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.

Wednesday, March 30, 2022

An Interview with CUA's New President, Peter Kilpatrick

The Catholic University of America has named (my former Notre Dame colleague) Peter Kilpatrick as its next president.  (Kilpatrick will succeed my other former Notre Dame colleague, John Garvey.)  Here, thanks to The Pillar, is an interesting interview with Kilpatrick about (among other things) the nature and importance of a distinctively Catholic university and the challenges that exist to the building and thriving of such an institution.  Here's a bit:

For me, a Catholic university is a unique place of higher learning, where we embrace the fusion — the integration —  of faith and reason, where we celebrate that there is only one truth about the world and about the human person in the world, and that’s that it all flows from God. 

And it's only possible to do that at a university like a Catholic university or another religious university really authentic to its faith principle. 

I think the other important thing about a Catholic university is that you integrate the disciplines because knowledge is not bite-sized pieces. Disciplines, which came about in the late 19th century at the German universities, are not intended to be in isolation. They are intended to be in context of the global society and the society in the culture that you're in. 

And unfortunately, so much of what’s done at many other universities is to silo the disciplines. And that's not what a Catholic university is about. We're about integrating the disciplines and putting it all in context. So my understanding of Catholic universities is that they have this unique role to play integrating faith and reason and integrating the disciplines. 

March 30, 2022 in Garnett, Rick | Permalink

Tuesday, March 29, 2022

The Australia School and Politico-Theological Inquiry: Joel Harrison Responds

[In response to some thoughts I had posted about interesting developments in law and religion in Australia, Professor Joel Harrison had these illuminating observations, which he has given me permission to post. MOD]

In his blog post, Professor DeGirolami raises a possible emerging ‘Australian School’ – Australian-based scholars who are interested in Christian theological concerns and justifying religious freedom in light of this. Professor DeGirolami’s post spurred a few initial thoughts in response; I’m grateful he invited me to share them here.

First, although developing a theological jurisprudence is certainly not something unique to scholars in one place, is there something about Australia that may allow this to grow? One possible angle for reflection is on a ‘trans-Atlantic’ difference, and its continuing relevance to Australia. 

The trans-Atlantic difference puts me in mind of the theologians Stanley Hauerwas and John Milbank. Hauerwas the American is anti-Constantinian and sees the violence of the State as the primary thing to resist. Separation is necessary to maintain a prophetic difference – or even just survival of the Church as the Church. Although much indebted to Hauerwas, Milbank the Brit understands Christendom and Christianity as coterminous – Christianity means (complexly) instantiating a political-spiritual project. More broadly, and as generalisation, the boundaries of church and State discourse or what is a matter for theology and what is a matter for law are more blurred on one side of the Atlantic.         

Of course, Australia is not either country. It is a former colony and still part of the Commonwealth, but it also has a strong United States-flavour. Constitutionally it is sometimes described as having a ‘Washminster’ system, with its blending of federalism and responsible government. Culturally and politically, it can swing between looking to one country or the other.  

That said, I wonder whether it is still possible to have more of a ‘British’ sensibility in Australia and talk about cooperative arrangements between church and State, or even develop public debate in theological terms. We can add to this an ongoing relationship to First Peoples, who are partly recognised at State and federal level as maintaining a spiritual or metaphysical connection with the land, as judges of the High Court of Australia recently stated. Although Australia was not permitted to have an established church, this requirement was not opposed to a religiously infused culture and politics. That is not entirely dissimilar from the United States, but Australia perhaps historically went further – maintaining something of that British inheritance in a colonial context. To this day, for example, despite some voices in Australia saying otherwise, it is very difficult to claim a ‘Rawlsian consensus’ of public reason or even that this is something of significant debate.  

Second, this growth in theological concern takes place against an emerging culture war dynamic. Recent years in Australia have seen a remarkable shift. Matters that were previously uncontroversial – like a Catholic, Jewish, or Muslim school’s liberty to hire only members of the religious tradition – are now challenged. It is not difficult to find outright hostility to religious groups or at least non-comprehension. (In one example, an Australian rights group argued the State needed to protect nuns from the Catholic Church, which was infringing their right to private and family life.) This takes place against the backdrop of numerous parliamentary inquiries into religious liberty. Different lobby groups on both sides have sprung-up. With each new inquiry they have escalated their rhetoric, stating the opposing side poses an existential threat that demands immediate action (and presumably more funding and support). In this context, the turn to theological frames (often a version of postliberalism) can reflect an interest in finding resources beyond the culture war. 

