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.

Friday, January 13, 2012

More thoughts on the ministerial exception and the "two realms"

By Rick Garnett

On a Law and Religion-related listserv, a colleague wrote -- commenting on the AALS "hot topics" panel dealing with the Hosanna-Tabor case -- that:

Although only mentioned once on the panel, I think the worldview at stake
>> was the “two realms” understanding—that the State and the Church operate
>> in separate domains.  But there are problems with this view.  First, we as
>> a society do not really believe it.  The King’s criminal law now reaches
>> into the churches, fortunately, and a capitalist society will always
>> ensure that ministers’ contracts are honored by churches, in court if
>> necessary (as the Court in Hosanna-Tabor predictably reserved).
>>
>> But neither do religious believers accept the two realms.  For separate
>> realms can also mean marginalization of religion into a private space.
>> The next time believers want a national motto with the word God in it, the
>> objection will be raised that State and Church are indeed separate, as the
>> ministerial exception seems to imply.

I wrote, in response:

These are deep and interesting questions.  For what it's worth, I don't think the only or best alternative to a "warranted for prudential reasons carve-out from the state's otherwise applicable authority" view of the ministerial exception is an "absolutist" "two realms" model.  I *do* believe that a whole lot of our history is the story of the working out of, evolution of, wrestling with, and attacks on the Gelasian "two there are" description, but part of that story is (obviously) the development of nation-states and constitutional liberal democracies.  As I see it (I think!), my colleague Bob Rodes' use of the term "nexus" to describe church-state relations is helpful, and maybe describes things both more accurately and more attractively than, say, "two [temporal] realms."  In any event, I think we can (and should) say that the older, not entirely supplanted model lives on in the idea that political authority is limited in (at least) two ways:  constitutionally (through structural features with which we are familiar and also through Bill-of-Rights-type explicit constraints) *and* by the (even now) reality that there are other legitimate authorities and societies, besides political authorities and societies.  This is not absolutism -- it does not absolutize either the liberal state or the "two realms" image -- and it's not even "autonomy" in a full-blown sense, but it is pluralism.  And, as Mark DeWolfe Howe suggested, way back when Kedroff was decided, our Religion Clauses and Constitution *can* (still) be understood in a way that's consonant with this pluralism.  The "ministerial exception" is usefully thought of, I think, a still-relevant manifestation of this pluralism (rather than, again, only a concession made by the state for the state's own reasons).  Figuring out what exactly the content and contours of this manifestation should be, in terms of legal doctrine and methodology, should be is, no doubt, a challenge, and reasonable people will disagree about it.  But, I think the Court was right to emphasize the *right* -- the authority -- of religious communities to select those who will "personify" their teachings and faith.

 

Can a Judge Refuse to Conduct a Gay Marriage?

By Marc DeGirolami

Here's one right in the Vischer wheelhouse.  This is the question that an anonymous New York judge asked the New York Judicial Ethics Committee.  In this judicial ethics opinion, the Committee largely did not answer it, though it did opine that the judge could choose to conduct only those weddings of his relatives and friends.  That would be tantamount, in the Committee's view, to refusing to conduct marriages "on a facially neutral basis" and the Rules Governing Judicial Conduct do not require a judge to conduct weddings.

Wednesday, January 11, 2012

More on Hosanna-Tabor

By Thomas Berg

A couple more thoughts on the huge victory for institutional religious freedom in Hosanna-Tabor.  Although the majority opinion holds only that Perich was a "minister" under these facts--teaching religion classes, sometimes leading worship, holding a "commissioned" title after a period of theological education--the impact and signals are broader.

