The Witherspoon Institute, located in Princeton, New Jersey, recently published a document entitled Marriage and the Public Good: Ten Principles. Here is the Executive Summary:
"In recent years, marriage has weakened, with serious negative consequences for society as a whole. Four developments are especially troubling: divorce, illegitimacy, cohabitation, and same-sex marriage.
The purpose of this document is to make a substantial new contribution to the public debate over marriage. Too often, the rational case for marriage is not made at all or not made very well. As scholars, we are persuaded that the case for marriage can be made and won at the level of reason. Marriage protects children, men and women, and the common good. The health of marriage is particularly important in a free society, which depends upon citizens to govern their private lives and rear their children responsibly, so as to limit the scope, size, and power of the state. The nation's retreat from marriage has been particularly consequential for our society's most vulnerable communities: minorities and the poor pay a disproportionately heavy price when marriage declines in their communities. Marriage also offers men and women as spouses a good they can have in no other way: a mutual and complete giving of the self. Thus, marriage understood as the enduring union of husband and wife is both a good in itself and also advances the public interest.
We affirm the following ten principles that summarize the value of marriage- a choice that most people want to make, and that society should endorse and support.
Ten Principles on Marriage and the Public Good
Marriage is a personal union, intended for the whole of life, of husband and wife.
Marriage is a profound human good, elevating and perfecting our social and sexual nature.
Ordinarily, both men and women who marry are better off as a result.
Marriage protects and promotes the wellbeing of children.
Marriage sustains civil society and promotes the common good.
Marriage is a wealth-creating institution, increasing human and social capital.
When marriage weakens, the equality gap widens, as children suffer from the disadvantages of growing up in homes without committed mothers and fathers.
A functioning marriage culture serves to protect political liberty and foster limited government.
The laws that govern marriage matter significantly.
"Civil marriage" and "religious marriage" cannot be rigidly or completely divorced from one another.
This understanding of marriage is not narrowly religious, but the cross-cultural fruit of broad human experience and reflection, and supported by considerable social science evidence. But a marriage culture cannot flourish in a society whose primary institutions-universities, courts, legislatures, religions-not only fail to defend marriage but actually undermine it both conceptually and in practice.
Creating a marriage culture is not the job for government. Families, religious communities, and civic institutions-along with intellectual, moral, religious, and artistic leaders-point the way. But law and public policy will either reinforce and support these goals or undermine them. We call upon our nation's leaders, and our fellow citizens, to support public policies that strengthen marriage as a social institution including:
Protect the public understanding of marriage as the union of one man with one woman as husband and wife.
Investigate divorce law reforms.
End marriage penalties for low-income Americans.
Protect and expand pro-child and pro-family provisions in our tax code.
Protect the interests of children from the fertility industry.
Families, religious communities, community organizations, and public policymakers must work together towards a great goal: strengthening marriage so that each year more children are raised by their own mother and father in loving, lasting marital unions. The future of the American experiment depends on it. And our children deserve nothing less. "
For any capacity it may have to advance the argument, I am grateful for Rob's invitation to clarify where he and I diverge in our understandings of subsidiarity. I am not hopeful, though, as the disagreement, which has been aired here many times, goes to whether things -- individuals and societies -- have goods that are for them a natural law.
Rob's work on subsidiarity (in, e.g., "Subsidiarity as a Principle of Governance: Beyond Devolution," 35 Indiana Law Revew 103 (2001) and "Subsidiarity as Subversion," 2 Journal of Catholic Social Thought 309 (2005)), which I admire, proceeds, as his recent post reiterates, from a concern lest we "limit subsidiarity based on the (highly contested) contours of the natural law." I deny the dilemma.