It serves a critical function and a productive function. 

Critically, the turn to theology helps to unmask any continuing claims to neutrality. Most notably in the context of religious liberty debates, it helps us to understand how the appeal to autonomy as promoted within liberal frames is not divorced from a theological view – what it means to be free and how this understanding came to be, what the role of civil authority is in relation to this. A theological turn offers insight into our current context: different groups engaging in an agonistic discourse of incommensurable claims to liberty. 

Productively then, the turn to theology looks for an alternative. Thus, we see language of the common good, duty, virtue, solidarity, peace, and charity developed in aid of asking what the shape of a complex, good society should be. 

This raises a final important point that I think should shape any apparent ‘school’ interested in theological jurisprudence. Often religious liberty claims are framed as simply protecting a particular community’s own backyard: my liberty, my autonomy, my freedom from x. However, this turn to theology aims at something more – contemplating the future of our shared life. This is not a question simply for Australian-based scholars, of course.  But I’m certainly glad we splendidly named ‘young upstarts’ can make a contribution (and await criticism).

March 29, 2022 in DeGirolami, Marc | Permalink

Sunday, March 27, 2022

Movsesian on Law, Religion & COVID-19

There's a new issue of the Journal of Law & Religion available to read online for free, and it includes an intriguing article by friend of MoJ Mark Movsesian, "Law, Religion, and the COVID-19 Crisis."  From the abstract:

As a comparative matter, courts across the globe have approached the problem in essentially the same way, through intuition and balancing. This has been the case regardless of what formal test applies, the proportionality test outside the United States, which expressly calls for judges to weigh the relative costs and benefits of a restriction, or the Employment Division v. Smith test inside the United States, which rejects judicial line-drawing and balancing in favor of predictable results. Judges have reached different conclusions about the legality of restrictions, of course, but doctrinal nuances have made little apparent difference. With respect to the United States specifically, the pandemic has revealed deep divisions about religion and religious freedom, among other things—divisions that have inevitably influenced judicial attitudes toward restrictions on worship. The COVID-19 crisis has revealed a cultural and political rift that makes consensual resolution of conflicts over religious freedom problematic, and perhaps impossible, even during a once-in-a-century pandemic.

March 27, 2022 in Vischer, Rob | Permalink

The Australia School

I'm back from a superb conference orchestrated by Professor Helen Alvaré at the Liberty & Law Center at George Mason Law School on some of the current and future challenges and prospects in law and religion. I'll have more to say about my paper, "The New Disestablishments," by and by, but for the present I will note that I was grateful for improving and insightful criticisms from the group, including those of Professor Fred Gedicks, who was my commenter.

One of the things that occurred to me at the conference was that it seems a new school of thought about religious liberty is emerging in some young upstart scholars, in Australia. I'm only just coming to learn of The Australia School, and so I am going to miss what are new and interesting scholars in it. Indeed, calling it The Australia School assumes some kind of unity of thought, and I am certainly not suggesting there is such unity. But at the very least, The Australia School will include scholars like Professor Joel Harrison and his Post-Liberal Religious Liberty: Forming Communities of Charity; Professor Alex Deagon (who presented at the conference) and his From Violence to Peace: Theology, Law and Community; and Professor Neil Foster, who has written about when it is and is not appropriate for courts to decide matters that impinge on religious doctrine. I am missing many, I'm sure (and apologize preemptively to those I have not discussed). I don't want to overgeneralize, but this is a blog post, and it would be boring not to offer at least some thematic observations about The Australia School. So are there any discernible themes? 