First, when you win on the facts of a case, you typically also get language earlier in the opinion that supports your side more broadly.  Conversely, if you lose on the facts, you often also get stuck with broad negative language earlier in the opinion.  Here the broad language in favor of institutional religious freedom includes not only the ringing historical and doctrinal affirmation of the ministerial exception.  It also includes the passage distinguishing away Employment Division v. Smith.  That decision, the Court said, only allowed upheld neutral prohibitions of "physical acts" (like peyote ingestion), not "government interference with an internal church decision that affects the faith and mission of the church itself."  Although those two categories don't match each other well, the point is: the Court distinguished Smith not on the narrow ground that Title VII suits would unconstitutionally entangle judges in religious determinations, but on the broader ground that religious organizations have a constitutional right to choose their leaders and even a broader right to make "internal ... decision[s] that affect [their] faith and mission."  These phrases suggest many possibilities for constitutional arguments, even if we don't know they'd be constitutional victories.

Second, although the majority is case-specific on who counts as a minister, three justices--including Elena Kagan!--endorse a broader definition.  Thomas would defer heavily to the religious organization's characterization of an employee as a minister.  And Alito and Kagan say that ordained or "commissioned" status isn't crucial, that the question is about religiously-significant functions (listing several of them), and that "the constitutional protection of religious teachers is not somehow diminished when they take on secular functions in addition to their religious ones.  What matters is that respondent played an important role as an instrument of her church’s religious message and as a leader of its worship activities." (Concurrence at 8)  I can imagine imagine teachers in many Christian schools satisfying that test, and also many employees in many religious social services who explicitly communicate religious messages along with the services they provide.  With three justices explicitly taking the broader approach, all you need is a couple more (Roberts and Scalia, most likely) for a majority.  Hosanna-Tabor doesn't give us a full-fledged broad definition for a "minister," but it makes the route to such a definition much easier.

Hosanna-Tabor: Freedom of Religion (Not Merely Association) and a Note about Defenses

By Michael Moreland

Following on Rick's and Marc's posts, today's decision in Hosanna-Tabor is a resounding vindication of church autonomy (interestingly, a phrase that appears prominently in the concurrence by Justices Alito and Kagan) and religious freedom. Congratulations to Doug Laycock, who adds a litigation win in this major religious freedom case to his remarkable scholarly career. Two offhand things to note:

1. The Court (correctly, in my view) utterly rejects the view of the Obama Administration and some amici (see my earlier post here) that the right of religious institutions to select their own ministers isn't protected under the Religion Clauses and (what little is left of such a right) could instead be protected under the freedom of association. Chief Justice Roberts doesn't spend much time on how or why churches aren't just like the Boy Scouts (to adapt a phrase from Rick), and filling out the argument here is an important and ongoing scholarly task: 

The EEOC and Perich acknowledge that employment discrimination laws would be unconstitutional as applied to religious groups in certain circumstances. They grant, for example, that it would violate the First Amendment for courts to apply such laws to compel the ordination of women by the Catholic Church or by an Orthodox Jewish seminary. According to the EEOC and Perich, religious organizations could successfully defend against employment discrimination claims in those circumstances by invoking the constitutional right to freedom of association—a right "implicit" in the First Amendment. Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984). The EEOC and Perich thus see no need—and no basis—for a special rule for ministers grounded in the Religion Clauses themselves.

We find this position untenable. The right to freedom of association is a right enjoyed by religious and secular groups alike. It follows under the EEOC’s and Perich’s view that the First Amendment analysis should be the same, whether the association in question is the Lutheran Church, a labor union, or a social club. That result is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations. We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers. 

2. I still think Greg Kalscheur's argument that the ministerial exception is best understood as a subject matter jurisdictional defense is profoundly right, but the Court's opinion drops a footnote resolving the circuit split and states that the ministerial exception is instead an affirmative defense (slip op. at 20 n.4). But I suppose it's a great day for religious freedom when one is left only to nitpick over the distinction between a jurisdictional bar and a defense on the merits.

The Historical and Particularist Quality of Hosanna-Tabor

By Marc DeGirolami

Like others, I'm still digesting the Court's unanimous decision in Hosanna-Tabor.  But I thought to note something interesting (to me).  Back in this post, I predicted that the Court would issue a decision that reflected a highly particularized and deeply historically informed sensibility -- historical both in a social and doctrinal fashion.  I think that Chief Justice Roberts's majority opinion does just that.  Take a little tour of the decision with me.

