Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, July 4, 2006

"10 Catholic Intellectuals"

This collection of lectures -- Gutierrez, Glendon, Steinfels (both Peggy and Peter), Dulles, and others -- looks very worthwhile.

Tom

Benedict Punts on A Pressing Issue

Here.

Obama and "religious reasons": Questions for Steve and Tom

Thanks to Steve and Tom for their recent posts about the place and role of "religious reasons" in public discourse and policy.  A few thoughts:

First, Steve says -- and I agree, I think -- that "[i]t is not the role of government to tell us what God has to say about any subject."  Does this mean, though, that government ought not -- or, even, may not -- reflect, through expression and legislation, what the political community thinks God has to say about various subjects?

Next, Steve writes -- and I agree -- that we do not want government "using state power to put forth theological propositions."  What counts, though, as a "theological proposition"?  What if, as Michael P. has contended, human-rights claim rest foundationally on propositions about human beings (e.g., that they are "sacred") that are, or can reasonably be, regarded as, in the end, "theological"?

Third, Steve and Tom agree that those enacting legislation must "provide secular reasons to meet constitutional requirements."  This is, of course, descriptively accurate -- in that it re-states Lemon's "secular purpose" requirement.  Do Steve and Tom think, though, that there is more to the word "must" here?  Would it be wrong, illegitimate, unjust, etc., for those enacting legislation to not bother providing "secular reasons" for legislation?  What if those enacting legislation are skeptical (having read, say, a lot of Steve Smith's work) about the distinction between "secular" and other reasons?

Happy Fourth!

More yet on Obama

I agree with Tom that our institutions constitutionally presuppose a Supreme Being. I also agree that the use of “In God We Trust” on the coins and currency is constitutional (though I think the use of “In God We Trust” on the coins and currency and the like hurts rather than helps religion); so is the use of Under God in the Pledge (though the social pressure coercing little third graders should not be tolerated). I regard these monotheistic affirmations as the exceptions. They should not be the basis for allowing government to pronounce on what God has to say on any subject.

Tom, who as usual argues his case with great skill both here and in the article he cites, asks, “Shouldn't we avoid reading the Establishment Clause as containing principles condemning these foundational documents adopted around the same time?” I am not condemning those foundational documents. To the irony that God and religion is presupposed by the Constitution, I say that the question is not whether religion is favored under the Constitution, but how it is best favored. I think religion is best favored by keeping cynical and corrupt politicians (yes, I know many are fine people, but I am in an Augustinian mood, and, in any event, I do not want them using state power to put forth theological propositions) from using whereas clauses and religious symbols to the detriment of religion. For more on this, see Shiffrin, The Pluralistic Foundations of the Religion Clauses, 90 Cornell L.Rev. 9 (2004).

 

Planet of Slums

Although I'm not a regular Mother Jones reader, I found my way today to this review of "Planet of Slums," a new book by Mike Davis.  I've blogged often over the past few years about urbanism ("new" and old), cities, suburbs, Jane Jacobs, and Philip Bess, and so I was intrigued by Davis's discussion (as related by the reviewer, Joshua Jelly-Schapiro) of "urbanization without growth," a phenomenon which "has baffled development economists for years—especially those working in sub-Saharan African, where mega-cities like Lagos, Kinshasa, and Dar Es Salaam go on attracting tens of thousands of new arrivals each year even as their formal economies stagnate or even contract."

Now, according to the review, the primary villain in Davis's book is the IMF and its neo-liberal economic policies.  Maybe so.  But this bit from the review caught my eye:

Without formal work, and without the entry into secular politics that such work has traditionally provided, how do the poorest of the urban poor organize their social and political life? What offers them a “communal structure”? To this critical question, Davis offers a one-word answer: religion. “If God died in the cities of the industrial revolution,” Davis writes, “he has risen again in the postindustrial cities of the developing world.”

Today, religious organizations—Islamist, Hindu, Evangelical—are the single most important source of social cohesion among citydwellers in the developing world. Beyond spiritual sustenance and community, religious organizations offer social services no longer provided by the state, laws for virtuous conduct in chaotic environs, and membership in a global polity that transcends the corrupt nation-state that has excluded them. Political Islam continues to spread in power and influence from Cairo to Jakarta; the ascendance of its political parties—and their grassroots appeal—has received nervous attention from the Western media. Hindu fundamentalism, if remarked upon less often, has had an analogous trajectory in the bustees of Delhi and Mumbai. Pentecostal sects attract new adherents at astonishing rates from Brasilia to Johannesburg, altering political and community life in ways as yet not understood.

