Mirror of Justice

Fratelli Tutti

Yesterday Pope Francis published the third encyclical (i.e., a papal letter) of his pontificate, “Fratelli Tutti,” on the theme of “fraternity and social friendship.” He explains that, though he wrote it “from the Christian convictions that inspire and sustain me, I have sought to make this reflection an invitation to dialogue among all people of good will.” At a time when COVID, racial injustice, economic uncertainty, and growing political tribalism have strained our social ties, the letter could not be more timely. Several insights are of direct relevance to our work in legal education, including how we build and steward a concept of meaningful community:

Dialogue is difficult but essential: Pope Francis writes that dialogue “calls for perseverance; it entails moments of silence and suffering, yet it can patiently embrace the broader experience of individuals and peoples. . . . [when our conversations] revolve only around the latest data; they become merely horizontal and cumulative. We fail to keep our attention focused, to penetrate to the heart of matters, and to recognize what is essential to give meaning to our lives. Freedom thus becomes an illusion that we are peddled, easily confused with the ability to navigate the internet. The process of building fraternity, be it local or universal, can only be undertaken by spirits that are free and open to authentic encounters.”

The parable of the Good Samaritan reminds us to “shoulder the inevitable responsibilities of life as it is.” Faced with “so much pain and suffering, our only course is to imitate the Good Samaritan,” as to do otherwise “would make us either one of the robbers or one of those who walked by without showing compassion for the sufferings of the man on the roadside.” We must remember that “a community can be rebuilt by men and women who identify with the vulnerability of others, who reject the creation of a society of exclusion, and act instead as neighbours, lifting up and rehabilitating the fallen for the sake of the common good.”

We are all responsible for keeping real people at the center of our work: “Solidarity finds concrete expression in service, which can take a variety of forms in an effort to care for others. . . . In offering such service, individuals learn to ‘set aside their own wishes and desires, their pursuit of power, before the concrete gaze of those who are most vulnerable . . . . Service always looks to their faces, touches their flesh, senses their closeness and even, in some cases, ‘suffers’ that closeness and tries to help them. Service is never ideological, for we do not serve ideas, we serve people,’” [and] “the scandal of poverty cannot be addressed by promoting strategies of containment that only tranquilize the poor and render them tame and inoffensive.”

Our respect for the dignity of others must be unconditional: “At a time when various forms of fundamentalist intolerance are damaging relationships between individuals, groups and peoples, let us be committed to living and teaching the value of respect for others, a love capable of welcoming differences, and the priority of the dignity of every human being over his or her ideas, opinions, practices and even sins” despite the “forms of fanaticism, closedmindedness and social and cultural fragmentation [that] proliferate in present-day society.”

Do our ambitions distract us from the needs of others? Pope Francis puts it simply: “loving the most insignificant of human beings as a brother, as if there were no one else in the world but him, cannot be considered a waste of time.” We must realize “that what is important is not constantly achieving great results, since these are not always possible. . . . it is truly noble to place our hope in the hidden power of the seeds of goodness we sow, and thus to initiate processes whose fruits will be reaped by others. Good politics [and good legal education!] combines love with hope and with confidence in the reserves of goodness present in human hearts.”

Kindness, kindness, kindness: “Saint Paul describes kindness as a fruit of the Holy Spirit (Gal 5:22). He uses the Greek word chrestótes, which describes an attitude that is gentle, pleasant and supportive, not rude or coarse. Individuals who possess this quality help make other people’s lives more bearable, especially by sharing the weight of their problems, needs and fears. This way of treating others can take different forms: an act of kindness, a concern not to offend by word or deed, a readiness to alleviate their burdens. It involves ‘speaking words of comfort, strength, consolation and encouragement’ and not ‘words that demean, sadden, anger or show scorn.’ . . . Kindness frees us from the cruelty that at times infects human relationships, from the anxiety that prevents us from thinking of others, from the frantic flurry of activity that forgets that others also have a right to be happy. . . . Kindness ought to be cultivated; it is no superficial bourgeois virtue. Precisely because it entails esteem and respect for others, once kindness becomes a culture within society it transforms lifestyles, relationships and the ways ideas are discussed and compared. Kindness facilitates the quest for consensus; it opens new paths where hostility and conflict would burn all bridges.”