First, notice the Chief Justice's long discussion of English and early American history at pp. 6-10.  That discussion takes stock not only of several controversies in which James Madison offered a salient view of certain church-state matters, but of the broader historical firmament of American religious liberty.  In an opinion 22 pages long, that's a fairly significant quantity of historical treatment.

Second, note also that the Chief Justice mentions not once, but twice, the fact that all courts of appeals to have considered the question have held that there is, in fact, a ministerial exemption.  But why?  Why should the Supreme Court care about this?  After all, it is superior to those courts and is not bound by their judgment.  And yet the Chief Justice chooses to emphasize the bare fact of the broad consensus about the existence of the ME.  It's almost obverse stare decisis.  That may reflect at least in some measure the sense that the existence of that substantial doctrinal history is itself meaningful -- itself a reason to recognize the ME with some independent force.

Third, after recognizing the existence of the ME, check out this line: "We are reluctant, however, to adopt a rigid formula for deciding when an employee qualifies as a minister.  It is enough for us to conclude, in this our first case involving the ministerial exception, that the exception covers Perich." (15-16) The Chief Justice has been described as a minimalist before, and the holding of the case (at 21) bears this out.  But this takes things a step further.

It seems to me that what he is saying here (and what is reflected in the rest of the opinion) is a highly particularized series of inquiries about the nature and function of Perich's duties, what Perich herself did, and so on -- a suite of inquiries -- without reliance on any one of these inquiries as categorically dispositive.  In light of "the formal title given Perich by the Church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the Church," the ME applied, but the Chief was careful not to rest the decision on any one of those factors alone.  (18) He notes, for example, that the formal title alone would not necessarily in all cases trigger the ME (see also J. Alito's concurrence).  Hence, my belief that the Chief Justice's opinion reflects a particularistic approach which eschews reliance on any single value for determining when the ME applies.  Compare, on this front, Justice Thomas's concurrence, which argues for a more absolute rule. 

I do have some criticisms of the Chief's opinion (I know, I know, everybody's a critic!): it does not take sufficient stock of the values operating against the ministerial exception.  He does say, somewhat quickly, that "[t]he interest of society in the enforcement of employment discrimination statutes is undoubtedly important," but he under-explores those interests, for my taste.  Indeed, I would wish -- especially in light of the multi-factor approach that the Court adopts -- that the decision were a bit longer in fleshing these interests out, for signaling reasons among others, and I also tend to think that the Chief treated too dismissively the distinction between an action for reinstatement and one for damages.  I think that distinction could matter, and it would have been better if the Chief had discussed a bit the contexts in which it could matter, even if it didn't matter here.  I also did not find quite right the statement that "the First Amendment has struck the balance" between these values.  It might have been better, in my own view, to say that the balance has been struck by the Court, here and in this case, in light of the First Amendment.  But on the whole, I think the opinion fairly well reflects the method that I am trying to get across.  I also admire, and think worthwhile, the functionalist analysis of the term, "minister," which Justice Alito discusses in concurrence, though I've got quibbles here and there with which I will forebear from taxing you.

Court unanimously (!) embraces the ministerial exception in Hosanna-Tabor

By Rick Garnett

I confess, I expected the usual "decision in late June," but I'll certainly take this:  In an opinion for a unanimous Court, Chief Justice Roberts ruled in Hosanna-Tabor that the Constitution requires a ministerial exception, and that the exception applied in that case.  Importantly, the Chief Justice rejected the idea -- it "misses the point," he said -- that a religious institution must assert a "religious reason" for an employment decision in order to trigger the Constitution's limits on government involvement in the selection of ministers.  Also very important, I think, was the Court's clear rejection both of the Sixth Circuit's "count up the hours" approach to identifying "ministers" and its emphasis on the fact that the teacher in this case had "job duties" that "reflected a role in conveying the Church's message and carrying out its mission."  In other words, the exception is clearly not limited to ordained clergy.

Many of us have blogged often about the case and the questions it raises.  I'm sure the conversation will continue.  Suffice it to say (for now) that, in my view, this decision is important, correct, and welcome.

