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, August 11, 2010

Religion Without Spirituality

By Steve Shiffrin

It has long occurred to me that the doctrines of heaven and hell can undermine spirituality. If one lives a life primarily to avoid hell and to gain access to heaven, one is in danger of leading an individualistic, instrumentalist and egoistic life. I can recall, however, the late Father Robert Smith arguing to me that the notion of heaven was not consumerist in any way. Properly understood, the desire for heaven was a desire to be close to God. The goal is to live a life trying to be close to God, and it is natural to hope that an afterlife deepens that connection. So understood, the religious and spiritual fuse.

cross-posted at religiousleftlaw.com

Tuesday, August 10, 2010

Cardinal O'Brien on US's 'Culture of Vengeance'

By Steve Shiffrin

My guess is that many MoJ readers will find food for thought in the trenchant observations made this past weekend by Cardinal O'Brien of Edinburgh.  I'm not well acquainted with the Cardinal, but certainly experience considerable sympathy with the claim that the US is included among 'invidious company' where its penal regime is concerned. 

Cardinal O'Brien's observations are reported here: http://www.bbc.co.uk/news/uk-scotland-10905562

Ex Corde, Catholic identity, universities, etc.

By Rick Garnett

At his new-ish "Distinctly Catholic" blog, Michael Sean Winters is collecting and posting a series of interviews and posts on Ex Corde Ecclesiae.  In this one, Michael writes, with respect to the debate about the University of Notre Dame's decision to confer an honorary degree on President Obama:

 First of all, Obama is not a Catholic, and different rules can and should apply to how we consider the honoring of Catholics and non-Catholics. I do not hold him accountable for understanding Catholic Social Teaching. Secondly, there are many politicians who may or may not be morally opposed to abortion but think that the coercive power of law is not the appropriate tool for preventing the incidence of abortion. This position can easily go too far as well, falling into the lame “I am personally opposed, but…” position held by many pro-choice Democrats. Nonetheless, as Bishop Tobin demonstrated so convincingly on “Hardball,” deciding how to determine what civil penalties to attach to abortion is not such an easy task. . . .

My own views on the Obama-degree dust-up are familiar (if not yet tiresome) to regular MOJ readers.  And, to be clear, there are other things in Winters's post with which I agree entirely.  But, with respect to this paragraph, two quick thoughts:  First, and in response to his "secondly", he is right that there are such politicians, but I do not think that President Obama is one of them.  He really believes, I think, that the right to abortion is fundamental, legally and morally.  But, let's put this point aside, for the moment.  With respect to the "first" point:  I don't see why it should matter, when thinking about the decision by Notre Dame to give President Obama an honorary degree, whether or not the President is Catholic.  The question, as I see it, is whether the conferring of an honorary degree on X by a Catholic university "says" something about what that university deems honorable that a Catholic university ought not to say.  As I put it elsewhere:

The question on the table is not whether Notre Dame should hear from the president but whether Notre Dame should honor the president. A Catholic university can and should engage all comers, but in order to be true to itself — to have integrity — it should hesitate before honoring those who use their talents or power to bring about grave injustice. The university is, and must remain, a bustling marketplace of ideas; at the same time, it also has a voice of its own. We say a lot about who we are and what we stand for through what we love and what we choose to honor. The controversy at Notre Dame is not about what should be said at Catholic universities, but about what should be said by a Catholic university. . . .

Anyway, check in tomorrow at "Distinctly Catholic" for the thoughts of Fr. Robert Imbelli, whose posts at Commonweal's blog are familiar to and appreciated by all of us.

More on Prop 8 Case

By Steve Shiffrin

Mike Dorf has a characteristically illuminating analysis of the decision over at Dorf on Law, as well as (at fuller length) on Findlaw.  The first is located, and the second is accessible, here: http://www.dorfonlaw.org/2010/08/rationality-review.html .

Mike agrees with the outcome, but is troubled by the means used to get there.  

For what my own higly inexpert opinion is worth, I continue to wonder why we do not treat civil union as the apt civil category, and treat marriage solely as the religious category that I've always thought it to be.  In such case it would be hard - for me, at any rate - to see denial of civil union to any couple, of sound mind that has reached the age of consent, as capable of surviving rationality review.  And it would be just as hard - for me, at any rate - to see any justification for state interference with ecclesial organizations' defining their more specific conceptions of the separate category of marriage in what ever manner was consistent with their theologies.  But I've written at some length on this already, so I won't belabor the point here.

Here's a post from last November, complete with amusing video clip from a wonderful film: http://www.dorfonlaw.org/2009/11/tale-of-two-marriages.html .

