Mirror of Justice

Fulton v. City of Philadelphia: the rule of law persists in an age of political tribalism

As the world waited for the Supreme Court’s ruling in Fulton v. City of Philadelphia, the stage was set for another headline-grabbing battle in our never-ending culture wars: the religious liberty of a Catholic foster care agency versus a municipal government committed to ending discrimination against same-sex couples. This morning, as advocates on both sides were ready to crank up the outrage-fueled fundraising machines, the Court issued its ruling in favor of the Catholic agency. And remarkably, it was unanimous, demonstrating once again that the rule of law does not stick to our increasingly polarized political scripts. Throughout this era of tumult and tribalism, our judiciary reminds us that the law is not just a set of political preferences dressed up with fancy words. Principles and precedent continue to matter.

 

So how did this case end up as a unanimous ruling? The dispute arose from Philadelphia’s decision not to renew its contract with Catholic Social Services (CSS) to place children with foster parents unless CSS agreed to include same-sex couples. The City argued that the refusal to include same-sex couples violated a non-discrimination provision in the agency’s contract with the City, as well as the non-discrimination requirements of a city ordinance.

In an opinion joined by all eight of his colleagues, Chief Justice Roberts observed that CSS “does not object to certifying gay or lesbian individuals as single foster parents or to placing gay and lesbian children,” and “[n]o same-sex couple has ever sought certification from CSS.” If a same-sex couple did seek to be certified, “CSS would direct the couple to one of more than 20 other agencies in the City, all of which currently certify same-sex couples.” (In other words, there is no shortage of opportunities in Philadelphia for same-sex couples to serve as foster parents.)

 

The Court held that the City’s refusal to renew CSS’s foster care contract violated the First Amendment’s Free Exercise Clause, recognizing at the outset that “the City’s actions have burdened CSS’s religious exercise by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs.”

 

That wasn’t the end of the analysis, though, because of a 1990 Supreme Court ruling that loomed over this case: Employment Division v. Smith. In Smith, the Court held that neutral and generally applicable laws do not violate the Free Exercise Clause even if they negatively impact religious practices. In Fulton, the City argued that its prohibition on sexual orientation discrimination was both neutral and generally applicable, and as such, CSS’s Free Exercise claim must fail.

 

The Court disagreed because the City’s non-discrimination requirement permitted a party to seek an exemption, and “A law is not generally applicable if it invites the government to consider the particular reasons for a person’s conduct by providing a mechanism for individualized exemptions.”

 

Once a law that burdens religious exercise is deemed not generally applicable, it falls outside the scope of Smith and is thus subject to strict scrutiny. This means that the law can only survive if it advances government interests of the highest order and is narrowly tailored to achieve those interests. Put more simply, “so long as the government can achieve its interests in a manner that does not burden religion, it must do so.”

 

The Court acknowledged that important interests are at stake in the non-discrimination requirement, but found that the City failed to show how granting CSS an exemption would jeopardize those interests: “If anything, including CSS in the program seems likely to increase, not reduce, the number of available foster parents.”

 

So every Justice agreed that CSS should prevail. But three Justices – Alito, Thomas, and Gorsuch – were ready to go further and overturn Smith, pointing out in a concurring opinion that the rule permitting “neutral and generally applicable” laws to withstand constitutional scrutiny, no matter their impact on religious exercise, is deeply problematic. For example, under Smith, the Volstead Act implementing Prohibition would have been constitutional even if it contained no exception for the sacramental wine necessary for Catholic masses. Or a ban on infant circumcision would be permissible, even if it applied to prohibit important Jewish and Muslim practices.

 

Because the Court avoided Smith by focusing on the possibility of an exemption in Philadelphia’s non-discrimination requirement, the concurrence warned that today’s decision “might as well be written on the dissolving papers sold in magic shops” because, “if the City wants to get around today’s decision, it can simply eliminate the never-used exemption power.”