Both Harrison and Deagon are deeply interested in Christian theological concerns, and both offer justifications for religious freedom rooted in theological considerations. Both rely on the work of John Milbank--not identically, but substantially. Indeed, I have a review over here of Harrison's book, trying in summary form to describe the way Harrison reimagines religious freedom and devises justifications for it that are new and represent a different direction (with words of praise, though there was a criticism or two also!). Foster also is interested in the issue of the relationship of religious doctrine to civil power. And Deagon emphasizes issues of the unity of peaceful co-existence, also through a theological lens. Both the influence of Milbank on these scholars and their theological orientation are notable; I can discern only very few similarly oriented projects over in our corner of the world. One question I've been thinking about is just why. 

As I say, I'm just learning about The Australia School and there are likely many differences and disagreements already emerging within it. But it's a fresh and interesting development in the law and religion world. 

March 27, 2022 in DeGirolami, Marc | Permalink

Saturday, March 26, 2022

Religious Tests for Public Office

We can all well recall the infamous moment when Senator Dianne Feinstein scolded Amy Coney Barrett, then a nominee for a judgeship on the U.S. Court of Appeals, that "the dogma lives loudly within you."

Many of us took the opportunity to applaud a person's faithful commitment, and, indeed, I still have my own t-shirt that reads: "The Dogma Lives Loudly Within Me."

But we also more soberly recognized this as an expression of anti-Catholic bias and an improper attempt to invoke religiosity as a disqualification for judicial office.

It is just a wrong when it comes from another direction, trying to evaluate whether a person is religious enough for judicial office.

Judge Ketanji Brown Jackson has proven herself to be a person of strong character and patient generosity, illustrating and saying that her faith has been a source of strength for her.

But that apparently was not enough for Senator Lindsey Graham who had the temerity to ask her: "On a scale of 1 to 10, how faithful would you say you are in terms of religion?" (Whether Graham meant the question or instead was posing a negative parallel to the Justice Barrett incident, the question remained way, way out of bounds.)

Judge Jackson answered appropriately in this way: "I am reluctant to talk about my faith in this way... I want to be mindful of the need for the public to have confidence in my ability to separate out my personal views."

I was thinking of the answer of Saint Joan of Arc to a similar hostile question and how apt it would have been here: "If I be not in a state of grace, I pray God place me in it; if I be in it, I pray God keep me so."


March 26, 2022 in Sisk, Greg | Permalink

Purposive interpretation *as* judicial restraint: The Legal Process School as the end of a long era

Most people today tend to associate purposive interpretation--of statutes, say, but it could be of anything--with "judicial activism" and therefore an absence of judicial restraint. The alignments seem to be: textualist interpretation--->restrained interpretation; purposive interpretation--->activist interpretation.

But I'm learning that it was the view of some legal process theorists (Bickel, Wellington, Jaffe, maybe Fuller) that purposive interpretation promoted and was in the service of judicial restraint. As Neil Duxbury puts it in his article on the Legal Process school (Faith in Reason: The Process Tradition in American Jurisprudence): "As with the articulation of reasons, they [legal process theorists] argued, the purposive interpretation of statutes fosters judicial restraint. For such interpretation allows not the imposition of any old purpose onto a statute, but only 'a purpose which may reasonably be imputed to those who uttered the words.' [citation here to a 1957 piece by Bickel and Wellington]....Judicial discretion in the interpretation of statutes, [Jaffe] argued, should be exercised...where the Court is uncertain of the clear purpose of the statute."

In fact, one can see the view that purposive interpretation is an appropriate judicial function in constitutional adjudication of the 18th and 19th century quite regularly. But I was surprised to see it as still so fully embraced by the Process theorists. As sifting out, through reasoned elaboration, the principles the lawmaker intended for the law. And yet, this way of thinking is so different from the way many think about judicial restraint today. Something like the opposite way.

March 26, 2022 in DeGirolami, Marc | Permalink

Friday, March 25, 2022

Agreement on the moral authority of original meaning

Adrian Vermeule and Conor Casey have written an uncharacteristically pugnacious recommendation for a forthcoming article by Joel Alicea, The Moral Authority of Original Meaning. The primary thrust of Alicea's article is to provide "a natural-law justification for originalism grounded in the legitimate authority of the people-as-sovereign, authority that is necessary for achieving the common good." Alicea frames the paper as a response to Vermeule's argument, advanced emphatically here at MOJ, that originalism is "an essentially positivist approach." Judging from Vermeule's and Casey's response, Alicea's arguments have carried the day to the contrary. 