All best,

Bob  

Monday, August 9, 2010

Public Discourse on two raging controversies

By Robert George

At Public Discourse Matthew Franck has published a penetrating critique of Judge Vaughn Walker's reasoning in the Proposition 8 case:  Here’s a taste:

And now watch carefully, for here [Judge Walker's] fallacious reasoning enters the equation. When “the genders” are no longer “seen as having distinct roles,” it is revealed that at marriage’s “core” there is ample space for same-sex couples too. Since “gender no longer forms an essential part of marriage,” indeed since it never really did, “plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States.” There, you see? There is something eminently conservative about the admission of same-sex couples to the marital bond. What could we have been thinking, denying them this right for all these centuries? Judge Walker seems to have committed the fallacy of composition—taking something true of a part and concluding that it is also true of the whole of which it is a part. If it is true that “gender” no longer matters as it once did in the relation of husband and wife, he reasons, therefore it no longer matters whether the relation is one of husband and wife; it may as well be a relation of husband and husband or of wife and wife, since we now know that marriage is not, at its “core,” a “gendered institution.” But restated in this way, it is quite plain that the judge’s conclusion doesn’t follow from his premises. To say that the status of men and women in marriage is one of equal partners is not to say that men and women are the same, such that it does not matter what sex their partners are. The equalization of status is not the obliteration of difference, as much as Judge Walker would like to pretend it is.

Also at Public Discourse are two important articles on abortion and healthcare reform.  The first is by the editors of Public Discourse (full disclosure:  I'm on the editorial board), responding to an attack launched by the editors of Commonweal.  See here.  A taste: 

Our analysis of the billhas been concerned with protecting the unborn and guarding the consciences of those who bravely refuse to participate in their destruction. We have been guided by the conviction that it is our duty as citizens not only to extend healthcare but also to expand the circle of human care. Commonweal is free to flog whatever interests and flay whatever enemies it wishes, but those are distractions from the pressing task at hand.  We’re hardly happy with our assessment of the new health care law’s treatment of abortion. It would indeed be nice if the claims advanced by Commonweal and [Timothy} Jost were true and the position held by {Helen] Alvaré and every major pro-life group was false. But the law speaks for itself. There is nothing we can do except change it. One way to do so would be through the Protect Life Act, which was recently introduced into Congress. Here, surely, is a place where the pro-life movement can stand together. If Commonweal and Jost take protecting life as seriously as they took the imperative to pass the health care bill, they will stop sniping from the sideline and join us in the effort to restore the protections they helped destroy.

Helen Alvare's response to Timothy Jost’s critique is here. A taste:

In his responseto my piece on abortion and health care, Jost claims that pro-lifers have failed to cite relevant judicial decisions. This is a canard. Pro-lifers have cited the pertinent cases chapter and verse—especially in a legal analysiswritten by the United States Conference of Catholic Bishops. It is hard not to think that Jost is being disingenuous when he demands “[the name of a] single [judicial] opinion that has ordered abortion coverage in the face of a federal administrative regulation and an executive order that interprets a federal statute as prohibiting abortion coverage.  All that pro-life groups said—and all that I affirm after looking at the legal back-and-forth—is that between the plain language of the new health care law, its accompanying executive order, the legal precedents relevant to each, Congress’ rejection of proposed fixes, and the political processes leading to the enactment of the PPACA, pro-life citizens and legal experts were right to express grave concern over the final passage of this bill. They had more than reasonable cause to believe that it would move the United States toward a greater acceptance of abortion and the violation of moral conscience.

 

 

Is Judge Walker's ruling wrong or just premature?

By Rob Vischer

I was out of town last week, so I just now had the chance to sit down and read Perry v. Schwarzenegger.  A few initial reactions:  First, what were the proponents' counsel (pro-Prop 8) thinking in only putting on two experts, neither of whom strike me as especially strong under Daubert/Kumho Tire?  To be clear, I think David Blankenhorn is a very thoughtful writer and effective advocate, but that doesn't make him a good choice as a testifying expert witness.  More broadly, if constitutional litigation is a battle of public policy arguments (and I'm not saying it should be), this one was no contest.

Second, Judge Walker's sweeping findings of fact strike me as overconfident in portraying as conclusively settled issues that, at least in my understanding, are still being debated, see, e.g., #55 ("Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex relationships."), #70 ("The gender of a child's parent is not a factor in a child's adjustment."), #71 ("[H]aving both a male and a female parent does not increase the likelihood that a child will be well-adjusted.").  Elsewhere, he frames the finding in a way that begs the question, see, e.g., #34 (adopting definition of marriage that would cover nonsexual relationships), #77 ("Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions."), or is quick to attribute the most harmful of implications to Prop 8, see, e.g., #58 (Prop 8 "places the force of law behind [the stigma] that gays and lesbians are not as good as heterosexuals").

Third, to the extent that Judge Walker's findings are based on the paucity of contrary evidence presented by proponents' attorneys, perhaps this suggests that a courtroom trial is not the ideal setting in which to chart a course for the future of foundational social institutions.  When we're trying a case to see whether defective brakes or driver error caused the car accident in question, plaintiffs and defendants fail or prevail based on the evidence they can put before the court.  Adopting a definition of marriage because it was the only one put forward by a qualified expert seems a bit more dicey.