 

So even in a unanimous ruling, important disagreements lurk. But even those disagreements don’t align easily with our political tribalism. The author of Smith against whom conservative stalwarts Alito, Thomas, and Gorsuch were railing? Conservative judicial hero Antonin Scalia. The rule of law does not lend itself to simplistic predictions based on which President appointed which judge. (In today’s other noteworthy ruling, Trump appointees Barrett and Kavanaugh joined five of their colleagues in upholding Obamacare against a challenge brought by Republican-led states.)

 

The sorting that has occurred between American conservatives and liberals maintains an ideological core, but it has morphed into something broader and deeper than ideology. In his book "Why We’re Polarized," Ezra Klein points out that the two major political parties today “are sharply split across racial, religious, geographic, cultural, and psychological lines,” and that these identities “are fusing together, stacking atop one another.” Further, since “these mega-identities stretch across so many aspects of our society, they are constantly being activated, and that means they are constantly being reinforced.” In other words, a conflict between religious liberty and LGBT rights aligns with the more fundamental conflict between our stacked social identities. We don’t need to choose a side; we already know which side we’re on based on where we live, what cable news we watch, what car or truck we drive, where (and if) we go to church, even where we shop.

 

The rule of law reminds us that it should not and need not be that simple. I’m confident that Justice Sotomayor and Justice Thomas, for example, do not run in the same political circles or derive their identities or sense of belonging from the same sources. And yet they can step back from the noise, examine the facts of a situation, apply sound principles not of their own creation, and agree on an outcome. Not every case will be unanimous, and a 5-4 ruling may emerge later this month. But members of the Supreme Court have not given up hope that they can still reason together to resolve deeply contested issues. And if they can do that under the white-hot national spotlight, so can the rest of us.

Why the Liberal Arts Matter to Catholic Legal Education

Why bother with the liberal arts? Because the liberal arts are core to our mission as a Catholic university.  If we had to distill it to a very simple message, the liberal arts show that faith and reason have nothing to fear from each other.  But it’s deeper than that.

Pope Francis has explained that Catholic universities must help students face the questions of “why,” by linking knowledge with purpose.  Facing the questions of “why” implicates the “epistemological character of education which concerns the whole span of knowledge,” and “[t]he link between knowledge and purpose refers to the theme of intentionality and to the role of the subject in every cognitive process.” In other words, “Completely impersonal experiences do not exist.”

Let’s unpack that for a minute.

The role of the subject in every cognitive process.  So for a law school, one might be tempted to argue that a liberal arts approach is irrelevant – just teach me what I need to pass the bar exam and get a job as a lawyer: legal doctrine and technical skills, period.  One must resist this temptation because, if we want to educate for professional excellence, we have to help form the person, not just teach a trade.

And we have to help each student understand their own agency in who they are becoming as a professional.  They are not just passive vessels to receive information about Torts or Civil Procedure.  They have to be able to step outside their heads so that they can see themselves as an agent in the world, growing over time, pursuing alignment between their own gifts and values and the world’s needs.  Even a professional school is forming students for a dynamic lifelong journey.

So how does a law student get outside their own heads enough to critically evaluate and prepare for their own agency?  Well, it’s not by memorizing law.  It could be, for example, by seeing the relevance of other fields of knowledge to their own agency in legal practice.  So maybe it’s contextualizing their work in family law with an understanding of sociology, maybe it’s seeing how court rulings on religious liberty interact with the theological beliefs of those affected, maybe it’s recognizing the self-serving logic employed by those who wield power in our legal system by applying the insights of philosophy to uncover the incoherence of their justifications.  But more important than any of those more particular examples, I think it requires being drawn out into other narratives that open up new ways of thinking about their lives, not just their professional identities.

For example, I’ve assigned my students Tolstoy’s The Death of Ivan Ilych, not because they need to know about the 19^th century Russian legal system, but because it is very helpful for them to lie next to Ivan Ilych on his death bed and reflect back on a life of devotion to the wrong things.  To lament time wasted on being impressive, on chasing prestige and status. 

Tolstoy can get my students out of their own heads long enough to think deeply about the life to which they aspire.  That’s good for them, and it’s also good for our world.   