UPDATE:  Some more thoughts, here, at Bench Memos.

UPDATE:  Here's my insta-punditry, at USA Today, about the case:

At a time when the elected branches of government seem divided and dysfunctional, and when candidates in primary elections struggle to magnify every disagreement, it was nice of the Supreme Court, led by Chief Justice John Roberts, to remind us today that clear, efficient, consensus, and correct decisions about things that really matter are still possible . . .

Tuesday, January 10, 2012

"Sustained by Faith"

By Robert George

This past summer, I sat down for a conversation with Kevin Spinale, SJ of America magazine.  The edited text of our conversation was published in November.  Here it is:

"Sustained by Faith"

An interview with Robert P. George

Kevin Spinale, S.J. | NOVEMBER 7, 2011

KS: How do you pray?

RG: On my knees, the old fashioned way. Not always, but I do find that being on one’s knees in a posture of prayer facilitates trying to remove oneself from one’s normal routines and puts oneself in the presence of God for that conversation. I like to pray with people, especially with friends—some of whom are Catholic, some of whom are not. I like the old fashioned forms of prayer such as the rosary or the Our Father, the Hail Mary, the Glory Be because of their simplicity. We learned them as children, most of us, and they continue with us in our adult life. We should never regard ourselves as too sophisticated for these prayers.

KS: How do you address spiritual desolation?

RG: I find that reading and praying the Psalms is helpful. Especially in the darker moments—those moments of peril or, as you say, desolation—the psalms remind us that God is in charge and that we are ultimately reliant on him. I think of Jesus’ prayer on the cross: “My God, my God, why have you forsaken me?” [Mk 15:34]. Jesus is stating the first few words of a psalm [Psalm 22] that will end not with an expression of despair but with a profound expression of hope and trust in God. We are not in control. My great and dear and much missed friend, Father Richard John Neuhaus, used to say: “We have to remember that we are not in charge of making things turn out all right. That’s God’s job. We are in charge of being faithful. We are just supposed to be faithful. The rest is God’s part.”

KS: Who did you look to as you matured spiritually and intellectually?

RG: My parents were very important spiritual influences in my life, in quite different ways. My father has very deep but childlike faith. When you hear him praying, you would think that he is talking with a friend. He comes from the Eastern tradition, Syrian Orthodox, and there is a very strong mystical component in the Eastern tradition, very deeply Trinitarian, and a strong devotion to Mary as well. My mother is from an Italian background and is Roman Catholic. She taught us the formal prayers. The rhythm of our lives was the rhythm of the church’s year: Sunday Mass, Stations of the Cross in Lent, the special occasions of adoration of the Eucharist.

I got interested pretty early on in the intellectual side of religion and in the intellectual side of Catholicism. When I attended Swarthmore College, the Catholic chaplain, the Rev. Thomas Halloran, a priest of the Archdiocese of Philadelphia, was very interested in transcendental Thomism, particularly in Bernard Lonergan’s work. He helped to feed that interest that I had already developed in the intellectual side of Catholicism, especially the philosophical side.  In graduate school, I was supervised by John Finnis at Oxford, who is a contemporary Catholic moral and political philosopher. Finnis, like so many of my Catholic friends, especially my intellectual Catholic friends, is a convert. Many of the Catholic intellectuals whom I admire are also converts: Elizabeth Anscombe, Michael Dummett, Peter Geach, Alasdair MacIntyre, Nicholas Rescher, Richard John Neuhaus, Robert Wilken, Elizabeth Fox-Genovese, Hadley Arkes, Jean Bethke Elshtain. They influenced not just the spiritual dimensions of my faith but also the intellectual dimensions. My faith has also been enriched by the influence of religious people and writers from other traditions, including Rabbi David Novak, Gilbert Meilaender, who is a Lutheran, and Leon Kass, who is Jewish.

KS: How does your faith influence or sustain your academic scholarship and teaching?

