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.

Saturday, May 26, 2007

Christian Realism and Iraq

Theologian Gary Dorrien of Columbia and Union Seminary (NYC) talks to the Times' Peter Steinfels about Reinhold Niebuhr's "Christian realism" and its insights for Iraq and other foreign-policy dilemmas of today.  According to Dorrien, most relevant today are Niebuhr's

sense that elements of self-interest and pride lurk even in the best of human actions. His recognition that a special synergy of selfishness operates in collectivities like nations. His critique of Americans’ belief in their country’s innocence and exceptionalism — the idea that we are a redeemer nation going abroad never to conquer, only to liberate.

Of course, the same realism also made Niebuhr assert the need to stand up militarily to those whose projects are far worse than America's -- first the Nazis (againet the great weight of mainline clergy opinion before Pearl Harbor) and later the Soviets.  But the willingness to use force even for a relatively just cause will prove disastrous if it's not sobered by the recognitions above.  All of which has so much to do with why the Iraq war was dubious in the first place -- why, for example, it was unlikely to be received and acted on by others as a model action of liberation -- and why the administration officials who pushed hard for it were prone to be cavalier in handling its aftermath.

Tom

Church-State relations in Massachusetts

Yesterday, May 25, the Supreme Judicial Court of Massachusetts issued its decision in the case of Catherine R. Maffei, individually and as trustee, and others vs. the Roman Catholic Archbishop of Boston. [Download Maffei.mht ] (I see that Rick has just posted a short discussion on this case, too.) The civil courts in the Commonwealth of Massachusetts were asked to consider a number of important legal questions concerning fiduciary and other relationships between parishioners and the Archdiocese of Boston stemming from a parish closing. To say that the Boston Archdiocese is in the vortex of numerous legal issues would be an understatement. However, confronted with declining numbers of worshippers in certain regions of the Archdiocese, Church authorities have had to address difficult questions about the number of parishes needed in particular geographic regions of the Archdiocese necessary to serve the faithful. The Maffei family had donated land and money to the Archdiocese over fifty years ago for the establishment of St. James the Great parish in Wellesley. But with the announced closing of the parish to which they contributed, the Maffeis brought a lawsuit arguing that the spiritual authority of a member of the clergy over members of his faith, without more, gives rise to a cognizable fiduciary relationship, or alternatively a legal relationship of “trust and confidence.” The courts involved in this litigation prudently declined to become involved with a case essentially dealing with the internal affairs of a religious organization and its members. A telling portion of the unanimous opinion of the Supreme Judicial Court states:

A ruling that a Roman Catholic priest, or a member of the clergy of any (or indeed every) religion, owes a fiduciary-confidential relationship to a parishioner that inheres in their shared faith and nothing more is impossible as a matter of law… Such a conclusion would require a civil court to affirm questions of purely spiritual and doctrinal obligation. The ecclesiastical authority of the (Archdiocese and the pastor of the parish) over the parishioners, the ecclesiastical authority of the (Archdiocese and the pastor of the parish), the state of canon law at the date of the property transfer, the knowledge of the canon law that might reasonably be attributed to the (Archdiocese and the pastor of the parish) in 1946, the canonical obligation of (the pastor), if any, to inform parishioners of canonical law—all of these inquiries bearing on resolution of the Maffeis, fiduciary claims would take us far afield of “neutral principles of law.”

