Mirror of Justice

NO “WALL OF SEPARATION”

I enjoyed this article today in First Things by Phillip Munoz, noting the difference in the interpretation of the Establishment Clause. From the article:

What Thomas understands—and what the Chief Justice seems to ignore—is that the Court’s protection of religious freedom under the Free Exercise Clause necessarily will be constrained by competing and contrary precedents already in place under the Establishment Clause. “Until we correct course on that [Establishment Clause] interpretation,” Thomas wrote, “individuals will continue to face needless obstacles in their attempts to vindicate their religious freedom.”

Forming Consciences for Faithful Citizenship and Voter Intent

Just out: a very short piece I published with Catholic News Service, "Forming Consciences for Faithful Citizenship Offers Guidance, Not Directives," - reflecting on the latest version of the US Conference of Catholic Bishops' voter's guide, and emphasizing the role of voter intent - and not simply the "non-negotiable" or "intrinsically evil" character of particular policy choices - when evaluating the moral character of decisions about voting.   

My more extensive critique of an oversimplified appeal to "non-negotiables" is available in this 2008 essay, "It's Hard Work": Reflections on Conscience and Citizenship in the Catholic Tradition.

Moreland and Pojanowski, "The Moral of Torts"

Michael Moreland and Jeffrey Pojanowski have this very interesting paper, "The Moral of Torts"--part of a forthcoming book on Christianity and Private Law--that offers a natural law account of tort law (focusing in part on some sections of Thomas Aquinas's Summa). Among other things that I greatly appreciated about the chapter were the central position it ascribed to intentional torts and its criticisms of the ways in which some "internalist" accounts of tort law are a little shy about setting out normative criteria for what constitutes wrongfulness in tort law. Have a look.

"Lift Every Voice!"

I hate to see a song I love, "Lift Every Voice and Sing," become a subject of political controversy. The song is often described as the "national anthem" of African-Americans. I have no problem with that. It does not mean that the song doesn't belong to all who wish to embrace its wonderful message; nor does recognizing its special historical significance for those of our fellow citizens whose ancestors were brought as slaves mean that it challenges or displaces "The Star Spangled Banner" as the American national anthem.

"Lift Every Voice" is a hymn--it honors God and recognizes His sovereignty and our dependency on His grace--and it patriotically honors our nation--calling on us to be "true to our native land." There is nothing anti-American about it! Indeed, I myself, as someone who loves our country and dedicates himself to defending its ideals and institutions, embrace its sentiments with all my heart. Consider these magnificent words:

God of our silent tears
Thou who has brought us thus far on the way
Thou who has by Thy might
Led us into the light
Keep us forever in the path, we pray
Lest our feet stray from the places, our God, where we met Thee
Lest, our hearts drunk with the wine of the world, we forget Thee
Shadowed beneath Thy hand
May we forever stand
True to our God
True to our native land

My beloved friends, there is nothing in these words not to affirm, embrace, and be inspired by--whether the color of one's skin is black or white, whether one's ancestors came from Africa, Europe, or Asia. We should enjoy listening to it when it is sung, and we should join--indeed heartily join--in the singing. But, gosh, let's not let it be politicized so that singing or not singing it is made a symbol of one's place on the ideological spectrum in our sadly and dangerously polarized society. Some things are sacred--beautiful hymns to God, for example--and should be beyond ideology and above the fray of politics.

Lift every voice!

Don't Miss This Grace-Filled Conversation Between Gloria Purvis and Louis Brown on Race

Kathryn Lopez of the National Review Institute brought Gloria Purvis and Louis Brown together for a virtual discussion on race in America. The beautifully grace-filled and deeply insightful discussion can be viewed here.

Espinoza and What Comes Next

Espinoza v. Montana Department of Revenue is an important win for the principle of choice in religious matters, as well as for choice-based programs in education. Its specific holding is somewhat limited, but its implications are broader. Doug Laycock and I have a piece on SCOTUS Blog analyzing the decision, drawing from our amicus brief in the case (for the Christian Legal Society, the USCCB, the Southern Baptists, the Orthodox Union, the Latter-Day Saints, and others) and from our work over the years. Our piece emphasizes a couple of points, with representative excerpts here:

First, although the decision specifically forbids only exclusions from benefits based on a school's status as religious, its reasoning points toward forbidding exclusions even when they allegedly rest on a school's religious use of the funds. Among other things,

the [status-use] distinction collapses in the context of religious K-12 education. Religious schools typically teach the same secular subjects as other schools — English, history, science, math — while also teaching a religion class or integrating relevant religious perspectives into the secular subjects. The religious elements could be characterized as religious “uses.” But if a state denies otherwise-available funds for classes on secular subjects because the school also offers these religious elements, then it goes beyond not funding religion. It imposes a penalty on the secular educational activity — potentially a large penalty, if all funds are denied — because of the religious teaching accompanying it. It penalizes the school, and those it serves, because of its religious identity, its religious functions, and some of the uses to which its money is put.