Subsidiarity, as I understand the principle, is a correlative of the natural law of human individuals and societies, a principle of coordination and non-absorption among various seekers, individual and societal, of the good. More important than my holding this view of subsidiarity is the fact that, as I read them, this is the view advanced in the encyclicals. Subsidiarity is the principle governing our participated, natural-law shares in the divine governance; subsidiarity simply doesn't apply except as principle of social justice reflective of the true common good. It's not a question of, as Rob writes, "local empowerment" ex nihilo. The question, as I understand it, concerns where certain ruling powers having already been located by nature (or supernature). Marriage is one of those places, and subsidiarity calls for its respect and nurturance. Subsidiarity is not "self-serving;" it serves the proper goods of individuals and of societies, and it seves the common good. That, at least, is how I read the Roman teachings. They affirm a certain sort of pluralism by affirming that the authority of societies seeking their respective goods is natural, not a contingent concession of a totalitarian or centralizing state.
Rather than quote the encyclicals, which everyone has easy access to, this excerpt from Joahnnes Messner's influential Social Ethics: Natual Law in the Western World (1949, 1965) nicely captures what the Church has, I think, been prosposing:
"The common good principle and the principle of subsidiary function are concerned with two sides of one and the same thing. Thus it was that Pius XI, when he coined the term 'subsidiary function', called it the 'fundamental principle of social philosophy.'. . . If the principle of subsidiary function were only a formal principle, then all natural law principles would have only a formal nature. . . . The principle of subsidiarity is what brings the functions of the state into the perspective of the actual common good. This is characterized by the fact that the political community is an association of invidivual and social persons with their own existential ends and their corresponding tasks, rights, and powers, who can reach their essential self-fulfillment only by complying with the corresponding responsibilities implied in these ends" (pp. 209, 211, 630).
I understand that this won't satisfy sceptics about the natural law. But, needless to say, the encyclicals that advanced the modern Catholic concept of subsidiarity entertained no scepticism regarding the bindingness (and knowability) of the natural law. For the origin of the term subsidiarity, as folded into the tradition by Leo XIII and Pius XI, Luigi Taparelli's work is the place to go.
A given body politic may not be up to the task of implementing the natural law, but this would not be with subsidiarity's blessing. And, as often happens, I'm reminded of this line spoken by Maritain: "Men know [the natural law] with greater or less difficulty, and in different degrees, running the risk of error here as elesewhere."
The June issue of The Atlantic has (in addition to a really funny send-up of management-consulting-speak) a long piece by Jeffrey Rosen called, "The Day After Roe." (Unfortunately, the full essay is available only to subscribers.) In a nutshell, Rosen works through the various scenarios and developments -- political and legal -- that might follow a reversal by the Court of Roe v. Wade. The working premise for the piece is that Justice Stevens has retired, President Bush has nominated a "fire-breathing social conservative", the Democrats have filibustered, the Republicans have gone "nuclear," and so the Court that hears arguments in the partial-birth-abortion case has five possibly anti-Roe members. "Because of the intricacies of American federalism," Rosen writes, "and the polarization of American politics exacerbated by Roe itself, the moderate national consensus about abortion might not be reflected in law for years to come, andthe political landscape could be transformed beyond recognition."
Near the end of the piece, Rosen considers the possibility that a post-transformation Democratic Congress passes (and President Clinton signs) a federal law guaranteeing early-term abortions -- notwithstanding the enactment of now-constitutional, more restrictive laws in some states -- but "conservative activists" on the Court strike down the federal law on New Federalism / enumerated-powers grounds. "This," Rosen notes, "would be a brazen act of judicial activism - no less anti-democratic than Roe itself."
What does Rosen mean here, exactly? (Or, what do we mean when we characterize -- as most of us have, at one time or another -- a judicial decision as "anti-democratic"?) Put aside, for now, the longrunning debate whether "judicial activism" is a particularly helpful term. What does it mean to say that Roe is "anti-democratic," and in what sense would it be "anti-democratic" for the Court to invalidate a federal law that itself purported to displace states' more restrictive abortion laws?
We could say, I guess, that both Roe and the hypothesized later case are "anti-democratic" in the sense that both involve the exercise of judicial review and the invalidation by unelected judges of a measure enacted through the legislative process by politically accountable representatives. We might think that a decision is either anti-democratic, or it's not -- and both of these are. But, if this is all that "anti-democratic" means, then it's hard to see why the term should be used or regarded as an epithet.
