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.

Thursday, September 13, 2012

Chicago Lecture: "Religious Freedom in America Today"

The Lumen Christi Institute and the Catholic Lawyers Guild are sponsoring a lecture by some guy named "Richard Garnett" on "Religious Freedom in America Today," at Skadden Arps in Chicago, on Sept. 26.  More info is available here.  (I gather there's CLE available!)  All those who are not re-arranging your sock-drawers on that day . . . see you there!

Wednesday, September 12, 2012

The NLRB and Religious Freedom

As noted in this story from the Chronicle of Higher Education and in this press release from the US House Committee on Education and the Workforce, I was one of the witnesses at a hearing earlier today on the topic of the NLRB and higher education. A good portion of the hearing was taken up with the issue of unionization of graduate students (one of my fellow witnesses was the graduate dean at Brown), but my testimony was about the NLRB's use of an intrusive (and constitutionally suspect) "substantial religious character" test for exemption from the NLRA for religiously-affiliated colleges and universities.

Hobby Lobby Sue over HHS contraception mandate

Hobby Lobby, an Oklahoma based company with over 500 stores in 41 states, filed suit today in federal court challenging "regulations issued under the 2010 Patient Protection and Affordable Care Act" arguing that the regulations "would force religiously-motivated business owners like Plaintiffs to violate their faith under threat of millions of dollars in fines."  

Tuesday, September 11, 2012

"For Greater Glory" released on DVD today

Get yours hereViva Cristo Rey! 

And, while you're at it, (re-)read Graham Greene's Power and the Glory.

The abortion debate: lower rates or more-just laws?

In this post, at America ("Schneck hits a nerve on abortion"), Vincent Miller writes, commenting on Prof. Steve Schneck's arguments at a recent Democrats for Life event:

Schneck casts much needed light on how abortion functions as a political
issue.  Over the years, I’ve spoken with many committed and knowledgeable
Prolife activists, who can recount and critique the various strategy and policy
positions the movement has made.  They know the issues and the political
tradeoffs.  (It’s encouraging to see similar reflection in some of the comments
on the CatholicVote site referenced above.) But for so much of our politics,
it’s simply a moral posture.  “Prolife” Republicans have been in power
repeatedly since 1980 and have spent virtually no political capital on policies
that address abortion in significant numbers.  It’s a posture that need have no
relationship to outcomes.

Schneck forces us to think about outcomes. . . .

Schneck’s argument is dangerous to those who want to use abortion as a moral
shibboleth.  If abortion is a real policy issue about women and children, the
calculus becomes much more difficult.  Moving from checking the right box (in
time for one’s candidacy) to arguing about outcomes can only be a win for the
Prolife movement.

Two quick points:  First, and with all due respect, Prof. Schneck's argument that "their proposals for Medicaid will have a grave impact on the abortion rate" rests on some highly questionable assumptions about the "proposals", about their effect on Medicaid, and about the connection between Medicaid cuts and abortion rates.  Others have fleshed this out (and not only in what Miller calls the "right wing Catholic blogosphere"), and so I won't get into the weeds on this matter here.

The more important point, as I see it, is this:  Yes, "outcomes" (i.e., fewer abortions) matter, but this is also a matter of basic justice.  It is deeply wrong and gravely unjust that our laws exclude from protection against lethal private violence a particular group of vulnerable and voiceless human beings.  This injustice is not lessened, it seems to me, by policies that have the no-doubt-welcome effect of reducing the human cost of those unjust laws.  To say, as Prof. Schneck did, that abortion is a "powerful abortifacient" is, I think, to obscure the (to me) very important point that it is our unjust abortion regime, which not only tolerates but constitutionally protects certain decisions made by actual real-life decisionmakers (not abstractions like "poverty") to cause the deaths of innocent persons.

Miller writes, "[m]oving from checking the right box (in time for one’s candidacy) to arguing about outcomes can only be a win for the Prolife movement," and I suppose, if the choice is actually between merely "checking the right box" and improving outcomes, that's right.  But, that isn't, in fact, the choice.  The claims are repeated often, but they don't get any less false with repetition, that pro-life politicians (who, at present, tend to be in the Republican Party) haven't actually delivered any improvements in the legal regime and that these improvements are merely symbolic, and do nothing to help with outcomes.  Again, both of these claims are false.  If one really cares about outcomes, one cannot shelve the hard work of fixing the regime.

UPDATE:  Michael Fragoso expands and improves on my points, at Public Discourse, here.

Rerum novarum and the Chicago Teachers Union strike

Regular readers of "Mirror of Justice" probably know that I am (to put it mildly) unimpressed by the argument one (too often) hears, in the context of policy and other debates about education reform, pensions and retirement benefits, collective bargaining and "closed shops", to the effect that "Catholic Social Thought supports unions -- see, e.g., Rerum novarum -- and, therefore, Catholics should be supporting the views and programs being advanced by the [fill-in-the-blank public-employee] union."  This and similar arguments oversimplify significantly the Church's teachings on the rights of association and the dignity of both labor and laborers.