C.S. Lewis wrote that:

[W]e need intimate knowledge of the past. Not that the past has any magic about it, but because we cannot study the future, and yet need something to set against the present, to remind us that the basic assumptions have been quite different in different periods and that much which seems certain to the uneducated is merely temporary fashion. . . .  the scholar has lived in many times and is therefore in some degree immune from the great cataract of nonsense that pours from the press and the microphone of his own age.

I’d expand Lewis’s point.  A knowledge of history can help us discern and discount the nonsense of our current age, and a knowledge of other disciplines can help students discern and discount the overreading of insights from any one particular discipline – or maybe put more gently, can help them contextualize what a single discipline has to teach us about ourselves and the world.

Here’s an example of why this matters.  The first case our new law students read every year is Buck v. Bell, a 1927 case in which the U.S. Supreme Court upheld a state law permitting the forced sterilization of women deemed mentally incompetent. Oliver Wendell Holmes wrote an opinion on behalf of the Court expressing concern that the offspring of the mentally incompetent would likely become criminals and would drain resources from society.  He concluded that “three generations of imbeciles are enough.”

A brand-new law student can bring to bear insights from the fields of history, economics, biology, philosophy, and theology to show why Justice Holmes was wrong as both an empirical and a normative matter.  So on the first day of classes at our law school, the most important discussion students have about the law is actually about the liberal arts.  It’s why forming the lawyer entails forming the person.  And it’s a journey of formation that is foundational to Catholic law schools. 

Bearing witness to the pain

Every year at orientation, when we’re explaining to our new law students the importance of disclosing their past arrests and citations, I share the story of when I was arrested for trespassing as a senior in high school. A friend and I had entered an abandoned factory to investigate a story we were working on for the school newspaper. It’s sort of a funny story, and I tell it so students know it is possible to overcome past infractions they are concerned about as they start law school.

There’s another story I don’t share.

A couple of months before my trespassing arrest, my friends and I stopped at a liquor store to buy beer with our fake IDs. As I walked in, a teenager I didn’t know approached me in the parking lot and asked if I would buy alcohol for him too. I agreed, and when I came back out and was handing him what he asked for, a uniformed officer who had been watching the whole time walked up and told us to “stop right there.” I turned and ran to my car, got in, and drove as fast as possible out of the parking lot. The officer had taken down my license plate, so I was picked up later that evening, booked, released, and eventually fined after a court appearance.

There was no question that I had committed a crime – the officer saw me hand liquor to someone who was obviously underage. There was no question that I had failed to comply with the officer’s order – I ran from him after he told me to stop. And still, I was given the chance to sleep in my own bed that night, to grow up and get my head on straight, to go to college and law school, to be certified as having the requisite character and fitness to practice law, to teach hundreds of aspiring attorneys, to marry and have kids, to watch my daughters grow up – in other words, to lead a full life that has been shaped but not defined by my many mistakes.

I share this story now because it is too easy for many of us to disconnect from the pain that surrounds us. Many white Americans – including me – like to build our life narratives in terms that have nothing to do with race. Whether or not you’ve had interactions with law enforcement, race has shaped intergenerational wealth, geographic mobility, access to education, job opportunities, the likelihood of building home equity, exposure to race-based trauma, and myriad other realities of American life. We may not agree on the labels we should attach to the role that race has played in our lives, and we may not agree on the most prudent path forward. But if you live in America – and especially if your parents and grandparents lived in America – race has been part of our stories, whether we’re ready to acknowledge it or not.

This past week has been a difficult one in the Twin Cities. The coming week may be much, much more difficult. As Christians, we are called to bear witness to the pain, even if we do not feel it as deeply or as personally as others do. I encourage us to redouble our commitment to the empathy that is made possible by truthful stories about ourselves and the world. Empathy is essential right now because it is a fertile ground for love, and love, in the words of Martin Luther King Jr., “is the only cement that can hold this broken community together.” We are therefore “commanded to love . . . to restore community, to resist injustice, and to meet the needs of my brothers.”

Catholic legal education in an age of political tribalism

As we continue to make progress toward a post-pandemic future, we need to recognize that COVID is not the only force that has driven us apart from one another.  We are hopeful that social distancing requirements will be relaxed in the coming months, but we’d be naïve to believe that physical proximity will be sufficient to bring us all back together. 

