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, April 20, 2010

"Disestablishing the Family"

I have not yet read this paper, but I plan to:

Disestablishing the Family

Alice Ristroph
Seton Hall University - School of Law

Melissa E. Murray
University of California, Berkeley - School of Law

Abstract:
This Essay explores what it would mean to disestablish the family. It examines a particular theory of religious disestablishment, one that emphasizes institutional pluralism and the importance of competing sources of authority, and argues that this model of church-state relationships has much to teach us about family-state relationships.  Though substantial rights to what might be called "free exercise of the family" have been recognized in American constitutional doctrine, at present there is no parallel principle of familial disestablishment. The state is free to regulate families qua families, and to encourage or discourage certain kinds of familial relationships. This Essay suggests reasons to rethink these existing familial establishments. Disestablishment is a risky and unpredictable enterprise, but its risks may be the risks inherent in liberty.

Catholic charter schools?

A few days ago, Paul Moses blogged about the recently announced decision by the Archdiocese of Indianapolis to convert some Catholic schools into (public) charter schools . . . and to run those schools through "a corporation that it controls."

I realize that many well meaning people have a different view, but -- in my opinion -- this is a bad development.  Catholic education is a treasure, and it is (to put it mildly) in crisis.  This move by the Archdiocese of Indianapolis is not an effective response.  There are exciting things happening -- glimmers of hope -- in Catholic education; moves like this are set-backs, I think. 

Now, I do not think that the Constitution, well understood, prevents the Archdiocese prevents it from doing what it is doing.  If it is willing to run no-religion schools, then the Constitution does not forbid them from doing so.  But . . . why would the Archdiocese, given all the givens, what to run no-religion schools?

More on "pluralism" and its importance, and on Hertzberg

Michael re-posted, here, Eduardo's comments on Hendrik Hertzberg's New Yorker piece, "Indulgence".  According to Hertzberg,

The iniquities now roiling the Catholic Church are more shocking than the ones that so outraged Martin Luther. But the broader society in which the Church is embedded has grown incomparably freer. To the extent that the Church manages to purge itself of its shame—its sins, its crimes—it will owe a debt of gratitude to the lawyers, the journalists, and, above all, the victims and families who have had the courage to persevere, against formidable resistance, in holding it to account. Without their efforts, the suffering of tens of thousands of children would still be a secret. Our largely democratic, secularist, liberal, pluralist modern world, against which the Church has so often set its face, turns out to be its best teacher—and the savior, you might say, of its most vulnerable, most trusting communicants.

More on this quote, below.  And, let's put aside doubts we might have about the care with which Hertzberg describes the theology that informs the (still very much alive) use, now or in Luther's day, of indulgences.  He notes that "like nearly every one of the controversies that preoccupy and bedevil the Church—abortion, stem-cell research, contraception, celibacy, marriage and divorce and affectional orientation—it’s about sex."  Hmmm.   From the Church's perspective, anyway, "abortion" and "stem-cell research" are not "about sex"; these issues are about the inviolability and dignity of human persons.  Hertzberg seems not to know (or care) what he is talking about.  But, let's continue -- and return back to the indented paragraph above.

What does Hertzberg mean (Eduardo, what do you take him to mean) by "pluralist", and what is it about our modern world that is "pluralist"?  Is it a descriptive term -- "lots of people these days disagree about lots of things, and have lots of different ideas of the good"?  For me, though, true pluralism -- far from being something against which the Church has "set its face" -- is something that the Church has long (with not much help from "liberal", "secular" modernity) defended and instantiated.  The Church *provides* -- by refusing to be part of, or under, or in service to, the secular state -- the pluralism that Hertzberg purports to celebrate.  He might well worry, then, about the possibility -- surely, it is a possibility? -- that some relish the taking down of the Church *precisely* in order to remove the state's troubling competitor (you know, the one what won't just be quiet about abortion)?  Who (as John Courtney Murray asked), in the absence of the "authoritarian" Church, would provide the protection for authentic pluralism that it needs?

Robert George at Cornell, April 23

MOJ readers (or at least, any who happen to be in Ithaca this Friday) might be interested in this talk:

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Jean Porter this Fall at Villanova

Patrick asked us, here, to save the date.

Joseph T. McCullen Symposium on Catholic Social Thought and Law
Symposium on Jean Porter, Ministers of the Law: A Natural Law Theory of Legal Authority (Eerdmans, 2010)

Villanova University School of Law

October 22, 2010

Jean Porter is one of the most acclaimed scholars of natural law of her generation.  The Symposium will surely be outstanding.

Given how controversial the issue is, and the relevance of the issue to to Catholic legal theory, I thought that MOJers would be interested in reading an essay Jean published in Commonweal on February 8, 2002:  "Is the Embryo a Person?  Arguing with the Catholic Traditions".

The article is available here.

Thanks to Eduardo for this ...

... posted at dotCommonweal:

Thank God for Pluralism

Via Andrew Sullivan, Hendrik Hertzberg suggests that the Church may ultimately owe a debt of gratitude to the pluralism of modern society:

The iniquities now roiling the Catholic Church are more shocking than the ones that so outraged Martin Luther. But the broader society in which the Church is embedded has grown incomparably freer. To the extent that the Church manages to purge itself of its shame—its sins, its crimes—it will owe a debt of gratitude to the lawyers, the journalists, and, above all, the victims and families who have had the courage to persevere, against formidable resistance, in holding it to account. Without their efforts, the suffering of tens of thousands of children would still be a secret. Our largely democratic, secularist, liberal, pluralist modern world, against which the Church has so often set its face, turns out to be its best teacher—and the savior, you might say, of its most vulnerable, most trusting communicants.