In support of the opinion, the court relied on the First Amendment of the United States Constitution and on the failure of the plaintiffs to allege claims cognizable by the civil authority. Some commentators may argue that the court left open a door for further litigation when it addressed the standing issue and stated that only the Attorney General of the Commonwealth of Massachusetts has standing to prosecute claims to enforce a trust’s provisions. Whether the gift of the Maffeis is a trust prosecutable by the Attorney General may be a lingering question for some. It will be interesting to see if Attorney General Martha Coakley pursues the matter. I have previously commented on one aspect of General Coakley’s understanding of constitutional laws and duties [HERE]. However, based on what the court said in the remainder of its opinion regarding the nonexistence of a trust, I think it doubtful that the Attorney General could argue that she would have standing to prosecute the enforcement of a trust since the court essentially concluded that none exists.    RJA sj

A really good valedictory address

In my (admittedly limited) experience, student valedictory addresses tend to be lame.  This one, delivered at Notre Dame by Michael Rossmann, definitely was not.  Check it out.  (Apparently, Mr. Rossmann is entering the Society of Jesus.)

Two interesting church-autonomy cases

Prof. Friedman at the Religion Clause blog reports that the Massachusetts Supreme Judicial Court has dismissed, on internal-church-governance grounds, a challenge to the decision of the Archdiocese of Boston to close and sell off St. James Church in Wellesley.  And, the Supreme Court of Canada's Northwest Territories has ruled -- citing "societal change[s]" toward more "inclusive" understandings of school governance -- that (quoting Prof. Friedman) the "Yellowknife Catholic school board that operates state-supported religious schools may not prevent non-Catholics from running in school board trustee elections."

Love and Urbanism

Thanks to MOJ-friend Philip Bess (buy his book, "Til We Have Built Jerusalem," here) for this G.K. Chesterton quote:

Let us suppose we are confronted with a desperate thing--say Pimlico.  If we think what is really best for Pimlico we shall find the thread of thought leads to the throne of the mystic and the arbitary. It is not
enough for a man to disapprove of Pimlico: in that case he will merely cut his throat or move to Chelsea. Nor, certainly, is it enough for a man to approve of Pimlico: for then it will remain Pimlico, which would
be awful. The only way out of it seems to be for somebody to love Pimlico: to love it with a transcendental tie and without any earthly
reason. If there arose a man who loved Pimlico, then Pimlico would rise into ivory towers and golden pinnacles; Pimlico would attire herself as
a woman does when she is loved. For decoration is not given to hide horrible things; but to decorate things already adorable. A mother does not give her child a blue bow because she is so ugly without it. A lover does not give a girl a necklace to hide her neck. If men loved Pimlico as mothers love children, arbitarily, because it is _theirs_ Pimlico in a year or two might be fairer than Florence. Some readers will say that this is a mere fantasy. I answer that this is the actual history of mankind. This, as a fact, is how cities did grow great. Go back to the darkest roots of civilisation and you will find them knotted round some sacred stone or encircling some sacred well. People first paid honour to a spot and afterwards gained glory for it. Men did not love Rome because
she was great. She was great because they had loved her.

Friday, May 25, 2007

"Sexual Identity Law in Context"

A former student (and present friend) of mine, Shannon Gilreath, has just published a casebook:

Sexual Identity Law in Context:  Case and Materials (Thomson * West, 2007).

Shannon, who now teaches at Wake Forest, is a gay man and a convert to Catholicism.  Like yours truly, Shannon dissents from the magisterial teaching on homosexuality.

The Death Penalty for Child-Rape

Constitutional doctrine relating to capital punishment is (in)famously tangled.  That said, one proposition that, I suspect, most who litigate, teach, or write in the area have long thought -- since Coker v. Georgia (1977), anyway -- one could take to the bank is that the death penalty is an unconstitutional punishment for non-homicide crimes.  The New York Times is reporting, though, that the Louisiana Supreme Court has "upheld the death sentence of a man convicted of raping an 8-year-old girl.  Legal experts say the man, Patrick Kennedy, is the only inmate on death row in the United States who was not convicted of committing or participating in a killing."

For more, here is my post at the University of Chicago Law Faculty blog.

