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.

Monday, June 8, 2009

Recommended Reading

Conscience and Citizenship: The Primacy of Conscience for Catholics in Public Life"


Journal of Catholic Social Thought, Vol. 6, No. 2, Summer 2009
Boston College Law School Legal Studies Research Paper No. 178

GREGORY A. KALSCHEUR, Boston College - Law School
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In their statement, Forming Consciences for Faithful Citizenship, the U.S. Catholic bishops acknowledge that ?the responsibility to make choices in political life rests with each individual in the light of a properly formed conscience.? This essay argues that, in light of this responsibility, it is important to affirm a commitment to the primacy of conscience as that idea has been understood in the Catholic tradition. If we really expect voters and public officials to make responsible, conscientious decisions about matters of public policy, we should not speak in ways that suggest that the proper formation of conscience is simply a matter of falling in line with church teaching. Such an approach will not contribute to the ability of voters and public official to make conscientious decisions, because church teaching does not generally speak definitively to the concrete questions that voters and public officials face.

The essay articulates an understanding of the primacy of conscience that is rooted in a proper understanding what conscience is and of the relationship between conscience and truth. To be a human person is to have a duty to seek the truth in order that one can form for oneself right and true judgments of conscience. As one seeks the truth, one is bound to adhere to the truth as it is known, and one is bound to order one?s life in accord with the demands of truth. In all our activities we are bound to follow our conscience. This is what it means to speak of the primacy of conscience. The essay also discusses the demands of proper conscience formation, which exclude a mistaken notion of the autonomy of conscience. We each have to commit ourselves to forming for ourselves right and true judgments of conscience, but we cannot form our consciences by ourselves. Proper formation of conscience must be attentive to the teaching of the church and the insights of human reason. It must also be guided by the balancing virtue of prudence, which is appropriately attentive to the limits of what it might be possible for good law to accomplish under existing social, political, and constitutional conditions. In the midst of often deep moral disagreement in our society, respect for the primacy of conscience calls us to engage in the respectful dialogue that is essential if we are to join together with our fellow citizens in an authentic search for truth, forming hearts and minds committed to making choices that will protect human dignity and promote the common good.

Matthew 25:34-40

Sightings 6/8/09

I Was In Prison, But...
-- Martin E. Marty

Sightings files bulge with clippings and printouts having to do with religion and prisons.  Every year I “do” one of the sixty synod assemblies of our cosa nostra, the Evangelical Lutheran Church in America.  This year it was the Southwest California synod.  Months ago they told me I was to keynote the meeting on the theme, “I Was In Prison, But…”  They knew of my interest in and I knew of my non-expertise on the subject, so I scrambled to read up as if to catch up.  I am writing a book on Dietrich Bonhoeffer’s prison letters, and hang out with colleague Clark Gilpin who is writing on prison letters written centuries ago.  Such histories provide background, but we need foreground now.  I am not sure that Elizabethan and Nazi prisons were more soul-damaging than those portrayed and described to me by California Christians.  No, this is not a suggestion of societal “equivalency,” only that damage to the soul of prisoners anywhere is equivalent to soul-damage anywhere.
   
The end of that paragraph may suggest that I am somewhat sentimental and soft about all the people in prison.  Spend a few minutes with chaplains, pastors, lay volunteers, and workers for justice, as I did with the people on the scene at the Synod Assembly, and you will hear stories of people who do evil, evil things.  But what you do hear from them is testimony that most prison life in America is “retributive” and not “restorative” for the literally millions in prison, many of them there so we can hide them or hide from them, and where we turn them over to fellow-prisoners and their gangs to teach kids (juvenile offenders) how to train for a life of violent crime.
   
The May 19th Christian Century has a review by Tobias Winright of James Samuel Logan’s Good Punishment? Christian Moral Practice and U. S. Imprisonment, which Winright and other reviewers evidently regard as the best of the current batch, the batch being books by Christians and other witnesses on the prison scene.  Winright: “Why is it, for example, that the U.S., which has 6 percent of the world’s population, incarcerates 25 percent of the worlds’ prisoners?  We currently have some 3.2 million persons in…prisons.   We spend more money building and maintaining prisons than public schools—to the tune of $50 billion a year… No other democratic nation today imprisons people on such a scale or for as long as the U.S.  Yet what are we accomplishing?”  Logan’s testimony:  We accomplish little positive.
   
The literature, religious or not, on the failings of the system and the guilty participation in its expansion on the part of eyes-averting citizens is vast, and this is not the place to try to review it.  Churches are not entirely asleep.  The internet will bring you—as it did, in recent months, desperate-to-learn me—rich evidences of ingenuity and zeal by congregations, synods, denominations, and agencies.  Some months ago I made a pit stop at Friend-to-Friend, a program of Lutheran Metropolitan Ministry in Cleveland, and heard good news of similar programs from Lutherans at the Assembly in California—a state whose statistics and stories make it a candidate for “worst.”
   