In making his earlier claim about the essentially positivist nature of originalism, Vermuele acknowledged that some had previously defended the compatibility of classical natural law jurisprudence and original-law originalism. But he argued that combining originalism and common-good constitutionalism results in an approach that is "intrinsically unstable, because it attempts to combine an essentially positivist approach with an essentially nonpositivist one. These are oil and water ...."

My initial assessment of this claim about the incompatibility of originalism and common good constitutionalism was that it was wrong. After all, (1) common good constitutionalism just seemed to be another adaptation of the classical natural law tradition that, in comparison with other adaptations' emphasis on law's efficient and material causes (i.e., lawful authority and promulgation), placed greater emphasis on the final cause of law (i.e., for the common good of the community for which it is promulgated); and (2) Jeff Pojanowski and I had already established the compatibility of the classical natural law tradition with what we called original-law-ism, or original-law originalism. Our arguments complemented argumentation in a similar vein by Lee Strang, who had been expounding the compatibility of the classical natural law tradition and constitutional originalism before we published our contribution to this literature. 

It seems my initial assessment was correct and that Vermeule has backed off the claim that originalism is "an essentially positivist approach." This latest blog post about Alicea's paper is the most recent indicator of this salutary development. (I'm not aware of co-author Conor Casey having previously advanced the same "essentially positivist" claim as Vermeule.)

Rather than press the claim that originalism is essentially positivist, Vermeule and Casey dispute neither that Alicea's approach is originalist nor that it is non-positivist. They argue not that Alicea is wrong, but rather that he has justified "uncontroversial generalities." They contend that what they call Alicea's "generic, lowest-common-denominator version of originalism" amounts to "thin gruel." More particularly, they say Alicea establishes only that:

[F]irst, all officials are compelled to faithfully adhere to and interpret the meaning of X, Y or Z provisions posited and fixed by a legitimate political authority at a given historical point in time – whether 1789, 1868, or 1992 – unless and until those provisions are lawfully repealed or replaced; and second, interpreters of the law (such as judges) ought not to displace the posited law by reference to all-things-considered moral decision making.

Vermeule and Casey assert that these two propositions of generic originalism are "what we take the classical legal tradition to entail." If the classical legal tradition is not essentially positivist, then neither is this generic originalism. 

As for whether this generic originalism amounts to "thin gruel," that may be more a matter of taste than anything else. If Alicea's arguments are correct—and Vermeule and Casey do not dispute them—they exclude many non-interpretivist theories of the sort that proliferated through the 1970s, 1980s, and 1990s. (Believe it or not, young 'uns, that's how these arguments were once framed: "interpretivist" versus "non-interpretivist" theories.) Originalism's success in this regard may be why some theorists jumped off the non-interpretivist track and relabeled the previously non-interpretive aspects of their approaches as interpretive. If one believes that there's nothing that interpretation just is, then this amounts to little more than marketing the same old non-interpretivism under a different label. But whether interpretation is a distinctive activity with a distinctive object is a question for another day.

Vermeule has previously acknowledged the existence of nonpositivist originalism by sometimes more carefully limiting his criticisms to "originalist positivism." [109] It would be helpful to the cause of argumentative clarity if he would do this more consistently. In the light edits that he did for the book version of the MOJ post in which he made his "essentially positivist" claim, for example, Vermeule left that claim in. As a result, Vermeule was still insisting as of the book's publication that "views that attempt to fuse the common good with originalism ... are intrinsically unstable, because they attempt to combine an essentially positivist approach with the classical approach." [136] 

It is a welcome development that the "essentially positivist" claim no longer appears to be the considered position of Vermeule or Casey. Their claim now is that the stability of any combination on originalism and common good constitutionalism depends on the substantive insignificance of any version of originalism that is compatible with common good constitutionalism. Evaluating that claim depends, of course, on the relative insignificance of posited law in the comparator version of common good constitutionalism.