Miller on Kinsley on Hitchens

Over at the First Things blog, Professor Robert Miller has a devastating take-down of Michael Kinsley's lame reivew of Christopher Hitchens's effort to cash in on the hipster-atheist trend, God Is Not Great:

Here’s the latest example of a fascinating, though depressing, cultural phenomenon. A fellow who clearly knows nothing about a deep and difficult intellectual problem produces a manuscript purporting to resolve the problem definitively. Such a fellow is a crank, you might think, and will quite properly be ignored. But, no, he actually finds a publisher for his book, and a respected one at that. Even more surprisingly, the New York Times commissions a review of the book from a famous columnist, and, instead of exposing the book for the ignorant twaddle that it is, the columnist writes a glowing review. How does this happen?

Generally speaking, of course, it doesn’t. We have social institutions like the New York Times Book Review precisely in order to make sure that it can’t. Given the amount of material published nowadays, it’s essential to be able to sort the good from the bad, and we rely on prestigious publications like the Times Book Review to do part of the work for us. Book reviewers for this paper are expected to know something about the topics of the books they review, and they are expected to exercise informed judgment, separating the serious books from the intellectual junk in a basically fair sort of way. If a book like the one I describe makes it all the way to a positive review in the Times, there has been a serious failure of the epistemic institutions of our society.

And such there has been, and such there commonly are, when the subject is the philosophical treatment of religion.

Thursday, May 24, 2007

Catholic, Sort of

[Mark:  I'm posting the whole thing only because it can't be accessed by non-subscribers and because so many MOJ readers will be interested in it.]

New York Times
May 25, 2007

Op-Ed Columnist

The Catholic Boom
By DAVID BROOKS

The pope and many others speak for the thoroughly religious. Christopher Hitchens has the latest best seller on behalf of the antireligious. But who speaks for the quasi-religious?

Quasi-religious people attend services, but they’re bored much of the time. They read the Bible, but find large parts of it odd and irrelevant. They find themselves inextricably bound to their faith, but think some of the people who define it are nuts.

Whatever the state of their ambivalent souls, quasi-religious people often drive history. Abraham Lincoln knew scripture line by line but never quite shared the faith that mesmerized him. Quasi-religious Protestants, drifting anxiously from the certainties of their old religion, built Victorian England. Quasi-religious Jews, climbing up from ancestral orthodoxy, helped shape 20th-century American culture.

And now we are in the midst of an economic boom among quasi-religious Catholics. A generation ago, Catholic incomes and economic prospects were well below the national average. They had much lower college completion rates than mainline Protestants. But the past few decades have seen enormous Catholic social mobility.

According to Lisa Keister, a sociologist at Duke, non-Hispanic white Catholics have watched their personal wealth shoot upward. They have erased the gap that used to separate them from mainline Protestants.

Or, as Keister writes in a journal article, “Preliminary evidence indicates that whites who were raised in Catholic families are no longer asset-poor and may even be among the wealthiest groups of adults in the United States today.”

How have they done it?

Well, they started from their traditional Catholic cultural base. That meant, in the 1950s and early ’60s, a strong emphasis on neighborhood cohesion and family, and a strong preference for obedience and solidarity over autonomy and rebellion.

Then over the decades, the authority of the church weakened and young Catholics assimilated. Catholic values began to converge with Protestant values. Catholic adults were more likely to use contraceptives and fertility rates plummeted. They raised their children to value autonomy more and obedience less.

The process created a crisis for the church, as it struggled to maintain authority over its American flock. But the shift was an economic boon to Catholics themselves. They found themselves in a quasi-religious sweet spot.

On the one hand, modern Catholics have retained many of the traditional patterns of their ancestors — high marriage rates, high family stability rates, low divorce rates. Catholic investors save a lot and favor low-risk investment portfolios. On the other hand, they have also become more individualistic, more future-oriented and less bound by neighborhood and extended family. They are now much better educated than their parents or grandparents, and much better educated than their family histories would lead you to predict.