The recently announced and (at present) ongoing strike by the Chicago Teachers Union illustrate, for me, all too well that and why these arguments misfire.  Chicago's public schools -- and the performance of too many of those schools' administrators and teachers -- are a disgrace, and they are causing -- at great public expense -- grave and lasting harm to thousands and thousands of vulnerable, often low-income people.  The Chicago Teachers Union, like so many others, resists meaningful educational reform -- including school choice, which Catholic Social Teaching clearly supports -- at (almost) every turn.  And yet, they are unsatisfied with pay that exceeds that of their colleagues in nearly every other big city and with a strikingly generous healthcare-benefits and retirement-benefits package, and they resist efforts to somehow hold them accountable for their performance.

Public education, properly understood, is the education of the public, and policies relating to public education -- which takes place in parochial, charter, and government-run schools alike -- should have as their aim the well being and flourishing of  those children being educated, not of the adults doing (or not doing, as the case may be) the educating.  

Meanwhile:

    . . .Dozens of churches and civic organizations offered activities to children Monday, hoping to give parents' options by keeping their kids off the streets. So, too, did about a quarter of the city schools, although they only had skeletal staffs and limited resources. . . .

We've been told, recently, that Rep. Ryan's economic proposals "fail [a] moral test" set out by Catholic teaching.  I'm pretty sure it doesn't, but put that aside.  This does. 

Gillespie, "The Theological Origins of Modernity"

I have been reading and greatly enjoying Michael Allen Gillespie's The Theological Origins of Modernity41547934 (2008), a learned and original intellectual history of modernity.  Gillespie's thesis is that the conventional account of modernity as setting itself in opposition to or as rejecting altogether religion and theology is mistaken.  Instead, as he puts it early in the book:

[F]rom the very beginning, modernity sought not to eliminate religion but to support and develop a new view of religion and its place in human life, and did so not out of hostility to religion but in order to sustain certain religious beliefs.  As we shall see, modernity is best understood as an attempt to find a new metaphysical/theological answer to the question of the nature and relation of God, man, and the natural world that arose in the late medieval world as a result of a titanic struggle between contradictory elements within Christianity itself . . . . I will argue further that while this metaphysical/theological core of the modern project was concealed over time by the very sciences that it produced, it was never far from the surface, and it continued to guide our thinking and action, often in ways that we do not perceive or understand.  I will argue that the attempt to read the questions of theology and metaphysics out of modernity has in fact blinded us to the continuing importance of theological issues in modern thought in ways that make it very difficult to come to terms with out current situation.

Gillespie goes about making his case by beginning with the contest between scholasticism and nominalism (the view that what is real is particular and individual, not universal, and so "God [cannot] be understood by human reason but only by biblical revelation or mystical experience").  The conflict was, as he says above, primarily and originally a late medieval conflict, not one which came into being in the Enlightenment (let alone later).  "The God that Aquinas and Dante described was infinite, but the glory of his works and the certainty of his goodness were manifest everywhere.  The nominalist God, by contrast, was frighteningly omnipotent, utterly beyond human ken, and a continual threat to human well-being.  Moreover, this God could never be captured in words and consequently could be experienced only as a titanic question that evoked awe and dread.  It was this question, I want to suggest, that stands at the beginning of modernity."  (15)

One feature of the book that was particularly enjoyable for me is Gillespie's emphasis on the poet Petrarch as the representative both of this struggle and of the turn toward nominalism (in graduate school years ago, Petrarch's poems about Laura in the Canzoniere were one of my favorite things).  I confess that before reading Gillespie's book, I had never thought about Petrarch as an important or even a notable figure with respect to these kinds of issues.  Gillespie devotes roughly a chapter and a half to him.  He claims that Petrarch was the first writer to face the nominalist challenge -- the view that "there is no divine logos or reason that can serve as the foundation for a political, cosmopolitan, or theological identity." (45)  Confronted with the political and social chaos of the mid-14th century, Petrarch looked "not to the city, God, or the cosmos for support, but into himself, finding an island of stability and hope not in citizenship but in human individuality."