RG: The Second Vatican Council teaches that all of us, not only those called to priesthood and religious life, have vocations. The council stresses the importance of discerning our vocations and integrating all the different aspects of our lives in light of our discernment of what God is calling us to do. I view my teaching, my scholarship and my activism in the world of public affairs as part of my vocation. Faith plays an important integrating role in my life. My life is sustained by faith. I need God’s help to discern what I should be doing and how to do it well. I need God in my life to apologize to when I fail. I need God as comforter and also God as challenger. I think that God challenges us to do more and to do better. It is in the light of God that we can see just how little we have accomplished, no matter how generously the world has showered its honors on us.

KS: How does a person know that a particular vocation is what God intends for him or her?

RG: I think the only way anyone can know one’s vocation is by discerning it in prayer. One has to be in relationship with God. That means, for a Christian, being in relationship with Christ and looking for that guiding hand and feeling the force of that hand when you are going off the path. God is always trying to bring you back on to the straight and narrow way, and because his hand is gentle, it is all too easy to pretend that we do not feel it.

Of course the real danger with any human life is rationalization. If you rely just on feeling, then most of the time you are going to think: Well, if I want to do something, that must mean that God wants me to do it or is giving me permission to do it. We confuse God’s will with our desires, when in fact God may be willing that we resist those desires.

KS: What aspect of Christianity or Christian belief most resists a rational account?

RG: I think the Christian faith, particularly the Catholic faith, is a very reasonable faith. Catholics think that faith and reason are both important and mutually supportive of each other. In his encyclical “Fides et Ratio,” Pope John Paul II begins with this wonderful image: he says that faith and reason are like the two wings on which the human spirit ascends to contemplation of the truth, and it does take both wings.  I think that the strongest, most mysterious and, in some ways, the most impressive aspect of Christian faith is that it challenges natural human emotions. Perhaps the most radical of all of Christ’s teachings is love of enemies. I would not say that love of enemies is contrary to reason. But I would say it is contrary to the natural emotions that we have, and so it challenges us in a fundamental aspect of our being, because we are not just pure minds. We do have emotions and we do have feelings, and loving our enemies is not only difficult, it just goes against the way we are made. To me, the fact that Christianity could make so bold and radical a demand is more evidence for the supernatural truth of Christianity.

I see the Christian faith as a faith that integrally involves a hope that is not a matter of blind faith. Of course, since the whole story of salvation, the whole story of redemption, is so marvelous and transcendent, it is plainly outside the realm of our ordinary experience, and thus it is a challenge to reason, because reason ordinarily deals with what is normal—what happens most of the time. Here you have something extraordinary in every way; so yes, there is a certain kind of challenge to reason, but not one that should lead us to think that we should praise the irrational or that our faith as Christians is an irrational faith.

KS: How does the reality of suffering affect your prayer, your living out of faith?

RG: It is a cliché but, nonetheless, I think it is true—that from the Christian point of view, suffering can only be accounted for as a great mystery. Christianity has a story about suffering. It is a very powerful and beautiful story, but it is a difficult one: suffering offers us the opportunity to participate in a small way in the redemptive work of Christ. Martin Luther King Jr. emphasized that unearned suffering is participation in the act of redemption. Now, why would redemption require suffering? Or how is sacrifice necessary for redemption? These are deep issues to which, ultimately, I think there is no completely satisfying answer. With a mystery like this one can only enter more deeply into it rather than solve it. It is not meant to be solved.

Suffering is a challenge to us in two ways. First, no life is free of it. It is the nature of suffering that you cannot protect yourself against it or ward it off by being rich or important or by having status, celebrity or prestige. Second, suffering calls forth from us a natural human empathy; but beyond that, in our Christian vocation it demands of us a response. It requires us to be there for the other person to try to ameliorate suffering. It is most significant and most challenging when it is suffering that cannot be made to go away, but which can be lightened by sharing. Where one’s Christian vocation requires one to meet the needs of others who are suffering, by sharing their suffering, by taking part of it on oneself—that is the imitation of Christ.

KS: What advice do you have for young adult Catholics maturing spiritually and intellectually?