Second, we explain that equal access for religious providers to government educational benefits promotes both formally neutral treatment of religion (no religious classifications) and substantively neutral treatment (respecting voluntary choice in religious matters, minimizing incentives for or against it). Then we look to other upcoming cases where those goals may conflict; in such cases, we argue, "neutral incentives and voluntarism should be the fundamental goal." The religion clauses treat religion differently from other activities in order to promote freedom of private individuals and communities in religious matters. This is how we approach the subject of religious exemptions:

Critics have sometimes asked whether it is consistent to require equal provision of funds for religious and secular service providers while also allowing, or even requiring, exemptions for religious conduct in the face of generally applicable laws or regulations. Next term the court will take up the question of whether to overrule its decision in Employment Division v. Smith and once again require exemptions in some cases.

     If a law creates a conflict with a sincere religious practice, it prevents people from exercising voluntary religious choice and thus violates substantive neutrality. The threat of civil or criminal penalties or loss of government benefits profoundly discourages the prohibited religious practice. Exempting the religious practice from regulation eliminates that discouragement, and it rarely encourages the exempted practice.

Journal of Law and Religion, Volume 35

The Journal of Law & Religion, Volume 35 Issue 1 is free to read until July 31. 

https://www.cambridge.org/core/journals/journal-of-law-and-religion

The scholarship is, as always, excellent. As someone currently studying religious freedom in China, I found the three articles on that subject to be of great value.

Komonchak on John Courtney Murray, SJ

Longtime (now retired) Catholic University of America theologian Fr. Joseph Komonchak has worked extensively but quietly on the thought of American Jesuit Fr. John Courtney Murray, SJ over several years. Some of us with interests in Murray have known about Komonchak's work and his valuable efforts to locate Murray's thought amid other theological developments in the mid-twentieth century, and previously unknown writings by Murray were unearthed by Komonchak in various archives. See "The Crisis in Church-State Relationships in the U.S.A.," Review of Politics 61 (1999): 675-714; and "A Common Enemy, A Common Cause," First Things (October 1992) (criticizing the Supreme Court's Establishment Clause decisions in Everson v. Bd. of Education and McCollum v. Bd. of Education).

Fr. Komonchak has now posted to a blog site the fruits of his many years of research on Murray. I won't try to summarize the many interesting dimensions of Murray's thought Komonchak offers there, but one highlight for me is the manuscript of a series of lectures Murray delivered at Loyola College (Baltimore) in 1940 on "The Construction of a Christian Culture." At one point, Murray said:

For three centuries men have chipped away at Christian truth, doubting, denying, destroying, rebelling. But the hoped-for result has not come about: the liberation of man, his achievement of full humanity. Every thoughtful writer today is agreed that the age of "humanism" has dehumanized man, the age of individualism has depersonalized him, the age of liberalism has enslaved him. Hence my first premise is that we have definitely reached a time to stop denying and affirm, to stop destroying and construct, to stop murdering ourselves and others, and begin to live.

What emerges from Komonchak's labors is a more complete and complex account of Murray. Those who have flipped through Murray's We Hold These Truths (1960) might come away thinking "the Murray Project" was merely baptizing American constitutionalism in the waters of Catholic political thought. There is some of that in Murray, to be sure, but Murray was also a more trenchant (and pessimistic) cultural critic and sophisticated theologian than that caricature gives us. Those interested not just in Murray himself but more generally in the last century of Catholic social thought owe a debt of gratitude to Fr. Komonchak, who concludes with this introduction to the material on his site:

The first batch of essays tells of the early writings of John Courtney Murray soon after he returned from Europe after having completed his doctoral studies in Rome. He was already intensely interested in what he would come to call “the spiritual crisis in the temporal order.” This is evident in two sets of lectures he gave in the early 1940s in which he lay out the doctrinal and theological grounds for the Church’s mission and activity in society and culture. The crisis was rendered more acute by the outbreak of the Second World War, and Murray was among those who thought it possible, indeed necessary, for Catholics to engage in inter-religious cooperation for believers to meet the crisis and to be able to take part in the restoration of order once the War was over. This proposal was not welcomed by many Catholic churchmen and theologians, and Murray had to engage in lengthy conversations, in published articles and in private conversations, to defend his position against the charge that it would lead to religious indifferentism. Many Protestants also were reluctant to cooperate with Roman Catholics who were, as they believed, ready, should they become a majority, to deprive them of their religious freedom.

From both sides, then, Catholic and Protestant, the issue of religious freedom became critical, and this explains why, beginning in the mid-1940’s, Murray turned his attention to that subject and began the series of publications that would lead him again into controversy, make him subject to high Roman censure, and end with his vindication at the Second Vatican Council. Whereupon, as he put it right after the Council, Catholics could “get on to the deeper issue of the effective presence of the Church in the world today”–which was, of course, the passion that first inspired him.