I was reminded of that reality this morning by a Star-Tribune article about the bar owner in Albert Lea, Minnesota who defied the governor’s pandemic restrictions and is now on the run.  What was most striking in the coverage were the diametrically opposed opinions of Albert Lea residents: some praised her for bravely resisting government overreach, and some condemned her for prioritizing herself over her community’s health. 

So how should we train our graduates to be effective lawyers for the bar owner in Albert Lea?  She has, I presume, a deep-seated opposition to wearing masks as a response to the COVID pandemic, as may virtually all of her customers, business associates, family members, and friends.  When she asks our graduate for advice regarding compliance, how should our graduate respond?  With a categorial “you must comply,” or should she also opine on the chances of an enforcement action, the potential penalties, or the legality of encouraging customers to invoke disability exemptions from mask-wearing?  Does our graduate’s own view of masks’ efficacy as a virus safeguard matter to her advice? Does our graduate’s belief that her client is misunderstanding the purpose and intent of the mask mandate matter to her advice? What if she believes that the misunderstanding is shared widely by all of the groups whose views matter to her client? And how can she ensure that she is navigating these tensions with client-centered humility without undermining the rule of law?  Put simply, how should relationships matter to a lawyer’s work in our deeply divided nation?

This is not just about COVID, of course.  Our responses to pandemic restrictions are part of a broader set of beliefs that together comprise the social identities that are driving the grand sorting of our nation into increasingly distant and hostile camps.  Our perception of the debates surrounding the Derek Chauvin trial, the influx of undocumented immigrants in Texas, Georgia’s new election laws, climate change, the prioritization of religious liberty, and a wide variety of pressing policy issues are shaped by the lenses we bring.  Increasingly, Americans’ lenses are based on the camp with which they identify, rather than on their own assessment of the particular issue’s merits. 

This is one reason why I believe that legal education is absolutely essential to our nation’s future.  Law schools teach suspension of judgment, critical thinking, the cultivation of trust, precision with language, detached empathy, and the courage to represent unpopular clients and causes – these are all important habits for a divided nation.  And Catholic law schools should bring a long-overlooked dimension to the conversation: a willingness to go deeper, to discuss moral claims and the relationships that give rise to them.  If lawyers are not attentive to this dimension, we will be of limited help bridging a divide that is not primarily about legal interpretation or technique, and is not simply a product of opposing moral claims—it’s a product of cultures that shape and sustain opposing moral claims. Lawyers need to learn how to build trust across cultural boundaries.

We should think carefully about how we respond to the pressure points that our nation’s division will produce in the coming days.  We should never use division as an excuse to weaken our moral commitments, to withdraw from political engagement, or to slide toward an apathy-driven acceptance of the status quo.  However, we should be clear that the mission of Catholic legal education is not ultimately a call to win the battle for one warring camp or the other – it’s a call to help restore the relationships that have been broken.

Thinking clearly about "cancel culture"

I continue to be concerned by our growing tendency to weaponize shorthand expressions for complicated ideas in ways that shed more heat than light. “Cancel culture” is in the news everywhere one turns, and it is being deployed in ways that are both too broad and too narrow: too broad to the extent the term is applied whenever someone experiences consequences for their actions (even self-imposed consequences, as the brouhaha over Seuss Enterprises' decision to stop publishing six of the author's books reflects); too narrow to the extent that the term tends to be applied to the opposing political tribe, not our own. Before reflexively shouting “cancel culture,” let’s ask ourselves three questions:

 

First, what consequences have been imposed against the person deemed problematic? Has a social media post been criticized by others who find it offensive? That’s criticism, not cancellation. Has a person been disinvited from speaking at a conference or representing an organization based on something they have written or said? That may simply be enforcement of the boundaries surrounding an organization’s identity and values, not cancellation. (And yes, it’s problematic for a newspaper to stake out an identity that precludes the expression of controversial ideas.) Has a company been subjected to calls for a grass-roots boycott by those who find their practices or products offensive? That’s accountability in the marketplace of ideas, not cancellation. Has a company or person been effectively precluded from participating in the marketplace by those who control access to the marketplace? Now we’re getting close to cancellation, but we have to answer another question . . . .

