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, October 10, 2012

The Law and Politics

 

The law and politics are frequent companions even though they are not the same entity. Throughout the history of human made law, politics have often influenced what this law contains, says, and does. While human law is not immune from politics, the natural moral law is. Still, the natural moral law also influences or can influence the human law, and this principle is a part of Catholic social thought, something very much in the news these days. Of course, Catholic social thought also intersects the history of religious freedom. Both elevate human consciousness about the moral implications of issues which are at the center of today’s legal and political discourses, disagreements, and debates.

It is sensible and commendable that the First Amendment of the United States Constitution acknowledges the natural right of religious freedom and the additional natural rights of peaceful assembly and speech. I acknowledge that those with whom I disagree still have the same rights of religion, speech, and assembly which I claim. In a particular case, I also disagree with some of the content of the “On Our Shoulders” statement to which Rick referred earlier today. But still, I acknowledge their right to express their views even though I disagree with them on several bases that are founded on the Church’s teachings. But “On Our Shoulders” is not the only group that is active these days in proclaiming their take on religious freedom through acts of speech.

Another organization, Catholics United has once again become active in this election year. After reviewing many of their latest postings at www.catholics-united.org , I conclude that they are not committed to the same First Amendment principles that I am.

I have on previous occasions discussed the ability of Catholics, including ecclesiastical officials, to exercise their rights and responsibilities in educating the faithful about the moral teachings of the Church. HERE is one illustration from July of this year; here is ANOTHER from October of 2008. As I understand Constitutional law and Catholic social thought, it is crucial to the vitality of the natural rights that the First Amendment acknowledges that these folks with whom I disagree can offer their views on the important issues of the day. However, it is essential that other views that are grounded on objective reason and the teachings of the Church also be welcome in the public square. But some, like Catholics United, do not agree with my position as I have just explained it.

But today’s posting does not end here. Catholic United have initiated as one of their current campaigns the project to “Keep Politics Out of Our Pulpits”, and they have circulated an accompanying pledge seeking support for this project. The pledge is a simple but misdirected appeal to “protect the sacredness of our sanctuaries” “from partisan activity.” While the campaign acknowledges the “moral obligation” of Christians to engage in important public debates, it asserts that this public witness “must not involve using Church assets to expressly support or oppose candidates for elective office.” Well, that is what the law states, but I do not think that is what Catholics United are really concerned about anyone violated the Internal Revenue Code and accompanying regulations. As one looks beyond the pledge campaign of Catholics United and investigates their press releases, it becomes clear that this organization does not care for the teachings of the Church on neuralgic issues or for ecclesiastical officials posting reminders of Church teachings on an archdiocesan website. One of these neuralgic issues concerns the efforts to redefine marriage. Catholics United characterized one ecclesiastical official’s statements on the marriage issue as “far right politics” that “are driving an increasing number of Catholics away from the faith.” There is no mention in this strong critique of the bishop that he has a distinct responsibility to teach the faithful about these teachings and why the Church teaches what she teaches. The disdain which Catholics United has for those who disagree with them is patent. But I return to the pledge to keep politics out of the pulpit.

What would they say about the abolitionist preachers of the ante-bellum United States? What would they say about the Catholic clergy in Germany and the German-occupied states of Europe who preached against the rounding up of Jews prior to and during the Second World War? What would they say about Martin Luther King, Jr.’s sermons on issues dealing with civil rights? These were all matters dealing with political and legal issues of the day that were addressed in a Christian context by clergy. Perhaps Catholics United would respond to this history by stating that these statements were necessary and that is why Catholics United agree with the positions presented from the pulpit. Well, so is it necessary for Church officials to remind the faithful about today’s neuralgic issues, too. I wonder if Catholics United object to Church officials addressing issues from positions with which they, Catholics United, disagree? Perhaps that is why such speakers should be banned from the pulpit? If this is the case, the natural rights of freedom of religion, speech, and assembly must mean little or nothing to Catholics United. Is it conceivable that Catholics United might be contemplating yet another campaign? If so, might it be called: Rights for Me, but Not for Thee? But as you can see, this campaign was initiated during the last election, four years ago.

 

RJA sj

Tomorrow night's big debate!

No, not that one.  More like this one, only it's my pal Andy Koppelman and I on the question, "Is Religious Freedom in America at Risk," at the University of San Diego's Institute for Law and Religion.  (I get a teleprompter, Andy doesn't.)  More information is available here. In or near San Diego?  Come say "hello"!