I think Hertzberg puts his finger on two very interesting feature of this crisis, the embarrassing, knee-jerk resistance of the Church hierarchy to external criticism, and (more importantly, in my view) the vital role of a free, pluralist society in providing a base from which Church members (and former members) can voice their grievances.  Imagine attempting to raise the issue of child sexual abuse by a cleric in a society in which the Catholic Church enjoyed the privileged position it did in some places well into the 20th century.  Such a dominant social role for the Church remained normative for many Catholics until Dignitatis Humanae (and for some schismatics recently readmitted to the Church, it remains normative even today).  To challenge a priest with a charge of sexual abuse, or a bishop for failing to take the charge seriously, in such a community would have meant to risk ostracism and possibly much worse.  I am profoundly thankful that I do not live in such a society, and I think Hertzberg is right that the Church will ultimately recognize itself to be better off as well.

Kung and the Credibility Crisis

I just had a look at the "open letter" by Hans Kung that Michael P. posted for us.  Although I've never been an admirer of Fr. Kung's work, he is plainly an intelligent and learned man.  This piece, however, which presents itself as a bill of indictment against Pope Benedict XVI, shows Kung at his worst---sloppy, tendentious, dishonest, and veering towards the abusive.  (If anyone doubts what I am saying about Kung's dishonesty in the letter, just have a look at his all-but-explicit claim that the Pope has refused to accept "stem cell research."  Kung knows better than that.  He is not ignorant.  He knows that the Pope has embraced and encouraged all forms of stem cell research that do not require the kiling of embryonic human beings.  That is the vast majority of stem cell research that is being conducted across the globe.)  The Church is indeed in a credibility crisis.  And its credibility has been undermined in significant ways by statements and actions of ecclesiastical leaders.  That is a truth that needs to be spoken out loud.  No one who speaks the truth, even hard truths, about the failings of those who lead and govern the Church should be criticized or shunned for speaking it.  Whether they are on the "right" or the "left," when they speak in a spirit of fairness and goodwill, they serve the Church and deserve our gratitude.  But Hans Kung is not helping.  His own credibility is undermined by his sloppiness, tendentiousness, and dishonesty.  I do not have a way of reaching him, but if anybody on our blog is in touch with him, please feel free to pass this post along to him.  If he is interested in a published exchange with a critic on the credibility of his criticisms of the Pope, I would be happy to engage him. He has made serious allegations, many of which I believe to be way out of line. I hope he would be willing to have the validity of his claims tested in an appropriate forum of debate.   

A roundtable on Pope Benedict's fifth anniversary

Here, from the Ignatius Press blog, is a collection of reflections on the Pope's fifth anniversary.  Fr. James Schall's, on the Pope as "scholar", caught my eye:

The three functions traditionally attributed to a pope are to teach, to sanctify, and to rule. The first function means keeping the revelation that was handed to Peter and the apostles intact and known to men. The second concerns the sacramental and prayer side of human life, primarily with the integrity of the Eucharist. The third function is the daunting task of appointing and guiding bishops and other leaders in the Church. The Lord told Peter to strengthen the brethren. Most people recognize that they need it. Many think this latter function is the most crucial and difficult of all.

Popes need to exercise courage in all three areas. The most difficult thing consists in telling the truth in a world, as Pope Ratzinger often says, that is relativist and is no longer willing to hear the truth of things, particularly divine things and increasingly of human things, lest it might affect the way they live. . . .

The present Pope is easily the most learned man in public life in the world today. I have the impression that academia and the media know this as a fact but dance gingerly around it, fascinated yet leery. They “feel” in their bones, however, that he cannot really know anything important. . . .

Monday, April 19, 2010

More on Oklahoma City

My wife, Maria, was asked by U.S. Catholic today to guest blog her reflections on the 15th anniversary of the Oklahoma City bombing.  Comments and memories are open and invited  on that blog. 

Institute for Policy Research & Catholic Studies & U.S. Conference of Catholic Bishops

The Ethics of the Obama Administration’s Nuclear Weapons Policy:  Catholic Perspectives

The Catholic Church has long offered a prominent voice on the ethics of U.S. nuclear weapons policy, calling for: deep reductions in nuclear arsenals, moving toward a world free of nuclear weapons; no use of nuclear weapons and a no first use policy; a comprehensive test ban treaty; challenging the morality of nuclear deterrence policy; and demilitarizing U.S. foreign policy and developing greater institutional capacities in peace building.  How does the Catholic Church assess the moral dimensions of the new nuclear weapons policies set by the Obama Administration in the spring of 2010?

Panelists:

Archbishop Edwin Frederick O’Brien, Former Head Head of the Archdiocese for the Military Services, USA

Dr. Rose Gottemoeller, Asst. Secretary of State for Verification, Compliance & Implementation

Dr. Maryann Cusimano Love, IPR Fellow, Associate Prof. Dept. of Politics & Fellow, US Commission on International Religious Freedom

Gen. William Burns, Prof. at the Army War College in Carlisle, PA, former US arms negotiator and leader in the Global Zero movement

Dr. William Barbieri, IPR Fellow & Associate Prof., School of Theology & Religious Studies and former Director, CUA Pax Christi

Monday, April 26, 2010,4:00- 6:00 p.m

Catholic University of America

106 McGivney Hall

All Are Welcome