RG: My first bit of advice would be to attend to your spiritual life. Develop a strong interior life, especially when we are making educational choices and anticipating career choices. We have to discipline ourselves to maintain regular prayer, engage a spiritual director and examine the options for different kinds of spirituality—Ignatian spirituality or the spirituality associated with some of the new movements in the church like Opus Dei and so forth. Find something that one is comfortable with, and make it a point to work on strengthening one’s spiritual muscles all the time. A lot of young people today will really be determined about jogging or going to the gym and staying physically healthy; we need to have the same attitude toward our spiritual lives.

Perhaps the most important thing for young people to be thinking about is, what is God’s plan for their lives; what is God calling them to do? Discerning that vocation is in a certain sense one’s primary job; and if you do not have a strong interior life, you lack the foundation for that discernment. Strengthen your spiritual life so that you can properly discern God’s will for you in all the dimensions of your life. Gain God’s assistance in living a life that makes sense—integrated and devoted to things that matter.

Kevin Spinale, S.J., teaches at Boston College High School, in Boston, Mass.

Monday, January 9, 2012

Introduction to Conference on Christian Legal Thought

By John M. Breen

At the suggestion of several fellow MOJers, I offer below my opening remarks at the 2012 Conference on Christian Legal Thought co-sponsored by the Law Professors’ Christian Fellowship and the Lumen Christi Institute that took place this past Saturday, January 7th, at the University Club in Washington, D.C.

-----------------------------------------------------------------------------------

Thank you and good morning.  As many of you know, the Lumen Christi Institute is an academic institution founded in 1997, based at the University of Chicago, and dedicated to the revitalization of Catholic intellectual life on the nation’s campuses.  This is the eighth year that the Lumen Christi Institute has co-hosted this one-day academic conference with the Law Professors’ Christian Fellowship and it has proven to be a very fruitful collaboration for both the Institute and the Fellowship, for Catholic and Evangelical law professors and indeed Christian legal academics from every denomination.

This summer, my wife and children and I visited my late Irish father’s family in England.  We had a wonderful time visiting with our relations in north London, down in Surrey, up in Yorkshire, over in Birmingham and the Midlands and back in London.  In traveling the English countryside I took the occasion to read a book I am embarrassed to say I had never read before, Evelyn Waugh’s Brideshead Revisited.  The novel shares with us the recollections of Charles Ryder in his encounter with members of the aristocratic and Catholic Flyte family headed by Lord Alexander Flyte, the Marquess of Marchmain.  Ryder forms a special friendship with Sebastian, the younger Flyte son, while the two are students at Oxford.  Later in life, he becomes for a time the lover of Sebastian’s sister, Julia.

The Marchmains are a highly peculiar and deeply flawed family – flaws that stand in sharp relief to the family’s outward devotion to the Catholic faith:  Lord Marchmain lives apart from the family with his mistress in Venice; Sebastian is a drunkard and perhaps a homosexual; Julia marries a politically ambitious non-Catholic divorcee.  Although it is true that numerous human failings play a vital role in the make up of the narrative, the novel is not a critique of religion through an exposition of the hypocrisy of those who profess belief in the Christian faith.  Nor is it a story in which the characters engage in lengthy theological disputations concerning the existence of God, the problem of evil, or the possibility of free will.  Instead, Waugh described the book as a novel that “deals with what is theologically termed ‘the operation of Grace,’ that is to say the unmerited and unilateral act of love by which God continually calls souls to Himself.”  Indeed, it may fairly be said that the principle actor in the drama that unfolds in the novel is not Charles Ryder or any member of the Marchmain family but the Holy Spirit.