I cannot do justice to Gillespie's superb treatment of Petrarch, but here's a relatively late summary paragraph in his discussion:

It is difficult today to appreciate the impact Petrarch had on his contemporaries in part because we find it so difficult to appreciate his impact on us.  Petrarch is scarcely remembered in our time.  There are very few humanists or academics who can name even one of his works; and none of his Latin works makes it on to a list of great books.  And yet, without Petrarch, there would be no humanists or academics, no great books, no book culture at all, no humanism, no Renaissance, and no modern world as we have come to understand it.  Why then have we forgotten him?  Several factors contribute to his oblivion: the neglect of Latin literature as literary scholars have increasingly focused on national literatures, changing scholarly tastes and fashions, and the fact that many of his works fall outside of familiar genres.  But the real cause lies deeper.  Petrarch seldom tells us anything that we don't already know, and as a result he seems superfluous to us.  But this is the measure of his importance, for what he achieved is now so universally taken for granted that we find it difficult to imagine things could have been otherwise.  (69)

One last side note, and please forgive the musical addendum, but Franz Liszt certainly did not forget Petrarch.  Have a listen to his extremely beautiful song cycle, "Les Années de Pèlerinage" ("The Years of Wandering" -- which is just what Petrarch did for most of his life), and particularly Year 3 in that cycle ("en Italie"), which contains some wonderful settings of several Petrarchan sonnets.  Number 47 is really spectacular and, maybe, captures a little of what Gillespie is talking about.

September 11

Friday, September 7, 2012

Science Debate 2012

A friend of mine, Shawn Otto, directs "Science Debate," an effort to engage the presidential candidates on important scientific issues that affect our future well-being.  This year's installment can be read here.  Though the candidates differ on some of the issues, reading their responses shows that the the caricature of the Dems as "pro-science" and the GOP as "anti-science" fails to do justice to the debate.

Caroline Kennedy: A “Catholic” Woman’s Concern for “Reproductive Health”

Caroline Kennedy addressed the Democratic National Convention last night (here) with these words:

As a Catholic woman, I take reproductive health seriously, and today, it is under attack. This year alone, more than a dozen states have passed more than 40 restrictions on women's access to reproductive health care. That's not the kind of future I want for my daughters or your daughters. Now isn't the time to roll back the rights we were winning when my father was president. Now is the time to move this country forward.

The innocuous rhetoric Kennedy chose to employ – “reproductive health” – cloaks the gruesome reality to which she refers.  It is a capacious enough term to include some things that genuinely concern the health of women – such as gynecological exams and screenings for uterine cancer.  But she does not mean this.  There is no effort by any political party to restrict women from obtaining gynecological exams!  Instead, the Democratic talking-point that Kennedy repeats – the refrain that numerous states have recently enacted numerous restrictions on “women’s access to reproductive health care” refers to restrictions on abortion (here and here). 

“Reproductive health” is the jargon employed by the people who favor abortion when they are leery about saying what they really mean, lest the barbarity of what they seek to protect is seen for what it is.  It is a term that proponents of abortion make use of to dupe those who aren’t paying attention but who might object if they were asked to support abortion on demand.

Caroline Kennedy is an intelligent woman, so it shouldn't be necessary to state the following.  But because we live in an era when even the obvious can be “fact checked” away, it makes sense to state it plainly once again.

The Church – the Catholic Church – opposes abortion.  Because an abortion – if it is successful – always results in the death of an innocent human being, the Church – the Catholic Church – sees abortion as a grave evil, a mortal sin, and a gross injustice.  Indeed, this is why the Church refers to abortion as “murder” (EV ¶ 58) an “infamy” (GS ¶ 27) and “an unspeakable crime” (GS ¶ 51).

Given this background, one cannot but be somewhat dumbfounded by Kennedy’s assertion that it is her Catholic womanhood that prompts her to oppose waiting periods, parental consent laws, and ultra-sound notice requirements -- laws that have the effect of discouraging abortion.  (I say “somewhat” because the motivation to portray the pro-abortion position as legitimate for a Catholic to adopt makes sense from a purely political perspective).  When “reproductive health” as Kennedy used it is correctly understood to mean support for abortion her statement in effect is: “As a Catholic woman, I take the freedom to murder a child developing in the womb very seriously, and today, it is under attack.”

This is bizarre.  If we didn’t live with the moral amnesia and denial that defines the age, Kennedy would be roundly mocked for making such a statement.  She would be laughed at for demonstrating a complete misunderstanding of the words used, for saying something as asinine and nonsensical as “As a Catholic woman, I take the freedom to exploit the poor seriously . . .”  or “As a Catholic woman, I take the freedom to discriminate on the basis of race seriously . . .” or “As a Catholic woman, I take the freedom to pollute the environment seriously . . .”

Here’s a bit of advice for Caroline Kennedy: Do us all a favor and drop the “Catholic woman” moniker when you’re out trolling for votes by arguing for abortion.  And do yourself a favor: Don’t wear “Catholic” as a badge on your chest until the true meaning of the word has found a place in your heart.  I can't see inside your heart, but anyone can objectively evaluate what you said in light of what the Catholic Church actually teaches, and the two do not fit together.  The Democratic Party stands for many things that are good and just, but being a "Catholic woman" is not the same as being a "Democratic woman" and it appears that you used the former when you meant to latter.  So before you again make use of your professed faith for political purposes, let me suggest that you return again to the Church’s teaching on human life and reflect on its meaning in American political life and in your life.