Or, maybe it's better to say that Roe is a lot more anti-democratic because, after all, it invalidated dozens of state laws, while the hypothesized later case only invalidates one. Or, maybe the later case is rendered less anti-democratic by the fact that the law it invalidates has the purpose and (anti-democratic?) effect of displacing the now-constitutionally-permissible, more restrictive laws enacted in some states?
I'm inclined to think that Roe was "anti-democratic" not so much because it invalidated the particular products (i.e., statutes) of democratic processes, but because it removed from the sphere of politics an issue about which the Constitution permits reasonable people of good will to disagree, argue, and compromise. This is not true, it seems to me, of the cases that Rosen would probably identify as the results of "conservative judicial activism", like Lopez or Boerne -- decisions that did not purport to answer definitively disputed normative or policy questions, but only to identify the political communities that are authorized to answer them (or not).
Last week Patrick offered a subsidiarity-based defense of the Federal Marriage Amendment, asserting that:
the primary place of subsidiarity in the marriage amendment argument, as I understand it, concerns the government's responsibility to assist the body politic in giving effect to the particular function/authority that precedes the state. I therefore agree with those who insist that subsidiarity does not necessarily assign this task to the lowest possible level, e.g., states, governments, or individuals. Marriage needs help, and those charged with the common good are to provide it, consistent with their own proper functions.
I agree that subsidiarity cannot just stand for devolution across the board, or else we'll soon be one step removed from the state of nature, empowering any local actor so inclined to pursue their own moral project, regardless of its corrosive effect on the common good. But I'm left feeling a bit perplexed if the alternative approach is to limit subsidiarity based on the (highly contested) contours of the natural law. It sounds like we're telling society, "we implore you to honor subsidiarity's localizing impetus, except when the issue is one that we don't want to localize." If subsidiarity's implementation is going to turn on a contest of overarching principles, it's not going to go very far. Supporters of the Federal Marriage Amendment can insist that marriage between a man and woman is so important that local exceptions are forbidden; Massachusetts can insist that having a pool of potential adoptive parents based only on relevant parenting criteria (as determined by the state) is so important that local exceptions are forbidden; California can insist that having access to employer-provided birth control is so important that local exceptions are forbidden, etc. Once we start arguing over which principles are so important that the higher body is justified in supporting the principle's vitality in the society, subsidiarity recedes from the conversation. To a certain extent, this is unavoidable (e.g., we're not talking about subsidiarity in our approach to regulating murder), but we need to be very careful in letting the non-negotiable moral principle overwhelm the inclination toward local empowerment.
I'm not suggesting that we can do away with a debate about principles; I'm just saying that if we carve out an exception to local empowerment on contested moral issues based on our own contested understanding of the natural law, we shouldn't be surprised if the society views our invocation of subsidiarity as self-serving.
I was going through some things today (avoidance behavior), and came across a paper by Stanley Hauerwas, "Punishing Christians," which he had presented at Notre Dame a few years ago. It is, among other things, a fascinating engagement with John Paul II, Oliver O'Donovan, and Cardinal Dulles on punishment theory and capital punishment. The paper's conclusion, I thought, is particularly interesting: "What Christians have to offer our non-Christian brothers and sisters is not a better theory [of punishment], but a practice of punishment that can be imitated. . . . Christians . . . fail themselves and their non-Christian neighbors when they act as if punishment is a problem 'out there.' What Christians must first give to the world is to be a community that can punish. Only then will the world have an example of what it might mean to be a community that punishes in a manner appropriate for a people who believe that we have been freed by the cross of Christ from the terror of death."
We at Villanova are looking foward to hosting the first annual Scarpa Conference in Catholic Legal Studies on Friday, September 15, 2006. The topic wil be From John Paul II to Benedict XVI: Continuing the New Evangelization of Law, Politics, and Culture. His Eminence Avery Cardinal Dulles, S.J., will deliver the keynote address. Also presenting papers will be MOJers Rick Garnett (Lilly Endownment Associate Professor, Notre Dame Law School), Amy Uelmen (Director, Institute on Religion, Law and Lawyer's Work, Fordham University School of Law), and Patrick Brennan (John F. Scarpa Chair in Catholic Legal Studies, Villanova University School of Law).