The Assembly theme reminded me and colleagues there of the need to take a different look at justice and mercy than does society at large.  Working for justice and visiting the prisoners are central to their devotion to the Jesus of the gospels, who said that in visiting prisoners they were visiting him.  He’s quite lonely.  The tens of thousands of congregations, whose programs address this, dispel some of that terror of loneliness.

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Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

The Future of the Catholic Church in America

Reflecting on Fr. Cozzen's NCR article "The Church will submerge before any emergence, Cathy Kaveny, in a dotCommonweal post titled "A Generation or Two of Real Darkness" asks: "Are we basically headed toward a situation in which liberals and moderates drop out, and conservatives are left with an increasingly smaller leaner, and meaner church?"

I would say "yes," we are in for a generation or two of real darkness if we continue to view the Church in political terms as comprised of liberal, moderate, and conservative members.  If I am a liberal, the conservative becomes an "other" with whom I must contend.  And, if I am a conservative, the liberal becomes an "other" with whom I must contend.  Lost in all this is our primary call, which is, as I see it, to fall in love more and more each day with God who is Love and, as we read yesterday's in Gospel, to spread this message of love to all the nations.

Yes, we have real issues to be worked through painfully, and I don't desire to sweep those issues under the rug.  But, as we fight I pray that we remember that "we are one in the Spirit, we are one in the Lord, and I pray that all unity will one day be restored." 

Sunday, June 7, 2009

The Future of the Catholic Church in America?

Here's a grim view--by someone who should know.  (Fr. Cozzens' view resonates powerfully with me.)  And here are some interesting comments at dotCommonweal.

Saturday, June 6, 2009

Obama in Cairo

My esteemed colleague at Emory Law, and at Emory's Center for the Study of Law and Religion, Abdullahi Ahmed An-Na'im, had this to say in The Guardian (U.K.) yesterday:

Muslims Have to Change for Themselves

Whatever one might have been hoping for from the speech of President Obama to the Muslim World, it's clear that any change will have to come from within the region and on its own terms. For now, the words, and more importantly the actions, of an American president are critically important for that internal initiative to emerge and succeed.

To me, as a Muslim from Sudan, this dependency on external actors is part of the problem, signifying a neocolonial state of mind among Muslims, thereby perpetuating ourselves as the subjects of empire, rather than self-determining persons and communities. I wish this was not the case, but since it is, we have to start somewhere, and Obama's speech can be a good start.

What Obama said in Cairo was the best I could have hoped for, in view of his political limitations at home and abroad. He was positive and empathetic about Islam and Muslims, and wise to avoid giving any reasonable cause for suspicions of "cultural imperialism". Unreasonable voices, like that of Ayatollah Khamenei, the supreme leader of Iran, have already tried to undermine the prospects of a positive outcome of Obama's message. But I expect that most Muslims will probably welcome that message, though many of them would want to wait for deeds. The limited but important question I am raising here is: what difference can the words and actions of an American president make for whatever objective or outcome?

Obama's primary concern, understandably, is improving the relationship of the United States with the Muslim world. But that goal cannot be achieved in isolation of how Muslims behave among and for themselves. As the Qur'an affirms, nothing changes for a people until they are changed in themselves. This renders Obama's limited objective contingent on much more substantial and sustained change within Muslims and among their communities.

Obama started by thanking his two hosts in Cairo, al-Azhar University and Cairo University, noting the significance of this as representing partnership of tradition and modernity. As I see it, the core of the problem is what it takes to reconcile these two dimensions in the lives of Muslims, for themselves and not in response to the needs of western interests.

There are many aspects to this process, but Islam is probably integral to a lot of them. The reconciliation of tradition and modernity requires a paradigm shift in the nature and relevance of Sharia (Islamic law). The challenge is personal and psychological for every Muslim, as well as political and social for societies at large. An American president can help to the extent he can change the imperial posture of the United States, and challenge its client regimes in Egypt, Saudi Arabia and elsewhere to ensure freedom of internal debate and change. Improvement in Muslim-American relations or any other objective is untenable while American imperialism continues, but imperialism ends in the minds and hearts of its subjects, not the vision and charisma of western leaders, though that can help.


A New Kind of Catholic Democrat?

The Tablet
June 6, 2009

A Catholic word in your ear, Mr President

Michael Sean Winters

A new kind of Catholic Democrat is emerging in America’s corridors of power – young, politically committed and often with the same community organising background as the President himself. So who are these new church advocates with a direct line to Obama? Free


Friday, June 5, 2009

Jesus Interrupted

I'm not a biblical scholar, but I'm fascinated by debates between biblical scholars.  Bart Ehrman, Wheaton College grad turned agnostic, has been attracting a lot of attention (and readers) with his book, Jesus Interrupted.  New Testament scholar Ben Witherington responds to the book's claims here.