The first passage in which religion is mentioned takes place during Charles’ first extended stay at the Flyte family residence, Brideshead Castle.  Sebastian has attended Mass in the chapel on the grounds of the estate and Ryder offers the following remarks:

 “Sebastian’s faith was an enigma to me at that time, but not one that I felt particularly concerned to solve.  I had no religion.  I was taken to church weekly as a child, and at school attended chapel daily, but, as though in compensation, from the time I went to my public school I was excused church in the holidays.  The view implicit in my  education was that the basic narrative of Christianity had long been exposed  as a myth, and that  opinion was now divided as to whether its ethical teaching was of present value, a division of which the main weight went against it; religion was a hobby which some people professed and others did not; at best it was slightly ornamental, at the worst it was the province of ‘complexes’ and ‘inhibitions’ – catchwords of the decade – and of the intolerance, hypocrisy, and sheer stupidity attributed to it for centuries.  No one had ever suggested to me that these quaint observances expressed a coherent philosophic system and intransigent historical claims; nor, had they done so, would I have been much interested.”  Evelyn Waugh, Brideshead Revisited 85-86 (1944)

I want to suggest that Charles Ryder’s description of his friend Sebastian’s religion is an accurate portrayal of how the vast majority of our secular colleagues in the legal academy view the Christian faith, and, by extension, the project of Christian legal thought.  To the extent they think on it at all, most of our colleagues believe that Christianity is a “slightly ornamental hobby” that has “long been exposed as a myth.”  They are convinced that the value of its ethical teaching – especially on the neuralgic issues of the day, issues that potentially intersect with law – is decidedly negative, indeed, dangerous to the point of being obscene and inhuman.  Here Christianity exhibits intolerance (in, for example, its opposition to same-sex marriage and abortion) hypocrisy (in what its clergy preaches from the pulpit and how they actually behave) and sheer stupidity (in its opposition to the use of condoms in countries where AIDS is rampant).  Where it doesn’t inspire hatred or repugnance it generates only indifference – its persistent appeal is an “enigma” that no one “feels particularly concerned to solve.” 

Yet, unlike Ryder we know that Christianity does indeed express a coherent philosophic perspective and that it makes intransigent historical claims.  Indeed, as those who have received the Gospel – the Good News for all humanity – we know that the claims of Christianity are not merely defensible but compelling.  Moreover, as students of and participants in the Church’s intellectual tradition, we know that Christianity has something profoundly meaningful to say about law, and justice, and institutions, and authentic human flourishing.

The lack of genuine dialogue with our secular colleagues – those at the AALS who are sometimes referred to at this conference as being on “the other side of the street” – can be a source of frustration and disappointment.  No one wants to be dismissed out of hand, to not be taken seriously – especially those who earnestly seek to engage in the kind of honest, searching conversation that is the bedrock of the academic enterprise.

Still, we can be confident that our efforts are not in vain.  Our meetings together – Catholic and Protestant – bear witness to the Lord’s prayer “ut unum sint” – “That they be one” (John 17:21).  The exchange of ideas, the critical thinking we perform together will, perhaps in ways we cannot now appreciate, contribute to the reclamation of law and the reform of legal education.  The fellowship we share and the prayer we make is no “quaint observance” but a foretaste and anticipation of the fulfillment of human nature transfigured in the life of the Divine.

As we begin our day together we should bear in mind the theme of Waugh’s novel, the lesson that the once agnostic Charles Ryder learns in a way that no lecture at Oxford could possibly demonstrate – that grace abides, that we are not merely workers – laborers who toil in the legal vineyards of the Lord – we are being worked upon, silently, lovingly, mysteriously by unseen hands.  We see ourselves as potters at work at the wheel, and so we are in a small way – but we are also clay in the hands (cf. Jeremiah 18:6; Romans 9:21) of Him who fashioned the sun and other stars and by His love moves them in the wheel of the firmament (cf. Dante, Paradiso, canto 33).

Catholic High School: A Faith Community in Times of Trouble

By Greg Sisk

On the Mirror of Justice, we've often posted messages on the practical advantages of Catholic education, in terms of educational quality and opportunity for a diverse population of students.  As Mirror of Justice readers may remember, my daughter attends Benilde-St. Margaret's High School school Bsm2in the Twin Cities, which exemplifies those qualities.  I am so very thankful that she is in an environment where being "cool" and being "smart" are not incompatible.  At Benilde-St. Margaret's (BSM), to be the captain of the football team or a state tournament quality player on the girl's soccer team and also to be a top student is commendably seen as unremarkable.