In any event, Vermeule's and Casey's recognition of the incorrectness of treating generic originalism as "essentially positivist" is why I began by describing Vermeule's and Casey's post as an uncharacteristically pugnacious recommendation of Alicea's paper. They are in heated agreement with Alicea's titular claim about The Moral Authority of Original Meaning. 

March 25, 2022 | Permalink

The reality of the Annunciation, the angel Gabriel, and the injustice of the Ukraine invasion

Today's Feast of the Annunciation is both somber and hopeful. Pope Francis will lead an Act of Consecration of Russia and Ukraine to the Immaculate Heart of Mary. We should accept the invitation he has extended to all the faithful to join him in praying this prayer:

O Mary, Mother of God and our mother, in this time of trial we turn to you. As our mother, you love us and know us: No concern of our hearts is hidden from you. Mother of mercy, how often we have experienced your watchful care and your peaceful presence! You never cease to guide us to Jesus, the prince of peace.

Yet we have strayed from that path of peace. We have forgotten the lesson learned from the tragedies of the last century, the sacrifice of the millions who fell in two world wars. We have disregarded the commitments we made as a community of nations. We have betrayed peoples’ dreams of peace and the hopes of the young. We grew sick with greed, we thought only of our own nations and their interests, we grew indifferent and caught up in our selfish needs and concerns.

We chose to ignore God, to be satisfied with our illusions, to grow arrogant and aggressive, to suppress innocent lives and to stockpile weapons. We stopped being our neighbor’s keepers and stewards of our common home. We have ravaged the garden of the earth with war, and by our sins we have broken the heart of our heavenly Father, who desires us to be brothers and sisters. We grew indifferent to everyone and everything except ourselves. Now with shame we cry out: Forgive us, Lord!

Holy Mother, amid the misery of our sinfulness, amid our struggles and weaknesses, amid the mystery of iniquity that is evil and war, you remind us that God never abandons us, but continues to look upon us with love, ever ready to forgive us and raise us up to new life. He has given you to us and made your Immaculate Heart a refuge for the church and for all humanity. By God’s gracious will, you are ever with us; even in the most troubled moments of our history, you are there to guide us with tender love.

We now turn to you and knock at the door of your heart. We are your beloved children. In every age you make yourself known to us, calling us to conversion. At this dark hour, help us and grant us your comfort. Say to us once more: “Am I not here, I who am your Mother?” You are able to untie the knots of our hearts and of our times. In you we place our trust. We are confident that, especially in moments of trial, you will not be deaf to our supplication and will come to our aid.

That is what you did at Cana in Galilee, when you interceded with Jesus and he worked the first of his signs. To preserve the joy of the wedding feast, you said to him: “They have no wine” (Jn 2:3). Now, O Mother, repeat those words and that prayer, for in our own day we have run out of the wine of hope, joy has fled, fraternity has faded. We have forgotten our humanity and squandered the gift of peace. We opened our hearts to violence and destructiveness. How greatly we need your maternal help!

Therefore, O Mother, hear our prayer.

Star of the Sea, do not let us be shipwrecked in the tempest of war.

Ark of the New Covenant, inspire projects and paths of reconciliation.

Queen of Heaven, restore God’s peace to the world.

Eliminate hatred and the thirst for revenge, and teach us forgiveness.

Free us from war, protect our world from the menace of nuclear weapons.

Queen of the Rosary, make us realize our need to pray and to love.

Queen of the Human Family, show people the path of fraternity.

Queen of Peace, obtain peace for our world.

O Mother, may your sorrowful plea stir our hardened hearts. May the tears you shed for us make this valley parched by our hatred blossom anew. Amid the thunder of weapons, may your prayer turn our thoughts to peace. May your maternal touch soothe those who suffer and flee from the rain of bombs. May your motherly embrace comfort those forced to leave their homes and their native land. May your sorrowful heart move us to compassion and inspire us to open our doors and to care for our brothers and sisters who are injured and cast aside.

Holy Mother of God, as you stood beneath the cross, Jesus, seeing the disciple at your side, said: “Behold your son” (Jn 19:26). In this way, he entrusted each of us to you. To the disciple, and to each of us, he said: “Behold, your Mother” (Jn 19:27). Mother Mary, we now desire to welcome you into our lives and our history.