Fourth, a quick thought experiment: suppose that Judge Walker's ruling was issued forty years from now, and that California at that time is the only state not to have adopted SSM through the political process.  Suppose further that empirical studies support conclusively all of Judge Walker's factual findings about the quality of parenting, the stability of relationships, etc. in comparing same-sex and opposite-sex couples.  In other words, the consequentialist arguments are off the table.  Assuming that Lawrence v. Texas is still good law at that time, would Judge Walker be wrong to rule that Prop 8 is unconstitutional?  If so, why?  What would the legitimate state interest be at that point in prohibiting SSM?

"Welcome" remarks for new law students

By Rick Garnett

One of the things that is fun about my new(ish) administrative position is that my dean lets me do a short "welcome" speech to the incoming first-year students.  So . . . what should I say, about the law, lawyering, Notre Dame, etc.?  Comments are open.

"A Theology of the Suburbs"

By Rick Garnett

This morning, instead of doing what I should have been doing (ed.:  what else is new?  RG:  Shut up.), I came across a new, interesting-looking blog by a Notre Dame graduate student in Theology ("Theopolitical").  Check out, for example, this interesting post on a "theology of the suburbs".  There's lots of other good stuff, too.

Horwitz on work-family balance and trade-offs

By Rick Garnett

MOJ-friend Paul Horwitz has an as-per-usual thoughtful post at Prawfsblawg, "Writing Guilt and Gender", about (among other things) the trade-offs we make between our professional and family obligations.  Here's a bit:

My own view would be to encourage academics to feel an appropriate amount of need to balance professional and personal obligations, and not to convince themselves that the right approach is no guilt at all.  Perhaps we should all be thinking more about our families.  But I would say there is no better reason to feel guilt about writing than about the other aspects of one's job, even though writing inevitably involves stretches of thought and reflection.

Check it out.

Saturday, August 7, 2010

Shutter the parish because the visitor doesn't like it there?

By Patrick McKinley Brennan

I've received some sprited correspondence concerning my "eye contact" post, as I expected and even hoped I would.  Some of that correspondence wonders why I would post something about liturgy on a Catholic "law blog."  That's easy, and I thought it would have been obvious (especially given its development here at MOJ over the years).  We are not "Catholic" if we are not Eucharistic.  Who we are as a Eucharistic people is not, furthermore, just about (as one corresdpondent called it) "liturgical aesthetics."  Our sense of who we are as lawyers, citizens, servants must be, in part, a function of who we are as Christians, and that depends in part on how we understand ourselves in relationship to the Lord and others in his Mystical Body.  Congregationalism, for example, leads to a different view of the state than does a rich theology of the Mystical Body. 

Which leads to the second point I'd like to address.  A number of correspondents have accused me of being condescending with respect to Fullam's claims.  But let's ask for a moment, if it's possible, how the established Eucharistic community Fullam visited would likely receive her published, disseminated, and fairly widely discussed decision that its church should be deconsecrated and the community itself  thus put into diaspora.  What if they read and pondered her post?  Would they feel respected?  Think about it:  Fullam parachuted in and posthaste declared the community's life not worthy of continuance, then she returned to Berkeley (which, as I say, I love).

Pullam's words were flippant, I would suggest; her respect for the integrity of the worshipping community she visited was, it seems to me, lacking.  One of my great joys in traveling in Europe is the rich diversity of liturgical communities I've been privileged to participate in.  Some of them are more resonant with me than others, to be sure -- but what bearing has that on whether the less resonant communities should be terminated?  I defy someone to show me how, given the reasons she marshaled for its closure, Prof. Fullam respected the community she visited.

When Fullam arrived, there were souls gathered to pray in the Lord's name, indeed to celebrate the Mass -- yet Fullam, the visitor, calls now for the community to be dispersed.  In my humble judgment, Fullam's stance/agenda merits careful consideration, rejection, and, further, the rebuke I tended to deliver.  Turnabout is fair play, and I replied as I did in order to create a sense of how Fullam's victims might feel about her treatment of their lived reality.  Fullam ignores the side she doesn't live.  I pointed out that she is apparently tone deaf to what it is that had in fact gathered the Eucharistic community she was gifted to be able to visit (and then condemn).   

Let this be clear.  My reply to Fullam was only indirectly related to what is condescendingly and dismissively referred to as  "liturgical aesthetics."  She called for the deconsecrating of a church and thus the end of the community's life together in worship.  I meant to show -- as I would again -- the insufficiency (and nature) of the reasons for that judgment by a visitor to that worshipping community.  It was her insistence upon a certain kind of aesthetic that led to her call for closure!  I'm much more tolerant. 

Previous Articles More Articles

Recent Posts

Categories

Monthly Archive