 

Second, who is imposing the consequences? One genius of American pluralism is that people can live out their beliefs by joining together with others to support a particular way of life or moral perspective. Usually this happens through voluntary associations (churches, clubs, charities). But this can also happen through for-profit companies. If the mom-and-pop pharmacy down the street believes that the morning-after pill acts as an abortifacient and so declines to carry it, customers may choose them because of that stance, or customers may avoid doing business there because of that stance. No one would accuse the pharmacy of “cancelling” the big pharmaceutical company that makes the drug. As long as there is a functioning marketplace with viable options, we should applaud the diversity of moral claims reflected in our various associations.

 

But what if Amazon decides to stop selling a controversial book? Amazon – like other Big Tech companies – doesn’t just participate in the market; in a real sense, they function as gatekeepers to the market. When those gatekeepers act to remove certain people or ideas from circulation, we should be concerned. (That doesn’t mean it should never happen – e.g., I don’t think Amazon should sell a do-it-yourself kit for building a dirty bomb at home.) In my view, the power of Big Tech is what makes today’s “cancel culture” debates relevant. Many of the debates today are not really new at all, which leads to the last question . . . .

 

Third, am I tempted to describe as “cancel culture” something that has been happening for many years? Many debates about cancel culture today involve the use of racial, ethnic, or homophobic terms – the N-word most prominently. What’s changed, though, is the words that bring consequences, not our willingness to impose consequences for someone’s choice of words. There was a longstanding list of words that served as red lines not to be crossed (as George Carlin memorably explained), the F-word chief among them. In past eras, you could’ve lost your job, your reputation, and your social standing by uttering obscenities. In a way, we’ve traded the N-word for the F-word as the line not to be crossed, and I think that’s a healthy trade given each word’s history. The notion that words (or images) bring social consequences is not new.

 

Our social norms are changing. Maybe you disagree with those changes – if so, I suggest focusing your arguments on the substance of those changes and why you believe they are detrimental to society. Or maybe you think people shouldn’t experience consequences for the ideas they express – if so, I think your position would actually weaken the rough-and-tumble marketplace of ideas in our country, and that would be a shame. Or maybe you fear that certain arguments or beliefs are being removed from the marketplace, not through the free exchange of ideas, but through the top-down imposition of contested moral norms. If so, I share your concern, but the answer is not to issue blanket condemnation of the “cancel culture” bogeyman – it’s to take on an even more complicated topic: what should we do about Big Tech? (And no, I don’t know the answer to that one.)

"Deeply rooted in white supremacy"

How should we argue about deeply contested issues? This morning our local newspaper published an op-ed repeating an argument I’ve seen several times in recent weeks: warning that the pro-life movement is “deeply rooted in white supremacy.” That would come as a surprise to Clement of Alexandria (who expressed Christian opposition to abortion more than 1500 years before the United States even existed), to Mother Teresa (who criticized political leaders for their permissive abortion policies and their treatment of the poor), to Cardinal Wilton Gregory (America’s first Black Cardinal who has long advocated against both white supremacy and abortion), to Planned Parenthood founder Margaret Sanger (acknowledged recently by the organization as contributing a “racist legacy” through her eugenics ideology), and to millions of Black Americans today who oppose legal abortion at about the same rate as other Americans. To dismiss today’s anti-abortion advocacy as “rooted in white supremacy” disregards history and inflames an already difficult issue.

 

The point I want to make is not about abortion, it’s about how we argue. The effort to label anti-abortion advocates as white supremacists follows efforts to label proponents of single-payer health care as communists. Are there white supremacists who oppose legal abortion? Sure. Are there communists who support single-payer health care? Sure. But there is nothing intrinsic to single-payer health care or anti-abortion advocacy that compels an embrace of communism or white supremacy, and to suggest so is to adopt an approach to political debate designed to shed considerably more heat than light.

