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.

Wednesday, June 20, 2007

Who is Welcome at the Table?

Much debate has addressed the use of the Eucharist as a stick to put pressure on politicians. There are even deeper questions. The Episcopal Church asks: “What is required of us when we come to the Eucharist?”
Its answer: “It is required that we should examine our lives, repent of our sins, and be in love and charity with all people.” http://www.episcopalchurch.org/visitors_11764_ENG_HTM.htm Jesus went further. At the Last Supper Judas received the Eucharist. In practice, my understanding is that all are welcome at the table in Episcopal churches. Is the regulatory approach of the Roman Catholic Church more consistent with scripture? Has the regulatory approach served pastoral needs better?

Same Sex Relations and the Church

The current issue of Commonweal has an excellent exchange between Luke Timothy Johnson and Eve Tushnet on same sex relations. Johnson argues that slave owners had the better scriptural argument over the morality of slavery, but we now understand them to be morally wrong. He thinks that those who believe same sex relations are sinful have the better scriptural argument, but that the scripture should be rejected in favor of our experience and the continuing creative work of the living God. Eve Tushnet points to centuries of tradition and to the limitations of contemporary experience. She, a lesbian, eloquently argues that many have crosses to bear and that celibacy for her is a cross and a blessing.

 I do not agree that the condemnation of homosexuality in scripture takes into account what we now know about sexual orientation. I think it condemns certain forms of casual or exploitative sex. So I disagree with part of what Johnson says. I am much taken with the view of Tushnet for herself, but I do not think God demands celibacy of gays and lesbians in general. Jesus, of course, did not speak to the issue.

I am, of course, aware that the Vatican teaches otherwise. I do not agree with positions the Vatican has taken on many issues involving sexuality, women, and marriage.

I should say once again that when I think of the Church, I do not think of the Vatican. I think of Jesus, the Communion of Saints, the People of God. I pray for the Pope and the Bishops (for the difficulty of their task and in particular that they will be better servants of a pilgrim church, as we all do), but I also pray on many issues that the Church will not be lead by them.

 

 

Bishop Tobin and Barry Linn

Father Araujo’s brief comments on Barry Linn and Bishop Tobin could be fleshed out wholly apart from the merits (or not) of Bishop Tobin's position. Bishop Tobin criticized Giuliani’s view that abortion should not be illegal in a diocesan newspaper and said that he would never support a candidate who took that position.  http://www.au.org/site/News2?abbr=pr&page=NewsArticle&id=9193&security=1002&news_iv_ctrl=1241. The diocese is a 501 c3 organization. Under federal law, such organizations can neither support nor oppose candidates for public office. Father Araujo says that the Bishop acted properly and that his speech was an exercise of his religious liberty. I am not clear whether Father Araujo thought the Bishop’s action was in harmony with federal law. If so, I just disagree. The more interesting question is whether the federal law is itself constitutional. If it is unconstitutional, is it unconstitutional because it violates free speech (on that theory it would be unconstitutional as applied to non-religious organizations), freedom of religion, or both? 

 As I recall, Rick Garnett has taken the position that the restrictions of 501 c3 violate free speech and I tend to agree, but it is not obvious that government must subsidize those charities that engage in partisan politics if it is to subsidize charities at all. Moreover, it is possible to create separate organizations under the tax code in a manner that makes the restriction have little bite. Nonetheless, I think the spectre of government bribing leaders of religious organizations to stay out of politics (the effect of 501c3) even when their conscience dictates otherwise is quite problematic. 