At this hour, a weary and distraught humanity stands with you beneath the cross, needing to entrust itself to you and, through you, to consecrate itself to Christ. The people of Ukraine and Russia, who venerate you with great love, now turn to you, even as your heart beats with compassion for them and for all those peoples decimated by war, hunger, injustice and poverty.

Therefore, Mother of God and our mother, to your Immaculate Heart we solemnly entrust and consecrate ourselves, the church and all humanity, especially Russia and Ukraine. Accept this act that we carry out with confidence and love. Grant that war may end and peace spread throughout the world. The “fiat” that arose from your heart opened the doors of history to the Prince of Peace. We trust that, through your heart, peace will dawn once more. To you we consecrate the future of the whole human family, the needs and expectations of every people, the anxieties and hopes of the world.

Through your intercession, may God’s mercy be poured out on the earth and the gentle rhythm of peace return to mark our days. Our Lady of the “fiat,” on whom the Holy Spirit descended, restore among us the harmony that comes from God. May you, our “living fountain of hope,” water the dryness of our hearts. In your womb Jesus took flesh; help us to foster the growth of communion. You once trod the streets of our world; lead us now on the paths of peace. Amen.

None of this makes any sense, of course, if the only reality in this world is material reality. But materialism is so ingrained, primarily as a practical rather than speculative stance, because our spiritual senses have been deadened and dulled. Perhaps this Feast of the Annunciation can be an occasion for a renewed commitment to prayer for the grace of enlivened and sharpened spiritual senses.

As a matter of "intellectual engagement," a good place to begin is with the reality of spiritual reality. This is where Frank Sheed begins in Theology for Beginners. He relates an exchange that a Catholic Evidence Guild member had with "a materialist, who asserted the the idea of justice was the result of a purely bodily activity, produced by man's material brain":

Speaker: How many inches long is it?

Questioner: Don't be silly, ideas have no length.

Speaker: O.K. How much does it weigh?

Questioner: What are you doing? Trying to make a fool of me?

Speaker: No. I'm taking you at your word. What color is it? What shape?

[Sheed continues:] The discussion at this point broke down, the materialist saying the Catholic was talking nonsense. It is nonsense, of course, to speak of a thought having length or weight or color or shape. But the materialist had said that thought is material, and the speaker was simply asking what material attributes it had. In fact, it has none, and the materialist knew this perfectly well. Only he had not drawn the obvious conclusion. If we are continuously producing things which have no attribute of matter, it seems reasonable to conclude that there is in us some element which is not matter to produce them. This element we call spirit.

Oddly enough, the materialist thinks of us as superstitious people who believe in a fantasy called spirit, of himself as the plain blunt man who asserts that ideas are produced by a bodily organ, the brain. What he is asserting is that matter produces offspring which have not one single attribute in common with it, and what could be more fantastic than that? We are the plain blunt men, and we should insist on it.

Occasionally a materialist will argue that there are changes in the brain when we think, grooves or electrical discharges or what not. But these only accompany the thought; they are not the thought. When we think of justice, for instance, we are not thinking of the grooves in the brain; most of us are not even aware of them. When I say that mercy is kinder than justice, I am not comparing mercy's grooves with the stricter grooves of justice.

Our ideas are not material. They have no resemblance to our body. Their resemblance is to our spirit. They have no shape, no size, no color, no weight, no space. Neither has spirit, whose offspring they are. But no one can call it nothing, for it produces thought, and thought is the most powerful thing in the world—unless love is, which spirit also produces.

Let us consider this passage in light of today's Act of Consecration. The category of spiritual reality is necessary to make sense of it. Without this category, we would have no adequate way to conceive of the reality of the Annunciation itself, of the angel Gabriel, or of the injustice of the Ukraine invasion. Each of these events, persons, or states of affairs is real. Each only makes sense as real in light of spiritual reality. As an event in the material world, the Annunciation was manifest through the appearance of the angel Gabriel to Mary. But what is an angel? What does it mean for a purely spiritual creature to "appear"? What was announced in the Annunciation? None of this makes any sense, and there is no possibility of salvation through the Incarnation, Life, Death, and Resurrection of Jesus Christ, unless spiritual reality is real reality.

