Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Tuesday, December 18, 2018

A bad misstep by the Ninth Circuit in a ministerial-exception case

Opinion hereInside Higher Ed commentary here.  The ruling is, put simply, nuts.  (Or, put more gently, "entirely incompatible with Supreme Court precedent.)  The Ninth Circuit acknowledged that:

[The fifth-grade teacher's] contract stated that she would work “within [St. James’s] overriding commitment” to Church “doctrines, laws, and norms” and would “model, teach, and promote behavior in conformity to the teaching of the Roman Catholic Church.” St. James’s mission statement provides that the school “work[s] to facilitate the development of confident, competent, and caring Catholic-Christian citizens prepared to be responsible members of their church[,] local[,] and global communities.” According to the school’s faculty handbook, teachers at St. James “participate in the Church’s mission” of providing “quality Catholic education to . . . students, educating them in academic areas and in . . . Catholic faith and values.” The faculty handbook further instructs teachers to follow not only archdiocesan curricular guidelines but also California’s public-school curricular requirements.

It is very difficult to see this ruling as anything other than an effort to ignore Hosanna-Tabor.  It's hard to be too confident that this mistake will be corrected en banc (given the Circuit), but it should be.  A fifth-grade teacher at a parochial school is a "minister", within the meaning of that decision.

December 18, 2018 in Garnett, Rick | Permalink

Monday, December 17, 2018

"The End of a Walking Dead Doctrine?"

Here is my contribution to a symposium sponsored by the good folks at SCOTUSblog on the upcoming memorial-cross case.  Here are the opening grafs:

About four and a half years ago, here at SCOTUSblogcommenting on the Supreme Court’s then-recent decision in Town of Greece v. Galloway, I noted that it had been a while since the justices “had shared with us their intuitions, impressions, aruspicies, and auguries – that is, what Justice Breyer calls their ‘legal judgment’ – in a clean-and-straightforward Establishment Clause case involving ‘religion in the public square.’” Well, they have been asked to do it again.

One of the questions presented in The American Legion v. American Humanist Association is “whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross.” That the question is posed this way says a lot, but not much that is complimentary or edifying, about the state of First Amendment doctrine. After all, and obviously, the monument at issue in Bladensburg, Maryland’s Veterans Memorial Park does not just happen to be “shaped like” a cross any more than the name of California’s largest city just happens to “sound like” one of the titles of the Blessed Virgin Mary. It is, in fact, a cross – a 40-feet-tall Latin cross that, for nearly a century, has recalled and honored 49 local soldiers who, as its original donors put it, “have not died in vain.” The memorial is constitutional not because its troubling resemblance may be excused but because – the lower court’s speculations about the semiotics of shrubbery-placement notwithstanding – it is not an “establishment of religion.” A judicial doctrine, precedent or “test” that says otherwise is, for that reason, unsound. . . . 

Comments and criticism welcome!

December 17, 2018 in Garnett, Rick | Permalink | Comments (0)

Monday, December 3, 2018

Perry Dane on Corporations

MOJ readers know that I'm interested in the role and rights of religious institutions. (See, e.g., this and this.)  I also think that Prof. Perry Dane (Rutgers) is one of the most interesting law-and-religion scholars working.  So, I suppose it's a bit "overdetermined", as they say, that I'm recommending this paper of his:

This essay on Corporations is a chapter in an upcoming volume on economic theology edited by Stefan Schwarzkopf.

The secular study of corporations has long regularly focused on three sets of concerns: (1) Is the idea of corporate “personhood” only a convenient shorthand for a complex set of relationships among human beings or are corporations in some important sense “real entities” with rights, duties, interests, or even intentions of their own? (2) How do the various aspects of corporate personhood differ from the qualities of human personhood? (3) What are the proper purposes or missions of for-profit and not-for-profit corporations?

This essay examines these perennial questions through a distinctive theological lens. It considers, among other topics, doctrines in Jewish and Islamic law about the religious meaning of secular corporations, debates about the spiritual worth and moral responsibilities of for-profit corporations, and ideas in several faith traditions about the ontological status of religious communities.