Tuesday, June 19, 2007

The Road to Holiness

I realize that traffic accidents are a serious problem around the world, and that the Gospel has implications for every dimension of the common good.  Still, when I saw a Vatican document on traffic safety with a section heading "Christ is the Way, He is the Road," I thought it was from The Onion.  Then I saw it referenced at multiple blogs, so I decided to check it out.  Seems to be real.  Here is an excerpt from the Vatican's Guidelines for the Pastoral Care of the Road

From Christian commitment in places of road and rail transport, which we call Pastoral Care of the Road, also arises the duty to draw up and promote a fitting and corresponding expression of “spirituality”, rooted in the Word of God. Such spirituality sheds the necessary light to give meaning to the whole of life, stemming precisely from the experience of road and rail transport. The contemporary phenomenon of mobility should be experienced by Christians, by exercising the theological and cardinal virtues. For the faithful, the road also becomes a path to holiness.

Perhaps sprawl isn't so bad after all . . .

"What America Owes its Illegals"

Some might be surprised that I'm posting, and agreeing with, a Barbara Ehrenreich piece in The Nation but . . . this short piece is worth reading, I think.

The "immigration issue" is (warning:  hopelessly unhelpful bromide approaching) difficult, and complicated; reasonable people of good will can, do, and will disagree about immigration policy.  One is not a racist or nativist simply because one worries about border security or cultural assimilation; one is not a corporate tool or a multi-culti-world-citizen simply because one thinks that America is enriched (culturally and otherwise) by immigration.  With that out of the way, this bit from the Ehrenreich piece grabbed me:

All right, they committed a "crime"--the international equivalent of breaking and entry. But breaking and entry is usually a prelude to a much worse crime, like robbery or rape. What have the immigrants been doing once they get into the US? Taking up time on the elliptical trainers in our health clubs? Getting ahead of us on the wait-lists for elite private nursery schools?

In case you don't know what immigrants do in this country, the Latinos have a word for it--trabajo. They've been mowing the lawns, cleaning the offices, hammering the nails and picking the tomatoes, not to mention all that dish-washing, diaper-changing, meat-packing and poultry-plucking.

The punitive rage directed at illegal immigrants grows out of a larger blindness to the manual labor that makes our lives possible: The touching belief, in the class occupied by Rush Limbaugh among many others, that offices clean themselves at night and salad greens spring straight from the soil onto one's plate.

No more public schools?

In the Los Angeles Times, conservative commentator Jonah Goldberg has this op-ed, in which he argues that "[g]overnment is inept at running schools.  It should subsidize education for needy students, then get out of the way."  (A few weeks ago, in The Weekly Standard, David Gelernter had pressed a similar argument.)  Putting aside the partisan barbs, is there any reason not to agree with him when he writes:

Milton Friedman noted long ago that the government is bad at providing services — that's why he wanted public schools to be called "government schools" — but that it's good at writing checks. So why not cut checks to people so they can send their kids to school?

What about the good public schools? Well, the reason good public schools are good has nothing to do with government's special expertise and everything to do with the fact that parents care enough to ensure their kids get a good education. That wouldn't change if the government got out of the school business. What would change is that fewer kids would get left behind.

The "best love of the child"

My colleague, Peg Brinig, has posted a new family-law paper on SSRN, called "Best Love of the Child."  Here is the abstract:

This paper examines the creation of the ability to give unconditional love (perhaps in tune with the theologians' definition of “best love”) and to discuss how laws might make this easier for children. Given my past work, it is perhaps not surprising that I see this as requiring permanence in the relationship. I hypothesize that children acquire this tendency (or longing, as Aristotle and Jennifer Roback-Morse would term it) as they see it around them. The most likely three relationships from which children can draw models of unconditional love are God's love, the parents' love for each other, and the parents' love for the child.

God's love is of course the model for all human unconditional love. We might see parents' response to it in frequency of church attendance or how important they say religion is in their lives. The ability of law (at least in the United States) to influence belief and the exercise of it is of course a delicate constitutional question. The law can certainly continue to not discriminate against religion and to allow such benefits as charitable tax deductions for religious contributions and tax exemptions for religious properties. Tuition vouchers are a help, too. But the controversy in Massachusetts surrounding Catholic Charities' adoption policies show how fragile this balance has become.