And now we return to this day, March 25, 2022. Spiritual reality grounds the claim that the injustice of Russia's invasion of Ukraine is real injustice. The act of invasion was the act of a real vice, of objectively disordered human will. Again, something important is missing if we think of justice and injustice as simply subjective opinions lacking any basis in reality. Yet if the only reality is material reality, then that's where we are.  

Mary, Queen of Angels, pray for us.

March 25, 2022 in Walsh, Kevin | Permalink

Friday, March 18, 2022

Christian nationalism and the rule of law

I've posted on SSRN my chapter on Christian nationalism from a new book on the January 6 insurrection.  You can read the whole thing here.  The abstract:

Current threats to the rule of law in the United States emerge, at least in part, from a nationalism shaped by a distinctly American vision of Christianity. Defenders of the rule of law must therefore respond in terms that confront the religious dimension of the threat directly. Religiously affiliated law schools should be key contributors to this conversation, modeling a faith-shaped discourse that avoids invoking Christianity as a conversation-stopper, as a signal of self-righteousness, or as a means to stir up hatred of “the other.” How might the public witness of our faith support, rather than impede, the rule of law?

March 18, 2022 in Vischer, Rob | Permalink

Academic Freedom (?) and Catholic character at Dayton

The Academic Freedom Alliance (AFA) recently sent a letter to the President of the University of Dayton -- a "Catholic, Marianist university" -- that criticized the university's recent decision to disinvite Dr. Tlaleng Mofokeng from participating as a keynote speaker in the Social Practice of Human Rights conference on October 28, 2021.  The university administration apparently concluded that Dr. Mofokeng could not speak on campus because her “work as an abortion provider” made her presence on campus a “sharp conflict with the University’s Catholic, Marianist mission and the right to life.”

The AFA -- of which I am a member -- charged that the "disinvitation represents an egregious violation of the principles of academic freedom and an abnegation of the University of Dayton’s own stated commitment to freedom of thought."  The letter also states:

We do not quarrel with the right of religiously affiliated institutions to govern themselves in line
with the precepts of their sponsoring religious bodies, and to pursue their faith-based missions.
We insist, however, that all institutions, including religiously affiliated colleges and universities,
live up to their free speech and other academic freedom commitments, and honor the formal
and informal contracts the institutions have made with their faculty and students.

I have written before about the issue of Catholic universities, honorees, and outside speakers before.  Among other things, I said:

[A] Catholic university can invite someone to speak on campus and thereby facilitate the respectful consideration-and, perhaps, criticism and rejection-of that person's views and positions by the university community without "honoring" that person.' The issue, again, is not what should be said at Catholic universities'-just as it is not for whom may a faithful Catholic vote, or which actions would involve a Catholic university in culpable cooperation with evil-but what should be said by a Catholic university.

That said, I have to confess, it is not obvious to me that the AFA's letter is correct when it charges the University of Dayton not only with violating academic-freedom promises, but also (later in the letter) with violating the very nature of a university.  It is not clear to me that the AAUP's 1940 Statement (which the AFA notes is included in the handbook -- and, so, the contract -- of Dayton faculty) requires that "academic freedom" include an unfettered right on the part of faculty to organize on-campus events with outside speakers, when those speakers are (for whatever reason), in the view of those with fiduciary obligations to care for the university's mission and character, inappropriate.  As I understand the events at Dayton, the university did nothing to interfere with any faculty member's own expression or research. 

Again:  This is not to say that, in my view, a meaningfully Catholic university should always exclude outside speakers who promote (say) abortion-rights.  And, the AFA's point that Catholic universities should honor the promises they make to faculty is, certainly, a strong one.  But I cannot shake the impression that the letter, in both tone and substance, gives short shrift to the Catholic university project, and suggests (incorrectly, in my view) that, to the extent a Catholic university enlists its Catholic character and mission in shaping policy, it is (somehow) departing from the ideal or nature of a university.  And again:  I say a bit more about why this suggestion is incorrect, here

March 18, 2022 in Garnett, Rick | Permalink