Thursday, June 4, 2009

The Foundations of (Women's) Religious Life

If you're interested in the topic of women religious that was the subject of a recent flurry of posts, here's an interesting-looking book.  It's called The Foundations of Religious Life:  Revisiting the Vision, and consist of a collection of articles by representatives of the Council of Major Superiors of Women Religious.  It includes contributions from members of the Sisters of Life in New York City, the Franciscan Sisters of the Eucharist, the Nashville Dominican Community of St. Cecilia, the Religious Sisters of Mercy, and the Sisters of St. Francis of the Martyr St. George.  Here are some excerpts from the book blurb:

While many religious orders are currently facing marked decline in novitiates and the aging of their members, the communities of the CMSWR are experiencing growth on a worldwide scale.

In this collection of foundational articles, the CMSWR articulates how its perspective is in keeping with the vision set forth by Vatican II, suggesting that its commitment to a more visibly countercultural life and ministry is what sustains its orders and attracts young women to the CMSWR communities.

Here's a review of this book from the Denver Catholic Register.  One of the contributors is Sr. Prudence Allen, who has written the remarkable two-volume set on The Concept of Woman that has profoundly influenced my thoughts on Catholic feminism.   

Lawyers and Vacations

      Check out this brief ABA Journal piece, “Vacation or Not, Lawyers Should Be Available via E-mail, Cleary Partner Says.”  “An ‘out of office’ auto-reply saying that an attorney is unavailable is acceptable only in rare circumstances, such as when a lawyer is on an international flight in a different time zone and a colleague, for some reason, is unable to cover...”  This is followed by a survey with three possible responses to the question of whether lawyers should be reachable by email while on vacation: 1) I can always be reached; 2) I’ll check a couple times a day; 3) no, cutting myself off from work is the whole point.

    What strikes me about the clip and the survey is that there is zero attention to context: the attorney’s level of responsibility, the type of cases one is working on and the extent to which they are time sensitive (eg, contrast work on a preliminary injunction with work on fairly slow-paced and predictable appellate briefs or document review); not to mention the particularities of one’s family situation.  Absent context, it’s very difficult to tell whether this sense of 24/7 availability has anything to do with client service at all.

     My first summer in practice at a large firm I stupidly giving up the chance to be present at a three-day retreat which had always been important to me because I assumed that as the most junior on the totem pole I should make myself available to “cover” the case while a large chunk team was out in August.  Later I realized that I was responding not to realistic client needs (the litigation was fairly slow paced), but my own fears about firm expectations, which in that case were ungrounded.  I probably should have been reading a little more Laborem Exercens or Dies Domini for a better sense of perspective. 

Wednesday, June 3, 2009

The United States of New England (plus Iowa)

[Lest MOJ readers misunderstand this post, let me be clear:  I support the recognition, by state legislatures, of same-sex marriage.]

NYT
June 4, 2009

New Hampshire Legalizes Same-Sex Marriage

BOSTON — The New Hampshire Legislature approved revisions to a same-sex marriage bill on Wednesday and Gov. John Lynch promptly signed the legislation, making the state the sixth in the nation to let gay couples wed.

The bill had been through several permutations in an effort to satisfy Mr. Lynch and certain legislators that it would not force religious groups that oppose gay marriage to participate in ceremonies celebrating it.

Mr. Lynch, who previously supported civil unions but not marriage for gay couples, said in a statement that he had heard “compelling arguments that a separate system is not an equal system.”

“Today,” he said, “we are standing up for the liberties of same-sex couples by making clear that they will receive the same rights, responsibilities — and respect — under New Hampshire law.”

The law will take effect on Jan. 1.

UPDATE:  As of today, five states recognize same-sex marriage:  Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont; two states recognize same-sex unions (i.e., civil unions for same-sex couples):  California and New Jersey; and five more jurisdictions have enacted domestic partnerships laws that grant many or all of the benefits of marriage to registered domestic partners:  Hawaii, Maine, Oregon, Washington State, and the District of Columbia.

During the ten-year period from 1998 to 2008, voters in twenty-nine states approved state constitutional bans on same-sex "marriage".  However, some of these bans are limited:  They do not forbid states to extend the benefit of law to same-sex unions; they forbid only calling such unions "marriage".  See "States With Voter-Approved Constitutional Bans on Same-Sex Marriage, 1998-2008," http://pewforum.org/docs/?DocID=370.

As of now, seven countries--the Netherlands (since 2000), Belgium (2003), Spain (2005), Canada (2005), South Africa (2006), Norway (2009), and Sweden (2009)--recognize same-sex marriage.

According to a 2007 Pew Research Center survey, a bare majority Americans (55%) opposes, and a significant minority (36%) supports, recognizing same-sex marriage.  However, a bare majority of Americans (54%) supports, and a large minority (42%) opposes, civil unions for same-sex couples, according to a 2006 Pew survey.