 

These are not isolated examples. Increasingly, our political disagreements on particular issues are being absorbed into a broader war between two vast tribal identities. Those who disagree with us on abortion don’t just disagree with us on abortion (or health care or immigration or police reform); they are “the other” – enemies in a winner-take-all battle of good versus evil. If they’re not actually white supremacists (or communists), they might as well be. There is no point in searching for common ground because they are evil, all the way down. Whatever we fear or hate most in the world gets attached to whoever stands in the way of our political objectives.

 

I think this approach to argument is actually a cop-out, a lazy excuse to avoid the hard work of engagement. If I can dismiss those who disagree with me as white supremacists or communists, I don’t have to listen to their arguments, much less offer a substantive response. This is no way to conduct a democracy.

 

There are strong arguments on both sides of the abortion debate, and we should engage them. There are strong arguments on both sides of the health care debate, on the immigration debate, on the police reform debate, and on many other vexing public policy challenges. That’s why they are difficult issues. Simplistic narratives and name-calling don’t make these issues any less difficult, just more toxic. We can do better.

We're All In This Together

OK, let’s talk about Ted Cruz’s trip to Cancun, not because it’s an easy target for social media outrage, but because I think it offers helpful insight into why we have become so frustrated with our political leaders. I fully understand a father’s desire to give his daughters a vacation in the midst of a challenging year, and I agree that Senator Cruz could have worked from Mexico via phone and Zoom. The vacation wasn’t a failure of logistics, and it wasn’t just a case of bad optics – it was a disregard of a core element of leadership: affirming through word and deed that, no matter the challenge, we are all in this together. Living out this affirmation as a leader has several dimensions:

 

First, leaders must be willing to share in the risk. If you are leading an organization that requires some employees to be on site during COVID, and you are working remotely from the safety of your home office, that sends a strong message to your employees who are on site. If your state is suffering through widespread power outages during frigid weather, and you remove yourself from those risks for sunnier climes, you’re not leading effectively. Ted Cruz needed to tell his daughters that the vacation would have to wait until the crisis was over.

 

Second, leaders must be willing to share in the sacrifice. Knowing that sacrifice is shared is a remarkably powerful motivator and encouragement for a community in crisis. When a leader doesn’t share in the sacrifice, there is no faster path to cynicism. When California Governor Gavin Newsom was photographed at a fancy dinner party, and it appeared that his group was not following the COVID protocols imposed on everyone else, that was a crushing blow to his ability to lead his state through the pandemic.

 

Third, leaders must be subject to the same accountability. When members of the public screw up, they usually have to make amends. Especially when they have influence over the tools of accountability, leaders have to make sure that they are transparent about their mistakes. When New York Governor Andrew Cuomo made misjudgments about placing people suffering from COVID in long-term care facilities early in the pandemic, that was bad, but given what little we knew about the disease at the time, it was arguably an understandable mistake. Working to conceal that mistake in the months since – for a leader – is inexcusable.

 

Fourth, leaders must show that we possess the same dignity. Leaders will invariably disagree about ideas with those whom they are called to lead. Disagreement should be open, direct, and respectful. Disagreement never justifies leaders characterizing those they are called to lead in ways that are demeaning or characterize a person as “the other.” That is why Hilary Clinton’s “deplorables” comment was so inappropriate, and it’s why so many of President Trump’s comments were inappropriate.

 

Looking for a good counter-example? While she was far from the most memorable leader in Chicago's colorful history, something Mayor Jane Byrne did has stuck with me ever since I learned about it as a kid. She moved into the Cabrini Green housing project. Like other mayors before her, she pledged to improve public safety, but then she backed it up by actually living in a spot that was perceived as being among the most dangerous in the city. That’s a powerful example of how to say, “we’re all in this together,” and leave no uncertainty that you mean it.

 

The tendency to extend preferential treatment to ourselves over others is not a partisan problem - it's a human problem. It's one I struggle with as well, and when it's left unacknowledged and unaddressed, it's an obstacle to effective leadership.