Brague, "There's No Such Thing as a Secular Society"

On Thursday, at the University of Notre Dame, Remi Brague will be giving a public lecture, "There Is No Such Thing as a Secular Society," on Thursday, at 5:00 p.m., in the Hesburgh Library's Carey Auditorium.

Professor Brague is the recipient of the 2012 Ratzinger Prize (nicknamed the “Nobel of Theology”) and a veritable rock star of the academic world.  He is a professor emeritus at the Sorbonne and the Romano Guardini Chair at the Ludwig Maximilian University of Munich. . . .  The Nanovic Institute has been working to invite him to Notre Dame for several years, and this visit worked out on very short notice with the help of a graduate student in the right place at the right time.
This should be great!  More information is available here.

The "On All of Our Shoulders" statement

This statement, "On All of Our Shoulders:  A Catholic Call to Protect the Endangered Common Good", is signed by a number of Catholic theologians and scholars and it says a number of things that, in my view, are true and important.  That said, and at the risk of being dismissed, given yet another post about Ryan, as one of those "Republican Catholics who have been attempting to provide Catholic cover for the Ryan budget" (see Michael Sean Winters' discussion of the statement, here), I think the statement has some flaws and is disappointing in some respects.

First, the statement reminds readers, correctly, that the Church's social doctrine has a kind of unity, integrity, and coherence and that it needs to be engaged and applied in a way that is true to this fact about it.  Second, the statement notes, correctly, that Ayn Rand's "objectivism" is inconsistent with the Gospel, and that an excessively individualistic libertarian stance with regard to social-policy questions is not compatible with Christian moral anthropology or social teaching.  Third, the statement, correctly, insists that, even when it comes to questions regarding economic and social-welfare policy, some answers will plausibly cohere with Christianity and others will not.  "Prudence", as the statement says, "demands both knowledge of the principles of Catholic Social  Doctrine and honest attention to the details and realistic consequences of policies."  And, the five "principles" that the statement says are in danger of being "forgotten or distorted" are, indeed, fundamental principles of the Church's social doctrine that should not be forgotten or distorted. 

But, the statement also misfires, I think.  First, the statement, like much of the "Ryan is a Randian!!" business, overstates significantly the extent to which the policies that are being proposed -- and certainly the policies that have even a remote chance of being enacted, should Gov. Romney be elected -- are, in fact, "libertarian" (let alone Randian).  If programs and policies are described tendentiously, and contrasted with rival programs that are described idealistically, they will (no surprise) seem less compatible with Christianity.  This is important, because the political choice that the statement is clearly trying to inform has to involve, again, "honest attention to the details and realistic consequences of policies."  It is not, notwithstanding what is said by those who are trying to make this election about the extent to which Ryan's thinking has been shaped by Ayn Rand, really likely, given political and social realities, that, in a Romney presidency, we would see changes that can fairly be described as "radical" (or "draconian", or "cruel", or "gutting" . . . or Randian).  We might, though, spend several trillion dollars less, over the next ten years or so, and maybe improve the debt-and-deficits situation somewhat, and maybe reform (in a way the preserves them by making them sustainable) important (and expensive) social-welfare programs.

Relatedly, I think the statement overstates generally the influence in our politics of "Randian," or even "libertarian" thought.  The statement says, "We live at  time when the social indifference of libertarian thought is achieving broad  cultural legitimacy and political power.  This vision of the human person and society are fundamentally at odds  with the Gospel and the principles of Catholic Social Doctrine."  As I see it, though, the "libertarianism" that is operative in our politics is not a deep, philosophical individualism or "social indifference."  It's not a disciplined, "no government! tax is theft!" program, but just a sense, or mood -- a frustrated but sincere one -- that government at all levels is spending too much and doing too much in some areas (and not enough in some others).  "Libertarianism" can be "fundamentally at odds" with the Gospel, if it actually involves "social indifference" and lone-individual atomism.  And, some rhetoric on the political right today does seem to involve these mistakes.  More common, though, and more influential in reality (David Brooks' complaints notwithstanding), is a "libertarianism" (if it can be called that) that worries about the sustainability of our current practices, that is concerned about the liberal state's tendency and present-day efforts to crowd out civil society and illiberally impose a certain understanding of liberalism on mediating and religious institutions, that thinks its important to have judges and administrators who are faithful to the Constitution and appropriately respectful of the limits on their power, and that is entirely compatible "the Gospel and the principles of Catholic Social Doctrine."

