact is being, implemented by people who want to ensure that Christians never again get near the light switch and that they are properly punished for having switched off the lights to the party in the first place? It’s a question that, for Christians, is as urgent as it is important. But to even begin answering it, we need a sober, penetrating, deeply insightful diagnosis of our condition and account of where we are and how we got here. Professor Smith deserves our deep thanks for providing it.

Robert P. George

McCormick Professor of Jurisprudence

Princeton University

November 20, 2018 | Permalink

"Human Dignity was a Rarity Before Christianity"

Also from the Church Life Journal, here's David Bentley Hart:

We speak today very easily, if not always sincerely, of the intrinsic dignity of every human person. For us, this is merely a received piety, and one of immemorial authority. And yet, if we take the time to wonder just how old a moral intuition it is, there is a good chance that our historical imagination will carry us only as far back as the “Age of Enlightenment” and the epoch of the “Rights of Man.” But our modern notion that there is such a thing as innate human worth, residing in every individual of every class and culture, is at best the very late consequence of a cultural, conceptual, and moral revolution that erupted many centuries earlier, and in the middle of a world that was anything but hospitable to its principles. And I am tempted to think that the nature of that revolution became visible for the first time only in the tale of Peter’s tears. . . .

November 20, 2018 in Garnett, Rick | Permalink

"Why Is Christian Citizenship a Paradox?"

An (as usual) interesting piece from the Church Life Journal, published at Notre Dame.   Here's a bit:

. . . We often wonder whether the Christian faith entails a political doctrine, as it does a social one. This question is not relevant. For if Christians necessarily practice their citizenship, if there is such a thing as Christian citizenship, it does not designate a political regime which might be specifically Christian, in virtue of the following principle: “My kingdom does not belong to this world (John 18:36). In belonging to Christ, Christians belong to a kingdom which does not belong to this world but rather to God, a kingdom which has no necessary or even privileged political expression. Christianity does not entail any particular political doctrine, whether it be established or competing with it—and thus always of the same nature as itself: Christians live in the city without belonging to it and without supporting a competing political doctrine. The question of Christian citizenship is not one of which political doctrine might be derived from Christianity, but rather one of its very absence. Christianity does not consist of promoting or practicing a political doctrine in any way: it is essentially a way of living in the city. . . .

. . . Far from entailing a theocratic doctrine which would confer temporal power upon the ministers of the will of God, Romans 13:1 theorizes, beyond the relationship of the Christians to the law and the state, the main conditions of the common good as a universal good. These conditions, which I analyze in detail in my book, are threefold: the non-idolatry of power, the search for peace, and the respect for freedom, first and foremost religious freedom. However, they may also be summarized in a single condition: the patience of love. By the end of this work, the Pauline reference to the will of God completely loses its status of an “anti-democratic transcendence.” On the contrary, it becomes clear that it theorizes the conditions of a true democracy, if one thinks, following Claude Lefort, that a true democracy is not first and foremost a political regime and that the impossibility of appropriating power to oneself is its fundamental condition.[25] Only then might one consider that Christian citizenship, which has no necessary or even privileged political expression, nevertheless favors the establishment and preservation of a form of government and society that can be conceived of today as the best guarantee of the universal common good.

November 20, 2018 in Garnett, Rick | Permalink

Monday, November 19, 2018

Legal Spirits 002: The Peace Cross Case

Mark Movsesian and I have our second Legal Spirits podcast up. This one is about the cert. grant in the so-called "Peace Cross" case out of Maryland. The 2-1 opinion in the Fourth Circuit was American Humanist Association v. Maryland-National Capital Park and Planning Commission.

Mark and I go through the facts (some of which are contested), the circuit opinion, the cert. petition, and the arguments about the Establishment Clause in these state-sponsored religious display cases likely to be confronted by the Supreme Court.

November 19, 2018 in DeGirolami, Marc | Permalink