Ash Wednesday

Today we observe Ash Wednesday, which marks the beginning of Lent, the time in the Christian calendar that commemorates the 40 days Jesus spent being tempted by Satan in the desert. The ashes sprinkled on our foreheads remind us that we are mortal: we are dust, and to dust we shall return. As Pope Francis explained last year, though, “we are dust loved by God,” and the ashes are:

 

a reminder of the direction of our existence: a passage from dust to life. We are dust, earth, clay, but if we allow ourselves to be shaped by the hands of God, we become something wondrous. More often than not, though, especially at times of difficulty and loneliness, we only see our dust! But the Lord encourages us: in his eyes, our littleness is of infinite value. So let us take heart: we were born to be loved; we were born to be children of God. [Lent is thus] a time of grace, a time for letting God gaze upon us with love and in this way change our lives. We were put in this world to go from ashes to life. So let us not turn our hopes and God’s dream for us into powder and ashes. . . . Ashes are sprinkled on our heads so that the fire of love can be kindled in our hearts. . . . Our earthly possessions will prove useless, dust that scatters, but the love we share – in our families, at work, in the Church and in the world – will save us, for it will endure forever.

This year, it may seem like the last thing we need is a reminder of our mortality. Life’s fragility has probably not been far from any of our thoughts since the pandemic upended our world one year ago. The temptation to feign blissful ignorance of our mortality may sound pretty refreshing right about now. And it’s a temptation that may be within sight as vaccines roll out and something closer to "normalcy" looms over the horizon.

 

But, as Ash Wednesday reminds us, disregard of our mortality is not so blissful, and it is not without cost. As vaccinations become more widespread, I hope I don’t trade anxiety about my at-risk loved ones for complacency about each day’s significance. Pre-pandemic, I was adept at distracting myself from big questions with a never-ending blur of activities. While Ash Wednesday is not intended as an impetus to wallow in the stark fact of life’s brevity, it is an invitation to reflect: in light of my mortality, how shall I then live?

 

We do not achieve significance through impressive accomplishments; we honor our significance by living as though we truly believe that the “littleness” of each person we encounter is “of infinite value.” As we enter Lent, what would it look like for “the fire of love” to “be kindled in our hearts?” And what is the “something wondrous” we were called – indeed created – to become?

What is Christian nationalism, and what is it not?

(This is an op-ed published by Religion News Service.)

One unfortunate aspect of the American culture war is the tendency to weaponize words in ways that stretch them beyond any semblance of their original meanings. Terms such as “woke,” “PC” and “cancel culture” are now deployed to signal that something is bad without shedding meaningful light on the reasons why it’s bad. 

The latest term to meet this fate may be “Christian nationalism.” Since the attack on the U.S. Capitol, it’s showing signs of becoming an all-purpose condemnation of any effort to integrate Christian beliefs with civic engagement, even perfectly peaceful ones.

So what is Christian nationalism, and what is it not?

Paul Miller, a Georgetown University professor and author of a forthcoming book on Christian nationalism, explains that Christian nationalism is a political ideology that holds that “the American nation is defined by Christianity and that the government should take steps to keep it that way to sustain and maintain our Christian heritage.”

If America was founded for a unique purpose by God, then the Constitution was divinely inspired, and displaying the American flag in church sanctuaries is not a blurring of American and Christian identity but a natural marker of faith. In the rhetoric of Christian nationalism,  power is emphasized over principle.

Why is Christian nationalism so dangerous?

Put simply, when we merge our religious identity with our political identity, we will do anything to ensure that our political tribe prevails. We are no longer debating ideas about which reasonable people can disagree; we are defending Christianity against its enemies.

It’s why Eric Metaxas said, in reference to his claims of a stolen election, that it’s “God’s will” for America to keep spreading liberty around the world, and so, “Who cares what I can prove in the court?” Regardless of what the courts say about election fraud, “we need to fight to the death, to the last drop of blood because it’s worth it.”

When a particular political outcome becomes a tenet of my Christian faith, there’s nothing left to argue about. And when there’s nothing left to argue about, that’s a very dangerous place for democracy to find itself.

So there you have the broad outlines of what Christian nationalism is. What is it not?

Christian nationalism is not Christian patriotism. Love of country is a healthy aspect of being human, a reflection that the particularity of place matters to our identity and values. Patriotism becomes unhealthy when we reimagine our national identity as an expression of divine will, elevating our nation above others on some sort of God-ordained hierarchy.