The topic of the conference was chosen before Pope Benedict published Deus caritas est. The enclyclical now provides an excellent focal point for a study of the developing social doctrine of Pope Benedict. Topics will include love, subsidiarity, libertas Ecclesiae, evangelization, and justice.
If I can answer any questions about this Conference, please feel free to email me. We hope to see lots of old friends and new faces at Villanova this September. Those who cannot attend the conference will be pleased to know that all of the papers will be published in the Villanova Law Review. Those hoping to attend should plan early; we are informed that Parents' Weekend at Villanova will result in high demand for loding on the nights of Sept. 14 and 15. The Conference will be held in Villanova's Connelly Center, which is on the main campus.
By the way, Justice Antonin Scalia has graciously accepted our invitation to deliver the keynote at the Second Annual Scarpa Conference. We should be able to announce the date and topic in September of this year. Please stay tuned.
"Pro-Life Progressivism" must sound
as oxymoronic to some citizens as "Pro-Choice Conservatism" must sound to
others. That's the fix we're in, and have been, since 1973, after Roe
v. Wade, when defining groups often found it feasible to organize people,
raise funds, defame "the other," and stop thinking. When I follow two
autos bearing competitive bumper stickers -- "Abortion Is Murder" vs. "A Woman's
Body Is Her Own To Do With What She Wants" -- and inhale the carbon monoxide
their exhaust spews my way, one thing I know for sure is this: Neither is an
invitation to dialogue. Both are conclusions, not premises or
hypotheses. The one rules out thinking about "rights" and the other
refuses to consider that there are "life" issues in abortion. Poised
between the two camps of militants or in the trail of their exhaust pipes, most
other non-polarized citizens gasp. They do know and show that "both sides"
have something to say that all should consider. Few find ways to try to
reach the other and help the "in-betweens."
An exception was our neighbor
and friend Cardinal Joseph Bernardin, who was setting forth a "Seamless Garment"
or "Consistent Life Ethic" -- for which he probably lost admirers from one camp
and was certainly blasted by sharp-shooters from the other. Still, many
did entertain second thoughts when they thought at all about what he was
proposing.
Today all I can do is point to another effort, a
scholarly attempt to get a hearing for "Pro-Life Progressivism."
Responsible is Tom Berg, a.k.a. Professor Thomas C. Berg, "Faculty and Symposium
Advisor" and trusted friend ever since he used to stop by during his University
of Chicago Law School days and prompt me to think. Now he does it in print
in his Foreword to the Spring 2005 University of St. Thomas Law Journal
from Minneapolis (see below for details).
The symposium asks, "Can
the Seamless Garment Be Sewn? The Future of Pro-Life Progressivism."
Among the contributors are people one takes seriously (or, at least, I take
seriously), such as Jim Wallis, Sidney Callahan, Ted Jelen, and John
Witte. Actually, Witte's article is not quite on subject; it's in Part Two
of the same issue, but it poses "The Challenges of Christian Jurisprudence,"
which is related to the symposium.
It's frustrating, I know, to be told
that there's something here which more of us ought to read, and then not to be
given easy access. Your friendly neighborhood law school library will be
of help. The single issue can come to you for $20.00. Berg reminds
readers that the Catholic moral-political tradition in America has led many to
"oppose the taking of human life not only in cases of abortion but also in cases
of war -- or at least war not justified as a strict necessity for defending
others' lives." Oh-oh! He quotes Pope John Paul II, so often invoked
on anti-abortion causes, but pushed past when he is cited as a foe of capital
punishment. Berg, not himself Catholic, likes the Catholic progressive
tradition, sometimes noticed by Catholic politicians, on "anti-poverty programs,
environmental protection measures, and worker's rights," as human-dignity and
human-life issues. He reminds those who welcome such witness that they
have some listening to do on the other part of the Bernardin-John Paul II
program.
This column will settle nothing. I just wanted to tell you
what I "sighted" this week.
Resources:
The Law Journal may be contacted at: University of St.
Thomas Law Journal, 1000 LaSalle Ave., MSL 225, Minneapolis, MN 55403; or
by email at: [email protected]. For further details, visit:
http://www.stthomas.edu/lawschool/rw/rw_re.cfm.