As lawyers and legal educators, what simple steps might we take to integrate the Pope’s reminders with the work we have before us? This year has been shaped powerfully by disappointment and loss. How could we reframe the experience of this year with a renewed “openness that allows us to acknowledge, appreciate and love each person, regardless of physical proximity?”

How Distinctive Should Catholic Law Schools Be?

I've just posted a new paper, "How Distinctive Should Catholic Law Schools Be?," which is my contribution to the St. John's symposium exploring the forthcoming new book by John Breen and Lee Strang, "A Light Unseen: A History of Catholic Legal Education."  From the abstract:

In what ways should a Catholic law school be distinctive? To what extent should Catholic and non-Catholic law schools share similar criteria for judging institutional success? Are there circumstances under which a preoccupation with distinctiveness might distract a Catholic law school from focusing on its mission? While Catholic law schools will approach these questions from a diversity of perspectives, we should be careful neither to ignore the importance of distinctiveness nor to equate worthy manifestations of Catholic identity with only those qualities that are not also exhibited by non-Catholic law schools.

The entire symposium was first-rate, though I'm pretty sure my paper was the only one to draw lessons from the artistic merits of Metallica versus Stryper.

Why MoJ Has Mattered: Live at the Dubliner!

In early 2004, I remember sitting in my office at St. John's and getting a call from Mark Sargent asking if I wanted to participate in a new blog that he and Rick Garnett were putting together.  I was not entirely sure what a "blog" was, but as a junior law prof looking for any platform that would have me, I readily accepted his invitation.  My primary objective in my early posts was to come across as knowledgeable enough about Catholic legal theory to belong on a blog dedicated to Catholic legal theory.  As the years went by, I'm not sure my grasp of what we mean by "Catholic legal theory" became a whole lot clearer.  My favorite post of the last fifteen years ("Catholic Legal Thought: Live at the Dubliner!"), though, reflects what is undoubtedly the central legacy of MoJ in my own life: relationships. 

Since I composed that post ten years ago, law schools have gone through some tumultuous times, prompted by legitimate skepticism about the value proposition of legal education, causing us to focus on student outcomes to an extent not seen in many years, if ever.  Does that mean that the broader Catholic legal theory project from which MoJ emerged has lost some energy?  Perhaps, if measured by the number of conferences and colloquia dedicated to the field.  But not if we take a broader view to ask how and why Catholic legal education matters - a question that can only be answered comprehensively and coherently with at least some resort to Catholic legal theory, as lived out in the context of academic and professional communities.  What are we offering to prospective students and other stakeholders, and why should they care that we're Catholic?  In that sense, MoJ has been a remarkable incubator of the type of conversations - and resulting relationships - that both aim at, and reflect, the heart of the project.  Whether that continues in the form we've enjoyed for the past fifteen years or proceeds into new venues, the relationships must remain central to the work.

Civility and the pursuit of justice

Lest we grow complacent in attributing the degrading of our political culture solely to Donald Trump, Hillary Clinton steps forward to remind us that the race to the bottom is readily susceptible to a bipartisan effort. In a recent interview, she explained, "You cannot be civil with a political party that wants to destroy what you stand for, what you care about. That's why I believe, if we are fortunate enough to win back the House and or the Senate, that's when civility can start again."

Her comments reflect a fundamental misunderstanding of civility's role in the pursuit of justice.  As I explained earlier this week in an op-ed,

The means we employ in the political pursuit of our chosen values and priorities bear witness to how we view our fellow Americans.

As [Martin Luther King Jr.] reminded us during the tumult of the civil rights movement, “Hate is always tragic. It is as injurious to the hater as it is to the hated. It distorts the personality and scars the soul.”

That prison cells, firebombs and police dogs could not shake King from his commitment to civility speaks volumes about its importance to his work — and to ours.

Here is the lesson for Americans today who seek to defend their cherished values and priorities in the public square: Civility is not ultimately about manners; it’s about affirming our shared dignity and acknowledging — albeit sometimes through gritted teeth — that politics calls us to relationship.

When we allow our disagreements to obscure the dignity of our political opponents, we’re forgetting why King thought such battles were worth fighting in the first place.

You can read the whole thing here.