It is, I think, an interesting question:  Are today's "mega-cities" really "cities," in the way that "new urbanists" think of cities.  Are they, for instance -- in Joel Kotkin's words -- "sacred, safe, and busy"?  Could they be?

PB16 on Islands and Oases

Here, thanks to Sandro Magister, is an excerpt from a speech delivered by the Pope on April 6 in Rome:

[W]e all know that reaching a goal in sports or business requires discipline and sacrifice, but then all of this is crowned by success, by reaching the desired aim. And so it is with life itself: becoming men according to the plan of Jesus requires sacrifice, but this is not something negative; on the contrary, it helps us to live as men with new hearts, to live a truly human and happy life. Because there is a consumerist culture that wants to block us from living according to the Creator’s plan, we must have the courage to create first islands and oases, and then great landscapes of Catholic culture in which life follows the design of the Creator. . . .

We all ask ourselves what the Lord expects from us. It seems to me that the great challenge of our time – as the bishops on their “ad limina” visits, for example those of Africa, also tell me – is secularism: a way of living and presenting the world “quasi Deus non daretur,” as if God did not exist. The intention is to reduce God to the private sphere, to a feeling, as if he were not an objective reality, so that everyone creates his own life plans [...] and at the end, everyone is in conflict with each other. It is clear that this situation is decidedly unlivable. We must make God present in our societies once again. This seems to me the first necessity: that God be present again in our lives, that we not live as though we were autonomous, with the authorization to make up what freedom and life are. We must realize that we are creatures, realize that there is a God who has created us and that remaining in his will is not dependence, but a gift of love that makes us live. [...]

But what God? There are, in fact, many false images of God, of a violent God, etc. The second question, therefore, is this: recognizing the God who showed us his face in Jesus, who suffered for us, who loved us to the point of dying and so overcame violence. We must make present, above all in our lives, the living God, the God who is not someone unknown, invented, or just a figment of the mind, but a God who has revealed himself, who has shown himself and his face. Only in this way does our life become real, authentically human, and so also the criteria of true humanism become present in society. Here it also holds true, as we said in the first reply, that we cannot remain alone in building this just and upright life, but we must walk in the company of just and upright friends, companions with whom we can share the experience that God exists and that it is wonderful to walk with God. And to walk in the great company of the Church, which brings to us throughout the centuries the presence of the God who speaks, acts, and accompanies us.

Rod Dreher has some thoughts on the speech, here.

Obama cont'd: Secular and Religious Reasons for Legislation

Steve makes a good point about the difference between citizens' arguments and government actions: the latter are subject to the Establishment Clause and therefore to some kind of limit on reliance on religious reasons as support for legislation.  The interesting question is, what is that limit?  Steve puts it two ways: (1) that those enacting legislation must "provide secular reasons to meet constitutional requirements," and (2) that "[g]overnment may not pass a restriction of any kind with a whereas clause arguing from the authority of God" because "[i]t is not the role of government to tell us what God has to say about any subject."  The second rule is tougher, because it would stop the legislature's expression of a religious rationale for a law even if also expressed lots of secular rationales.

I certainly agree with #1 (descriptively and normatively).  I just think that it's very seldom violated: e.g there are unquestionably secular reasons supporting abortion restrictions (which is why it's funny that Obama raises that example).  There were even secular reasons motivating the restrictions on teaching evolution -- like the fear of Social Darwinism -- as the recent bio of William Jennings Bryan documents.  When people think some behavior violates God's standard, they almost always think it has bad worldly consequences as well.

I have more doubts about Steve's proposition #2 (doubts expressed here).  Wouldn't #2 make the Declaration of Independence a violation of the Establishment Clause because the Declaration grounds human being's rights on (among other things) "[the] endow[ment] by their creator"?  Wouldn't the proposition make Jefferson's Virginia Religious Freedom Statute a violation of the Establishment Clause because that statute grounds religious freedom largely (though not solely) on religious propositions such as "Almighty God hath created the mind free"?  Shouldn't we avoid reading the Establishment Clause as containing principles condemning these foundational documents adopted around the same time?  If a modern-day civil rights law contained a whereas clause referring to the equality of "all God's children" and incorporating the Declaration's claims about equality and rights coming from the divine Creator, should the clause -- or the legislation -- be invalidated?   