----------
Sightings comes from the Martin Marty Center at the
University of Chicago Divinity School.
My friend and colleague, Amy Barrett, gave a wonderful talk at this year's graduation ceremony at Notre Dame Law School on what it might mean to be "a different kind of lawyer", i.e., the kind that Notre Dame claims to aspire to produce. The speech is not long, and I think many MOJ readers would really enjoy it. Here's the heart of it:
So what then, does it mean to be a different kind of lawyer? The implications of our Catholic mission for your legal education are many, and don’t worry - - I’m not going to explore them all in this short speech. I’m just going to identify one way in which I hope that you, as graduates of Notre Dame, will fulfill the promise of being a different kind of lawyer. And that is this: that you will always keep in mind that your legal career is but a means to an end, and as Fr. Jenkins told you this morning, that end is building the kingdom of God. You know the same law, are charged with maintaining the same ethical standards, and will be entering the same kinds of legal jobs as your peers across the country. But if you can keep in mind that your fundamental purpose in life is not to be a lawyer, but to know, love, and serve God, you truly will be a different kind of lawyer.
Marty Lederman has a detailed, helpful post over at Balkinization, discussing the recent decision by a federal district judge in Iowa, "declaring unconstitutional the State of Iowa's establishment of a rehabilitation program operated in the state prison system by the InnerChange Freedom Initiative, a substidiary of Chuck Colson's Prison Fellowship Ministries." (Marty's words). Marty writes, quoting the court:
In the court's words, "state funds were used intentionally to indoctrinate Iowa inmates [within the state prison], by a non-profit religious service provider preferred by the state in its selection process, into a form of the Christian religion in the belief that the indoctrination, combined with the communal rehabilitation model, would be of some help in their rehabilitation." The funded program is faith-intensive, and fundamentally religious in nature: "The overtly religious atmosphere of the InnerChange program is not simply an overlay or a secondary effect of the program—it is the program. There are no separate educational and religious functions in the InnerChange program as there were in Agostini . . . . Here, every activity—worship services, revivals, community meetings, daily devotionals—is organized and developed by the InnerChange program and is designed to transform an individual spiritually. Even the otherwise traditional rehabilitation classes themselves . . . have been turned into classes intended to indoctrinate inmates into the Christian faith."
Now, both the trial-court judge, and Marty in his post, make extensive use of the term "indoctrination." I wonder, what exactly is this word intended to communicate? What does it communicate, about the motives and goals of the teachers participating in the InnerChange program, about the nature of religious belief and transformation, about courts' understanding of what religion is, and about the disposition and goals of the participating inmates?
My own view is that the Court in the late 1960s and early 1970s made use of "indoctrination" (and "sectarian") in an unfortunate way, that owed too much to Paul Blanshard- and Hugo Black-style anti-Catholicism (i.e., "our public schools educate children, and promote unity; the Catholic schools indoctrinate, and are divisive", etc., etc.). To be clear, it is obvious that neither Marty nor the trial judge in Iowa intend this meaning. Still, the question remains: What is "indoctrination" and what is (or should be) the term's constitutional significance?
What markers distinguish "indoctrination" from "conveying claims about the world that, the speaker hopes, will appeal to the hearer's reason and, perhaps, transform his or her thinking about the world"? Is there a distinction between "teaching about religion" and "indoctrination"? Coming at the matter in another way, in what sense is what was happening in the InnerChange program -- which aims, in a comprehensive way, to "transform an individual spiritually" -- "indoctrination"? Notice that the court distinguishes explicitly between "educational" and "religious" functions, stating that "every activity" of InnerChange is, again, "designed to transform an individual spiritually." I would have thought, though, that the line between "education" and "transform[ation]" was not so clear.
Now, none of this is to dispute the court's or Marty's conclusion that, given the relevant doctrines, texts, and precedents, the trial judge was correct in invalidating the InnerChange program. I can think of many reasons why reasonable people of good will, including those who might well believe that religious transformation would be good for inmates and for "society", might nonetheless conclude that this program goes too far. I'm not sure, though, how much work the word "indoctrination" should do in guiding us to this conclusion.