Summer jobs and free speech

This weekend I'm speaking at the Canadian Christian Legal Fellowship's national conference in Vancouver, and I'm struck by how little we hear in the US about current religious liberty battles north of the border.  Some of the cases track with themes arising in American lawsuits, but others reflect a much more aggressive role for the state.  For example, the Canadian government has added conditions to a popular and longstanding program funding summer jobs with a wide range of nonprofit organizations.  An attestation attached to the program's application form this year required organizations to affirm that their "core mandate" respects a variety of rights, including "the values underlying the Charter of Rights and Freedoms," and specifically mentions reproductive rights.  Not surprisingly, Catholic and other traditional Christian groups refused to sign, and they lost millions of dollars in funding that they had relied on for years.  Litigation is pending.

Religious Lawyering conference at Fordham

On Friday, I had the privilege of participating in a conference at Fordham Law School commemorating the 20th anniversary of two conferences held there that, in retrospect, initiated the religious lawyering movement 2.0 (i.e., beyond the work of Tom Shaffer and Joe Allegretti).  MoJ's own Amy Uelmen did a wonderful job as a co-organizer of the event. A few highlights:

• Strong participation from representatives of the National Association of Muslim Lawyers, an organization that was birthed at those Fordham conferences and is now a flourishing presence in communities across the country.  Listening to UW-Madison law prof Asifa Quraishi-Landes describe the group's history, it was a blessing that Muslim lawyers came together to build infrastructure for fellowship and support before 9/11, anti-Sharia legislation, and travel bans inescapably pulled the organization in the direction of civil rights advocacy.  NAML brings a formidable litigation presence today, but it's important to recognize that the group was formed by lawyers who wanted to support one another on their faith journeys within the profession.   
• Howard Lesnick's work was honored by several speakers, including Emory Christian Ethics prof Darryl Trimiew, who noted that, like Jacob, Lesnick wrestles with God.  For Lesnick - a deeply engaged skeptic - the wrestling is the point; the wrestling has not stopped; in the wrestling, there is beauty. 
• David Opderbeck called for a new generation of law and religion scholarship, with a redoubled effort to engage the latest in Christian ethical thought and theology, and Russ Pearce noted the importance of identity questions to the religious lawyering movement, both past and future.

Lucia Silecchia and I offered remarks about what insights lawyers might take from Pope Francis's apostolic exhortation, Rejoice and Be Glad.  I focused on his lament that some Christians "become incapable of touching Christ's suffering flesh in others, locked up as they are in an encyclopedia of abstractions," and his pointing to Jesus as clearing "a way to seeing two faces, that of the father and that of our brother. He does not give us two more formulas or two more commands.  He gives us two faces, or better yet, one alone: the face of God reflected in so many other faces."

This reminded me of John Noonan's Persons and Masks of the Law.  Noonan showed how lawyers use abstract principles and legal rules as masks to cover the real people affected by our work (e.g., "foreseeability" in the case of Helen Palsgraf). 

How do we train our students to utilize abstract principles wisely without obscuring the faces of those affected by their work?  How can we discard the masks without jeopardizing the healthy degree of detachment that is a key component of the rule of law?  These are not just insights for lawyers, obviously: to what extent have the bishops employed their own set of abstractions in ways that serve to obscure the faces of abuse victims?

We have not had as many conferences dedicated to such conversations since the Great Recession and ensuing Law School Troubles - ten years ago, we gathered regularly at conferences for, e.g., religiously affiliated law schools, Catholic legal theory, Catholic social thought and law.  Understandably, law schools have been focused on more pressing fiscal issues.  As the market stabilizes, reconvening with friends and fellow travelers at Fordham reminded me just how important these questions - and our persistent, institutional engagement with them - are to the well-being of our students and the broader society.

The Red Hen & Resistance

Over the weekend, the President’s press secretary, Sarah Huckabee Sanders, was asked to leave a Virginia restaurant by the owner after employees voted to refuse service based on the press secretary’s behavior defending the President’s policies.  There are reasons to be concerned with this and similar incidents. The Red Hen’s owner explained, “We just felt there are moments in time when people need to live their convictions. This appeared to be one.”

I’m all for moral agency in the commercial sphere, but I need some clarity about the moral claims at issue here.  A question for the Red Hen owner: what conviction – moral? political? culinary? -- would have been implicated, much less violated, by serving a meal to Sanders and her family? The Red Hen was not asked to cater a Trump rally or administration meeting.  If our moral convictions expand to encompass a guilt-by-association mindset applicable to all aspects of officials’ private lives, our era promises to become even more corrosive to political discourse and meaningful respect for rights of conscience, properly understood.