The parents' love for each other also can serve as a model for children. Other research, including my own, shows that unconditional love is most likely to flourish in marriage as opposed to cohabitation. It is also most evident in what Judith Wallerstein calls “The Good Marriage,” whose opposite is the “Separate Spheres” (or marriage reduced to its lowest common denominator) discussed by Lundberg and Pollock or the “exchange relationship” detailed in Gary Hanson's “Marital Exchange Relationship” piece in psychology. This love is threatened by any attempt to equate marriage and cohabitation (as with current Canadian law and the American Law Institute's Domestic Partnership proposals). It is strengthened by legal efforts to make marriages stronger, whether these are through requirements for premarital counseling or through tax and other subsidies based upon marital status (listed in, for example, the Vermont same-sex marriage case of Baker v. Vermont) and perhaps by laws that force couples to carefully think through the decision to divorce. From a nonlegal perspective, marriage is strengthened by increased support from extended family and the community, secular and religious.

The parents' love for him or her is perhaps the first unconditional love noticed by a child. We can see it in what the parent says about the child, what kinds of activities he or she does with the child, and how close the child feels to the parent, perhaps whether the child feels the parent stands up for him or her or acts as an advocate. From an absent parent, we can still get some glimpse of this love through continued contact, attendance at the child's activities, and even faithful payment of child support. From a negative perspective, we see the absence of unconditional love in parents who say they are disappointed with their child, who neglect their child (when they have the means of support), perhaps when they engage in custody battles and certainly when they abuse the child. Law can strengthen parental relationships with children. On the extreme, children in foster care are unlikely to see this love, and efforts should be made to either strengthen the family of origin or place the child in a permanent adoptive or kincare situation. Child abuse is criminal and serious, and should be taken seriously by the law and prevented where possible (including abuse by non-parent adults living in the home). For another example (of many), custody laws can be carefully drafted to minimize incentives for vindictive behavior and to promote relationships with noncustodial parents. We can continue to promote family autonomy so that parents in less stressed families can effectively allow their children to flourish.

This paper tests these ideas to the extent possible, finding that characteristics favorable to unconditional loving as adults are present in environments consistent with each of these models. I conclude with a number of policy recommendations to strength families and make them more permanent.

Leon Kass at St. John's

A friend and former student sent me the link to this commencement address, by Leon Kass, delivered at St. John's College.  It's wonderful.  Here's a bit:

The greatest moral challenges headed our way do not in fact come from hate-filled fanatics threatening death and destruction. They come rather from well meaning scientists and technologists offering life, pleasure, and enhancement. They are the by-products of modernity’s noble and humanitarian quest to conquer nature for the relief of man’s estate. They are, in a word, the challenges of bioethics, challenges to our humanity arising from burgeoning new technological powers to intervene in the bodies and minds of human beings.

More from Minneapolis

One highlight from last week's Conference on Catholic Legal Thought was the conversation about Bill Cavanaugh's Theopolitical Imagination.  There were some productive points of tension and clarity, particularly between Cavanaugh's Augustinian and Patrick Brennan's Thomistic leanings, with some healthy skepticism from Cavanaugh toward the political work of John Courtney Murray, and a robust defense of Murray by Brennan and others, including Villanova's Michael Moreland.  One refrain shared by everyone was the woeful state of Catholic political theory.  Cavanaugh views the state as a product of our imagination, which was not a popular opinion in this group.  Echoing Augustine, he believes that the state is temporarily necessary for the restraint of vice, unlike Thomas, who believed that the state is part of the natural order.  One realization for me is that I need to read de Lubac, who looms large in Cavanaugh's political theory.  Hopefully this conversation will continue to unfold, and will be joined by more Catholic legal scholars, over the coming years.

UPDATE: If the state is part of the natural order, does that mean that a post-state world is contrary to the natural order, or does "the state" in Thomas's writing simply signify the temporal authority, a role that could be filled by an international organization or global authority?  Consider this reflection from Brian Tamanaha:

Whether in the name of some ideology, or some image of national purity or dominance, or in the name of religion, or simply to plunder, states have time and again massacred their own people, or conscripted their own people and flung them at others to kill and be killed. The number of human lives extinguished by states, and in the name of states, well exceeds a hundred million.