I'm glad to be able to talk about the Declaration today, and to wish everyone a happy 4th of July.

Tom

Obama's speech

A note on one of Tom’s reactions to Obama’s speech. Tom is critical of this passage: “Democracy demands that the religiously motivated translate their concerns into universal, rather than religion-specific, values. . . . . I may be opposed to abortion for religious reasons, but if I seek to pass a law banning the practice, I cannot simply point to the teachings of my church or evoke God's will.” Tom’s reaction is that, “[W] e can likely all agree that it is generally best for people in a pluralistic democracy to translate their religious arguments into widely accessible concepts, I doubt that ‘[d]emocracy demands [it]" in each and every case.’”

If Obama meant that each and every citizen or social movement must provide fully adequate secular reasons for their concerns, then I entirely agree with Tom. Regrettably, that seems to be a reasonable reading of the passage. I would note, however, that someone has to provide secular reasons. Government may not pass a restriction of any kind with a whereas clause arguing from the authority of God. That would violate the Establishment Clause. And it should. It is not the role of government to tell us what God has to say about any subject. If Obama meant that as a United States Senator trying to get a bill passed, he would need to provide secular reasons to meet constitutional requirements, I think he would be right. I agree with Tom, however, that it sounds as if Obama is making a point about democratic theory rather than a point about the Establishment Clause.

Religious Organizations and the Law Treatise

In the department of promotion of my own projects, may I recommend a new multiauthor treatise, Religious Organizations in the United States: A Study of Identity, Liberty, and the Law, just published by Carolina Academic Press, for purchase by your law school (or other institution's) library?  As the Carolina blurb puts it, "[t]he legal structures of religious organizations encompass not only their corporate organizations, but the many ways employment, property ownership, decisions regarding forms of ministry, and participation in society define a particular institution. . . .  The book [provides] a detailed description of policies, identity, and the effect of legal rules on church structures."  The authors include (among others) lawprofs Angela Carmella, Carl Esbeck, Edward Gaffney, Donald Hermann, Douglas Laycock, William Marshall, and yours truly, as well as well as religious-history eminence Martin Marty, USCCB general counsel Mark Chopko, leading sociologist of religion Rhys Williams, and newly minted federal judge (and ex-lawprof) Pat Schiltz.  As Rick recently noted, threats to religious institutional autonomy are becoming more frequent and pressing; this book offers some background and resources for responding to them.

Tom

Monday, July 3, 2006

Obama on Religion and Politics

Barack Obama's widely-noticed speech last week on religion and politics was a pretty good one, I think.  Pretty good, I'd claim, even apart from what any of us think about the substance of his policies vs. Republican or conservative policies.

It's no great novelty now for liberals to be touting the importance of religion.  But here are a few ways in which, I think, Obama's address is an advance over previous efforts, at least most any by politicians.  First, he explicitly recognizes the inadequacy of saying "I can't impose my beliefs on others."  He recounts that when in the 2004 campaign he was accused of not being a true Christian,

I answered with what has come to be the typically liberal response in such debates - namely, I said that we live in a pluralistic society, that I can't impose my own religious views on another, that I was running to be the U.S. Senator of Illinois and not the Minister of Illinois.

But Mr. Keyes's implicit accusation that I was not a true Christian nagged at me, and I was also aware that my answer did not adequately address the role my faith has in guiding my own values and my own beliefs.

He recognizes the long history of religious involvement in politics, and adds: "[T]o say that men and women should not inject their 'personal morality' into public policy debates is a practical absurdity.  Our law is by definition a codification of morality, much of it grounded in the Judeo-Christian tradition."  It's nice to hear that point put so straightforwardly by a Senator on the left.

Second, he avoids the liberal politicians' tendency of treating faith as simply a source of motivation for political action (which, in the hands of say John Kerry, looked like a religious veneer slapped on top of a bunch of preexisting political positions).  Obama talks about faith as a motivation for social and political action, but he also talks about faith independently as the basis for one's whole person.  He discusses this in his own life:

It wasn't until after college, when I went to Chicago to work as a community organizer for a group of Christian churches, that I confronted my own spiritual dilemma.