Would a Catholic restaurant owner be justified in refusing service to a late-term abortion provider, for example? I don’t think so.  What would be the objective of that exclusion?  What is the risk of scandal being avoided?  What edifying moral claim is being presented to the community?

Note that I’m not arguing that the Catholic restaurant owner or Red Hen owner should be legally prohibited from denying service based on a person's political views or practices – just that denying service for those reasons would not be morally justified.  (Even on the moral dimension, I don't think there is much helpful insight to draw from the Masterpiece Cakeshop case -- refusing service because you are morally opposed to what a person stands for is different than refusing to participate in an act that you believe is immoral.)

A broader point about emerging strains of “resistance” in American politics. The Church teaches that “[r]esistance to authority is meant to attest to the validity of a different way of looking at things.” (Compendium para. 400) Resistance, understood in this light, is not about public shaming, virtue signaling, or the intentional destruction of lives and reputations. It is not the all-consuming “No!”  It is, in the end, about the “Yes”—articulating and living out of an alternative vision of what can be.  Denying someone service in a place of public accommodation based on who they are or what they have done might feel good, but it is not resistance.

Does recognizing stillborn babies threaten abortion rights?

U of Arkansas law prof Jill Wieber Lens argues that tort law must recognize the true nature of the loss when medical negligence results in a stillborn baby:

Tort law, for the most part, already enables parents to sue when someone wrongly causes their child’s stillbirth . . . . However, that tort claim must properly recognize the extent of the parents’ loss: It’s not just a loss of pregnancy or of a fetus ― it’s the death of a child. Only this kind of recognition correctly incentivizes doctors and provides compensation to grieving parents.  

Proper recognition of the devastating loss after the death of a desired unborn child does not threaten abortion rights, and we cannot let the ongoing abortion debate minimize that devastation. This is something the pro-abortion rights and anti-abortion movements should be able to agree on.

Both sides of the abortion debate could and should agree on this, but I'm skeptical that they will.  Pro-abortion rights advocates are leery to recognize the fetus as a child.  If passage through the birth canal loses its moral significance, the abortion debate opens up to important and sensible new policy questions that have been marginalized in the U.S. since Roe.

Dr. King's (too frequently forgotten) legacy

I have an op-ed in today's Minneapolis Star-Tribune using the Dodge Super Bowl ad brouhaha as an opportunity to reflect on other aspects of Martin Luther King Jr.'s legacy that may be fading from view:

Dr. King’s faith was inseparable from his public witness. King was a Christian leader, and there is no point in trying to separate him, or any aspect of his public leadership, from his faith. King’s moral framework was not a vague, platitude-driven appeal to feel-good sentiments. He did not run from, nor water down, who he was or what he believed. Instead, he relied on the full power and scope of his own faith tradition to distill the essence of a foundational truth about the human condition. He focused on the restoration of relationships – on what he referred to as “the beloved community” – appealing to a widely accessible moral vision that was not dependent on any particular religious revelation or ideological agenda. It was a basic reminder not to ignore what we know about ourselves: we are social creatures who are accountable to the demands of love and justice. 

You can read the whole thing here.

Debating Religious Liberty and Discrimination

Commonweal has published my review of an important new book, Debating Religious Liberty and Discrimination, by Ryan Anderson, Sherif Girgis, and John Corvino.  Here's an excerpt from my review:

The book’s fourth and, in my view, most important lesson: restoring relationships across the political divide does not necessarily require shared beliefs, but it will require shared work. The book’s tone in this regard was set by the introduction, jointly authored by Corvino, Anderson, and Girgis. They identify foundational principles and recite a history of religious liberty in our country. In an era of rampant “fake news” accusations, setting out agreed facts before proceeding to engage arguments is (unfortunately) a bold gesture. When it comes to religious liberty and nondiscrimination, if we cannot agree on where we should go, can we at least agree on how we arrived where we are? The authors can and do. Consensus about the facts should not be mistaken for concession on the normative claims, though; neither side pulls any punches in the arguments that follow. Anderson and Girgis identify specific areas of consensus with Corvino after 237 pages of back-and-forth criticism. Robust, honest, and respectful argument can be an impetus to authentic, if not total, agreement.

You can read the whole review here.  You can - and should! - buy the book here.