Learn this history and you will see the price patriotism exacts. For many reasons, I feel fortunate to have been born in the United States, but I don’t love my country. It has no love for any of us. A cold, manipulative, object of affection, the state fans patriotism, then asks those who love it deeply to prove their love by dying or sacrificing their limbs for it.

It will not happen in my lifetime, but I look forward to the day when states are no more. As difficult as it is to imagine what a political future without states might look like, the state system is a relatively recent innovation in human history and there is no reason to think we will be burdened with states forever.

Is such a wish inherently contrary to a Catholic view of the world?

Sunday, June 17, 2007

Minneapolis meeting of the Conference on Catholic Legal Thought

I'm happy to report that the second meeting of the Conference on Catholic Legal Thought, which we hosted here at the University of St. Thomas this year, was a thoroughly successful follow-up to last year's organizational get-together at Fordham.  The model that we generated at Fordham seems to have worked very well.  The deliberately interactive sessions generated wide-ranging, broad discussions among all the participants, during which we were able to expore multiple dimensions of each issue -- from the theoretical frameworks of the ideas, to the practical challenges of implementing the theories in our teaching and scholarship, to the pastoral challenges of modeling Christianity while engaging the culture. 

We began with a day of introduction to Catholic social thought through the lens of economic life, led by the economist/theologian Daniel Finn from St. John's University in Collegeville, MN.  (Just before joining our conference, Finn had been presiding over the meeting of the Catholic Theological Society of America, as outgoing President.  John Allen's current column describes Finn's Presidential Address there last Sunday as one of the most impressive talks he's ever heard, explaining:  "When I say "impressive," I mean not just intellectually provocative or rhetorically satisfying, though Finn's address was both, but also brave and potentially transformative -- not only for the CTSA, but for American Catholicism.")

We then continued with two days of roundtables, panels, workshops featuring, among many other wonderful contibutors, theologians Paul Wojda and Bill Cavenaugh, medical doctor Sr. Marie Paul Lockerd, and MOJer's Amy Uelmen, Patrick Brennan, and Michael Scaperlanda.  One of our guests was the sociologist Sr. Edith Bogue of the College of St. Scholastica in Duluth.  She has posted a discussion of the conference (with pictures!) on her blog, Monastic Musings (scroll down -- you'll recognize the people in the pictures.)  MOJer Susan Stabile graced us with an extraordinary Ignatian prayer excercise, and Fr. Reggie Whitt (who will be rejoining us at UST in a few weeks after 4 years as President of the Dominican House of Studies in D.C.) and Fr. Greg Kalscheur (Boston College) celebrated Masses for us.

And, of course, there was some time for the other goal of this group -- community building. We had a fun (if rather boisterous by the end) dinner together at an Italian restaurant downtown, and a much more mellow outing to the Loome Theological Bookstore in Stillwater  (where everyone found at least one book they were looking for or didn't know they needed, but where, we all agree, Patrick Brennan won the prize for buying the most), followed by dinner on the outdoor patio of a bar on the banks of the St. Croix River, on a picture-perfect beautiful summer evening.

Next year, we'll be meeting at Seattle University School of Law.  Our introductory day is going to grapple in some way with how we deal with issues of authority in incorporating Church teachings in our work.  We'll be putting together segments on legal theory, the pastoral implications of teaching as a Catholic law professor, developing a "scholarly persona" as a Catholic, and workshopping Rob Vischer's current book project on conscience.  Although it has been a true joy to work on pulling together this year's meeting, I'm happy to hand over the reins to Russ Powell.  I am already looking forward to what I will learn from this extraordinary group of scholars and friends next year!  Expect to start hearing from Russ as the year goes on.

Lisa