I would like to thank Rick for his informative posting, and I am sorry for the trouble that he had waiting on the tarmac for six hours. It seems that airplanes and busy runways can offer opportunities for mini-retreats. I’ll have to keep this in mind.
I was unaware of the fact that there was a three day conference and discussion on these important topics. Since I was not present, I hope I am not intruding into Rick’s invitation by responding to his request that he would like to hear the thoughts of those who were present. It may also be that my few thoughts were raised by some who did attend.
If there is an impression that “it all begins with Rerum Novarum” (CST and, therefore, CLT), I think that would be a flawed assumption. There is no question that Pope Leo XIII’s papacy and his great encyclical are important for any serious Catholic investigation, but there is a preceding foundation that needs to be taken into account.
The foundation begins with the need for solid catechesis. A lot of us involved with the Church and its educational efforts, particularly at the tertiary and post-tertiary level have come to realize the impoverishment of understanding the faith. The higher one goes in the formal educational system, the easier it becomes to assume that students and faculty have learned and taught the first principles of the faith. This assumption, as it turns out, is often wrong. Essential tools for remedying this would be texts like the Catechism of the Catholic Church (especially its outline and using its footnotes as invitations to further, deeper study), a good “sources” book such as Denzinger, and another excellent and readable text called “An Introduction to Christianity” written by a young German theologian back in 1968. Having a better and solid understanding of Christianity and Catholicism, we can better understand the tasks that CST and CLT have regarding the salvation of humanity. While the corporal works of mercy are important to the Church, that is not why God gave us this great gift, and that is not why God became revealed to us on the cross.
With the foundation in mind, the next step is to begin to examine the role of the Church in the temporal order, for that is where CST and CLT come into play. The issues that fascinate us today concerning bioethics, family life, the use of force (“just war theory”), humanitarian intervention, the role of Catholics in public/political life, the role of the laity, human rights, etc. did not begin in the twentieth century. The history of the Church and human history show us otherwise. I think that is why we need to be familiar with the existence and then the content of a rich deposit of literature that captures the work of the Church and its members since through the progress of time.
For example, there are works of Augustine and Aquinas; the texts mentioned in “sources” books; the bibliographic materials put together by Prof. Sylvester Hemleben and published by the University of Chicago Press in the 1940s; the Herculean bibliographic efforts of Sister Claudia Carlen, IHM beginning in the 1930s and extending into the 1970s; the commendable commentaries and translation activities of Mr. John Eppstein in the 1930s; and the activities of James Brown Scott and Oxford University Press (now available through Hein On-Line) of preserving the extraordinary work of the Schoolmen Francis Suárez and Francis de Vitoria who wrote about the use of force and discussed human rights in the sixteenth-early seventeenth centuries. Social justice is a phrase often heard in CST and CLT schools, but its origins are less well known. The work of the nineteenth century Luigi Taparelli d’Azeglio is crucial to any endeavor of seriously studying “social justice.” Taparelli’s works have never been translated into English; however, Prof. Thomas Behr has given some important conferences and published some good articles on the thought of Taparelli. I am beginning to work on a project of translating Taparelli’s Saggio Teoretico di Diritto Naturale—anyone interested in helping?
With some command of these resources, the teacher, the student, and anyone else interested in CST and CLT can begin to chart the paths of numerous, potentially rewarding and enlightening investigations which bring us to the rich discussions of the twentieth and twenty-first centuries. Even an introduction to these materials will give the serious and humble investigator an appreciation of how the Church and its members have tackled the meaning of “the rule of law” over time. But this can only be a beginning as I have learned through my experience of directing a seminar this past semester entitled “The Rule of Law and the Thought of John Paul II.” My students and I had barely made a scratch in the surface of the contributions to some of the issues of concern to CST/CLT study proffered by principally one pope of recent times.
Let me conclude these ruminations by thanking Rick for the questions he has posed. I think they will open many doors to fruitful study, discussion, and learning. Again, I hope that I have not intruded into a discussion properly belonging to those who attended the Fordham gathering.RJA sj