Christian nationalism is not Christian political engagement. We are not a “Christian nation” in the sense that Christian nationalists mean. We are a nation in which our political discourse has long been shaped by Christian values, on both the left and the right. The civil rights movement was infused with Christian images and principles. The progressive push for immigration reform prominently features Christ’s admonition about welcoming the stranger.

Christian ideas should only be an entry point to a broader conversation with Americans of any (or no) faith tradition, not as a sledgehammer to stop their contribution to the debate. On the issue that’s been the most contentious over the past half-century, abortion, the most effective pro-life voices have been steeped in Christian principles. But the core of their arguments has been grounded in observations about fetal development and articulations of life’s value in terms that are accessible beyond Christianity.

On both sides of the political spectrum, the most effective advocates convey the public relevance of Christian values in terms that are wide open to rational disagreement.

The dangers of Christian nationalism are real, but let’s not let tribal posturing confuse those dangers in ways that marginalize the values-based arguments that have been — and hopefully will continue to be — central to American democracy. 

What does CST have to say about America's collapsing social trust?

What does Catholic social teaching have to say about America’s collapsing levels of social trust, which underlie the rise of conspiracy theories, the rejection of expertise, and the hollowing out of the political center? Put differently, if we read David Brooks’ recent essay on our nation’s moral convulsion through the lens of CST, what insights might we gain?  (Last year, [non-Catholic] Brooks called CST “the most coherent philosophy that opposes a philosophy of rampant individualism,” but I don’t think he’s addressed this topic at any length.)  We often invoke elements of CST in debates about particular policy issues, but what light might CST shed on a prudent path forward through this cultural moment?

Two questions might be helpful conversation-starters. First, while solidarity compels us to care about and for others, what does it tell us about the primacy of trusting -- and of being trustworthy -- as a necessary condition of such care? As we know, solidarity “is not a feeling of vague compassion or shallow distress” at others’ misfortunes, but rather “a firm and persevering determination to commit oneself to the common good; that is to say to the good of all and of each individual, because we are all really responsible for all.” (Sollicitudo rei socialis ¶ 38) What is needed is “a commitment to the good of one’s neighbor with the readiness, in the gospel sense, to ‘lose oneself’ for the sake of the other instead of exploiting him, and to ‘serve him’ instead of oppressing him for one’s advantage.” (Id.) The freedom made possible by solidarity is not “achieved in total self-sufficiency and an absence of relationships,” but only “where reciprocal bonds, governed by truth and justice, link people to one another.” (CDF, Instruction on Christian Freedom and Liberation ¶ 26)  The freedom made possible by solidarity “can be articulated only as a claim of truth.” (Id.)  Do we need to talk more about solidarity and social trust?

Second, does subsidiarity require us to pay attention to expertise as part of identifying the appropriate level of society at which problems should be addressed?  The importance of the free, meaningful, and efficacious operation of mediating institutions presents the “most weighty principle” of subsidiarity:

Just as it is gravely wrong to take from individuals what they can accomplish by their own initiative and industry and give it to the community, so also it is an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do.  For every social activity ought of its very nature to furnish help to the members of the body social, and never destroy or absorb them.

(Quadragesimo anno ¶ 79)  What does this mean, if anything, for a rising tide of anti-expert populism?

I'm just starting to think about the answers, and I welcome suggestions of helpful resources (rkvischer [at] stthomas.edu).  These and related questions will be a significant component of CST's relevance to American life for the foreseeable future.  As Brooks observes,

The cultural shifts we are witnessing offer more safety to the individual at the cost of clannishness within society. People are embedded more in communities and groups, but in an age of distrust, groups look at each other warily, angrily, viciously. The shift toward a more communal viewpoint is potentially a wonderful thing, but it leads to cold civil war unless there is a renaissance of trust. There’s no avoiding the core problem. Unless we can find a way to rebuild trust, the nation does not function.

I believe that Catholic social teaching will provide important insights as we navigate these painful cultural shifts.  We need to discern and articulate those insights, and convene conversations that give the insights broad visibility and optimal opportunities to gain traction in the debates to come.  This could and should be a years-long project.