But what makes Catholic education distinctive is our Catholic faith.  The events of this past week at Benilde-St. Margaret's has reminded me of the inestimable value of a Catholic educational community when tragedy strikes, as administrators, faculty, students, and families come together openly in the name of Jesus Christ.

As reported prominently in the Minnesota news media (for examples, see here and here), as well as in the BSM high school press (see examples here and here), a sophomore playing on the BSM hockey team Jackwas checked from behind into the boards and suffered a spinal injury, leaving him hospitalized with paralyzing injuries.  Although the injury came during the holiday break, within a couple of days, the whole BSM community had come together to support Jack Jablonski (the injured player) and his family, with visits to the hospital, school rallies in support, etc.

And, being a Catholic high school, prayer has been central to the support.  When a young person suffers such a tragic injury, our faith can be tested, as we question how a loving God can allow such a thing to happen.  But it is precisely in such times of hardship that we see the fruits of longstanding faith and the enduring value of a high school that is unapologetically and openly united as a community by faith in God.

A recent message from the BSM principal, Dr. Sue Skinner, says it so very well:

What happened to Jack doesn’t make sense and it’s very difficult to see him, his family and our community suffer.  What does make sense is that we can talk about this in the light of our faith.  What does make sense is the outpouring of love and support for each other.  We know that God has not and will not abandon us.  We have hope and faith that miracles happen.  They may not always appear as we planned, but they appear nonetheless.

When classes at BSM resumed after the holiday break, there was a prayer assembly in support of Jack, that my daughter says was one of the most amazing experiences of her high school years.  The quiet seriousness of the students, the intensity of their devotion and prayers, their heart for Jack, and the tangible unity of their faith (my daughter describes the students joining to make the Sign of the Cross almost as if in practiced synchronicity).

We have been delighted to learn from Jack's mother that he is improving, able to move his arms on command in ways that had not been anticipated and contradict the initial diagnosis (here).  We do understand that his recovery will be slow and that his life has been changed forever.  But the BSM community has shown that he will never been alone in that struggle.  (Those who read this message and are moved to offer support to Jack and his family can find information here.)

And we have been deeply moved to learn that Jack has insistently been asking about the other team's player that checked him, wanting to know that he was doing well and wanting to assure him that he too should not carry this burden alone.  When that other player courageously visited Jack in the hospital, the Star-Tribune (here) described him as bringing "tremendous guilt but left with forgiveness."  Jack and his family understand that the check was not malicious and not intended to cause injury.

Such an admirable and loving response is reassuringly typical of the kind of young men and women being formed in faith and conscience at Benilde-St. Margaret's.  I pray that we will see a flourishing of Catholic education -- and similar programs and schools for other faith communities -- in the years ahead.  God knows that we all need it and will all benefit from it.

Greg Sisk      

McConnell: "Is There Still a 'Catholic Question' in America?"

By Rick Garnett

In the Fall of 2010, Prof. Michael McConnell gave a great lecture, to a packed house, at Notre Dame, on the occasion of the 50th anniversary of then-candidate-Kennedy's "Catholic speech" to the Houston ministers.  The lecture is now available here, thanks to the Notre Dame Law Review.  No surprise -- it's excellent.  The conclusion:

We should not underestimate the importance of what he was saying.  By running forthrightly, and not apologizing for his Catholicism, and winning, and showing himself to the world as a President of whom we all can be proud, John F. Kennedy won a great victory for inclusion and against bigotry. But we must not overlook the way in which he reduced religious belief to accident of birth, or more specifically, to baptism. The important question facing the nation was not whether forty million Americans baptized into a certain religion are excluded from the presidency, but whether many more millions of Americans are excluded from full political participation because they ground their understanding of justice and morality in the teachings of their faith. The intellectual descendants of Blanshard and Dewey are still raising this question. Those who spend time in philosophy departments and law schools will recognize its contemporary incarnations. And I am sorry to say that John F. Kennedy’s great speech in Houston provides these voices more ammunition than challenge.

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