I was working with churches, and the Christians who I worked with recognized themselves in me. They saw that I knew their Book and that I shared their values and sang their songs. But they sensed that a part of me that remained removed, detached, that I was an observer in their midst.

And in time, I came to realize that something was missing as well -- that without a vessel for my beliefs, without a commitment to a particular community of faith, at some level I would always remain apart, and alone.

And if it weren't for the particular attributes of the historically black church, I may have accepted this fate. But as the months passed in Chicago, I found myself drawn - not just to work with the church, but to be in the church.

He also discusses it in terms of the existential answers that faith provides to Americans overall:

[Americans'] religious tendency is not simply the result of successful marketing by skilled preachers or the draw of popular mega-churches. In fact, it speaks to a hunger that's deeper than that - a hunger that goes beyond any particular issue or cause.

Each day, it seems, thousands of Americans are going about their daily rounds - dropping off the kids at school, driving to the office, flying to a business meeting, shopping at the mall, trying to stay on their diets - and they're coming to the realization that something is missing. They are deciding that their work, their possessions, their diversions, their sheer busyness, is not enough.

They want a sense of purpose, a narrative arc to their lives. They're looking to relieve a chronic loneliness, a feeling supported by a recent study that shows Americans have fewer close friends and confidants than ever before. And so they need an assurance that somebody out there cares about them, is listening to them - that they are not just destined to travel down that long highway towards nothingness.

As a corollary to this, he explicitly emphasizes that attacking social problems requires personal transformation of individuals (the disadvantaged and the powerful) as well as the commitment of social resources:

Our failure as progressives to tap into the moral underpinnings of the nation is not just rhetorical, though. Our fear of getting "preachy" may also lead us to discount the role that values and culture play in some of our most urgent social problems.

After all, the problems of poverty and racism, the uninsured and the unemployed, are not simply technical problems in search of the perfect ten point plan. They are rooted in both societal indifference and individual callousness - in the imperfections of man.

Solving these problems will require changes in government policy, but it will also require changes in hearts and a change in minds. I believe in keeping guns out of our inner cities, and that our leaders must say so in the face of the gun manufacturers' lobby - but I also believe that when a gang-banger shoots indiscriminately into a crowd because he feels somebody disrespected him, we've got a moral problem. There's a hole in that young man's heart - a hole that the government alone cannot fix.

The essential role of personal transformation in solving poverty and related problems is probably the biggest affirmative element in a conservative approach to those issues, and Obama affirms it -- at the same time as he emphasizes the need for government action.

Finally, at the end of the speech Obama tells an interesting story in which an Illinois voter called him out in 2004 for some unfair and intemperate anti-pro-life language that was then on his website, and Obama admitted this and changed the language.  The speech thus finishes with an exhortation for fair-mindedness and charity toward one's political opponents, a theme sounded throughout the text.  Both liberal and conservative religious-political activists could use that advice.

There are things to criticize in the speech (even setting aside, as I said, criticism of his substantive political positions).  Obama says:

Democracy demands that the religiously motivated translate their concerns into universal, rather than religion-specific, values. It requires that their proposals be subject to argument, and amenable to reason. I may be opposed to abortion for religious reasons, but if I seek to pass a law banning the practice, I cannot simply point to the teachings of my church or evoke God's will. I have to explain why abortion violates some principle that is accessible to people of all faiths, including those with no faith at all.

This statement goes too far.  Although we can likely all agree that it is generally best for people in a pluralistic democracy to translate their religious arguments into widely accessible concepts, I doubt that "[d]emocracy demands [it]" in each and every case.  If it did, a lot of the religious movements and figures Obama cites earlier would have violated the democratic ground rules.  In addition, abortion seems a wildly inappropriate example for the point:  there are plenty of widely accessible, non-sectarian arguments for prohibiting abortion, and you'd think he would acknowledge that (apart from whether the arguments are convincing).  Indeed, although he says something briefly about reducing abortions, there's a noticeable absence of any attempt to defend the pro-choice position once he's jettisoned (as he claims) the stock phrase about "not imposing beliefs on others."

More fundamentally, I hope that Obama's hospitable attitude toward religion in politics displayed in this speech -- including toward those on the other side politically -- would carry over into other contexts as well.  I hope he'd call for respect for pro-life religious views not only at a meeting of religious progressives, but at a meeting of NARAL or at the 2008 Democratic convention.  But overall, I thought there were a number of good things in the speech.

Tom