The essay also discusses the role of the fraught idea of “idolatry” in conversations about corporations. And it ends by looking to Buddhist philosophy, contemporary neurological research, and secular theories of public choice and group decision-making to question the reigning assumption that there is a fundamental difference between “natural persons” such as human beings and “artificial persons” such as corporations.

December 3, 2018 in Garnett, Rick | Permalink

Sofia Carozza on Advent, neuroscience, and "Locke's Lonely Liberalism"

Sofia Carozza, a neuroscience-and-theology major at Notre Dame, has this very interesting reflection in the Church Life Journal on Advent, neuroscience, and "Locke's Lonely Liberalism."  Just a bit:

. . . Neuroscience alone shows us that our development and flourishing takes place through relationships of love. But in providing a corrective to Locke, developmental neuroscience is well supplemented by a Thomistic account of the human person. Such an account is particularly helpful when the development of the virtues is understood through the interpretive key of “second-person relatedness.”[9] This Thomistic concept, as argued by Andrew Pinset, is the idea that the “I” is formed in dialogue with the “you,” in an irreducible dialectical relationship. Second-person relatedness begins between the child and her parents, a relationship in which she starts to develop the human virtues and gain agency as a moral individual. However, Pinset argues that second-person relatedness is a continuum of relationship that extends even to the child’s connection with God. Through this divine I-Thou relationship, she experiences friendship with God and is thus bestowed the theological virtues.

This account of the human person accords well with neuroscience research. . . .

December 3, 2018 in Garnett, Rick | Permalink

Saturday, December 1, 2018

Feast of Edmund Campion and the English martyrs

Several years ago, our own Fr. Robert Araujo, S.J. (RIP) posted this, about Campion and other English martyrs:

Today, the first of December, is a special day in the liturgical calendar of the Society of Jesus—the religious institute to which I belong. It is the feast of the martyrs Saints Edmund Campion, Robert Southwell, and companions. Of course the English and Welsh Church offered up a good number of members of other institutes, the secular priesthood, and the laity who would not compromise on their Catholic faith but, by the same token, did not betray their loyalty as subjects of the temporal realm. In spite of what the temporal powers demanded of them, they simultaneously remained true to the faith and their sovereign.

It could have been Campion and Southwell and their companions that Cardinal George had in mind when he recently figuratively (and, perhaps, literally) stated that he would likely die in his bed; his successor in prison; and the latter’s successor a martyr for doing what Saint Paul in the letter to Titus reminds all Christians to be their duty: to encourage others in sound doctrine and to refute those who oppose it. [Campion and some of his companions were teachers, and they understood the value of authentic academic freedom to search for and present in public fashion the truth of God.] While such talk may be dismissed as hyperbole in the present age, is it?

We do not have to look far today to see that there are still martyrs, usually folk from ordinary walks of life, who are dying for the Catholic faith and for no other reason. This has been the history of the Church since its beginning; the tradition continues because people like Campion and his fellow martyred Jesuits understood well that they joined the enterprise of the Society of Jesus for one purpose alone: to strive especially for the defense and propagation of the faith and the progress of souls in Christian life and doctrine.

This is evident from reading Campion’s apologia which Father Campion submitted to Queen Elizabeth I’s Privy Council after his capture and before his execution. [The apologia (oft referred to as “Campion’s Brag”) is HERE] His words do not betray any disloyalty to his sovereign, but they confirm the sincerity and profundity of his faith in Christ and His holy Church. The so-called Brag is worth studying carefully, but these words stand out for me and, perhaps, others:

…The expense is reckoned, the enterprise is begun; it is of God, it cannot be withstood. So the faith was planted: so it must be restored…

Saints Edmund Campion, Robert Southwell, and companions: pray for us!

Don't miss the chance today to (re)read "Campion's Brag"!

December 1, 2018 in Garnett, Rick | 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, 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

"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