More or less successfully, the children of white, ethnic, blue-collar neighborhoods have managed to adapt the Catholic communal heritage to the dynamism of a global economy. If this country was entirely Catholic, we wouldn’t be having a big debate over stagnant wages and low social mobility. The problems would scarcely exist. Populists and various politicians can talk about the prosperity-destroying menace of immigration and foreign trade. But modern Catholics have created a hybrid culture that trumps it.

In fact, if you really wanted to supercharge the nation, you’d fill it with college students who constantly attend church, but who are skeptical of everything they hear there. For there are at least two things we know about flourishing in a modern society.

First, college students who attend religious services regularly do better than those that don’t. As Margarita Mooney, a Princeton sociologist, has demonstrated in her research, they work harder and are more engaged with campus life. Second, students who come from denominations that encourage dissent are more successful, on average, than students from denominations that don’t.

This embodies the social gospel annex to the quasi-religious creed: Always try to be the least believing member of one of the more observant sects. Participate in organized religion, but be a friendly dissident inside. Ensconce yourself in traditional moral practice, but champion piecemeal modernization. Submit to the wisdom of the ages, but with one eye open.

The problem is nobody is ever going to write a book sketching out the full quasi-religious recipe for life. The message “God is Great” appeals to billions. Hitchens rides the best-seller list with “God is Not Great.” Nobody wants to read a book called “God is Right Most of the Time.”

Cortez the Killer

For you Neil Young fans, listen to this brilliant performance while you read this piece:

Pope faces German revolt as anger grows in Latin America

John Hooper in Rome and Rory Carroll in Caracas
Friday,  May 25, 2007
The Guardian
            
      

Pope Benedict was in trouble on two fronts yesterday, struggling to contain anger over remarks he made in Latin America and facing a revolt by former colleagues in Germany.

Following criticism of his views on the spread of Christianity in Latin America, the Pope acknowledged to pilgrims in Rome that "shadows" accompanied the conversion of indigenous groups. He said it was impossible "to forget the suffering [and] injustices inflicted by the colonisers on the indigenous population".

But his latest statement stopped well short of the apology demanded by, among others, Venezuela's president, Hugo Chávez, and he repeated his claim that Catholicism had shaped South America's culture favourably.

On a tour of Brazil earlier this month, the Pope said indigenous populations had welcomed European priests, who arrived with the conquistadores, and claimed they had been "silently longing" for Christianity. The proclamation of the gospels, he said, "did not at any point involve an alienation of the pre-Columbus cultures, nor was it the imposition of a foreign culture".

Mr Chávez, who has a fraught relationship with his country's Catholic hierarchy, went on television to protest at the Pope's remarks, saying: "There was a real genocide here and, if we were to deny it, we would be denying our very selves." The episode was reminiscent of the row ignited last year by Pope Benedict's references to Islam. And it appeared to indicate a surprising degree of insensitivity or indifference on the part of the Pope and his advisers to the views of others.

Latin America also lies at the root of the challenge facing Benedict in Europe. According to the Catholic news agency Adista, more than 100 German theologians have signed an appeal for an overhaul of the Vatican department that oversees their work.

Adista said the signatories included several contemporaries of Pope Benedict, who himself taught theology in his native Germany. As Cardinal Joseph Ratzinger, he was head of the department, known as the Congregation for the Doctrine of the Faith, so the document represents a direct attack on the Pope's work.

It was originally written as an article by Peter Hünermann, a retired professor of the University of Tübingen, following a reprimand handed out by the Congregation this year to a Spanish Jesuit. Father Jon Sobrino, a liberation theologian who teaches at a university in El Salvador, was told his writings were "not in conformity with the doctrine of the church".

But the Vatican's verdict has since been challenged by leading European theologians who said it betrayed a "disregard of the theological developments of the last 50 years".

Professor Hünermann said the Congregation for the Doctrine of the Faith was still organised in much the same way as when it was known as the Holy Inquisition, as a body for exercising censorship. He said there were "deficiencies" in the staff and that "intelligent restructuring" was needed.