Third, while the statement notes several times the Church's teaching on the dignity of the human person, and agrees that it is important for the Church's teachers to speak clearly on the issue of abortion, it does not, in my view, do enough to take advantage of what it clearly regards as an important "teaching moment" (my quotes, not the statement's).  It is the fact of Ryan's candidacy, and the fact of his Catholicism, that seems to make this, to the statement's authors, a "teaching moment," and yet the serious and glaring inconsistency between the Church's social teaching and the policies and views of the other Catholic candidate for Vice President are almost entirely ignored.  I realize that the statement's authors think that inconsistency has already been addressed, and is not in danger of being forgotten.  After watching and reading about much of the convention of the political party for which many Catholics will, as Catholics, enthusiastically vote, I think they are wrong to think this. 

In my view, a statement that aspires to be more than a partisan, day-before-the-debate intervention -- a statement that sees our "common good" as "endangered" and the unity and integrity of the Church's social teaching as being misunderstood -- would frame the "moment" as one in which both tickets include a Catholic.  It would, in addition to what this statement says, note to "liberal"-leaning Catholics attracted to the Democrats' social-welfare-spending policies that the Democrats' commitments and policies on abortion, religious liberty, and school choice -- and, for that matter, an indifference to the burdens we are imposing on future generations through our current spending practices -- are inconsistent with the unity of the Church's social teaching about the "common good."

First Amendment Nuggets: Inazu's New Piece and the Conclusion of the Richman/Crane Debate

Lots of great new stuff toward which to direct your attention.

First, check out our friend John Inazu's excellent new piece, The Four Freedoms and the Future of Religious Liberty.  The article continues John's illuminating work on the way in which the distinct freedoms enumerated in the First Amendment are being collapsed into a single, undifferentiated principle -- in this case, speech; in some of John's previous work, the freedom of association (and in particular its speech-y features).  I am, to put it mildly, sympathetic to the thesis that the contemporary impulse is toward collapsing rights and the values that underwrite them, rather than preserving their distinctiveness.  Here is the abstract:

The First Amendment’s rights of speech, press, religion, and assembly were once “interwoven” but distinct. Together, these freedoms advanced a pluralist skepticism of state orthodoxy that protected religious and other forms of liberty. The connections among these rights were evident at the Framing. They were also prominent during the 1930s and 1940s, when legal and political rhetoric recognized the “preferred position” of the “Four Freedoms.” We have lost sight of the Four Freedoms, supplanting their unified distinctiveness with an undifferentiated free speech framework driven by unsatisfying concepts like content neutrality and public forum analysis. It did not have to be this way, and it may not be too late to change course. This Article seeks to renew the pluralist emphasis once represented by the Four Freedoms.

The consequences of losing the pluralist vision are nowhere more evident than in the diminishing constitutional protections for religious groups, which are paradigmatic of the expressive, dissenting, and culture-forming groups of civil society. The Four Freedoms remind us that the boundaries of religious liberty have never rested solely in the First Amendment’s free exercise clause — religious liberty is best strengthened by ensuring robust protections of more general forms of liberty. But the normative effort to reclaim pluralism is not without costs, and it confronts powerful objections from anti-discrimination norms pertaining to race, gender, and sexual orientation — objections that cannot go unanswered.

Second, take a look at the conclusion of the debate between Barak Richman and Dan Crane on the issue of the application of the ministerial exception to the question of conservative Judaism and the hiring of rabbis.  Of particular interest, I thought, was each man's discussion of the respective "creep" that can occur -- either for the Establishment Clause or for the antitrust laws (and, as Barak says, on the former check out Mike Helfand's recent excellent work).  Barak's post is here; Dan's response is here.

Moral anthropology and the new evangelization

Here, at Whispers in the Loggia (HT:  Peter Nixon), is Cardinal Wuerl's opening address to the Synod of Bishops on the New Evangelization.  Like Nixon, I was struck by Cardinal Wuerl's emphasis on "Christian anthropology" -- an account of who and what the person is and what the person is for -- as a theological foundation for this new evangelization.  (See this essay for some thoughts of mine on Christian "moral anthropology".)   Here's a bit:

If secularization with its atheistic tenden-cies removes God
from the equation, the very understanding of what it means to behuman is
altered.  Thus the New Evangelization
must point to the very origin of ourhuman dignity, self-knowledge and
self-realization.  The fact that each
person is created in the image and likeness of God forms the basis for declaring,
for example, the universality of human rights. 
Here, once again, we see the opportunity to speak with conviction to a
doubting community about the truth and integrity of realities such as marriage,
family, the natural moral order and an objective right and wrong. . . .  The New Evangelization must rest upon
thetheological understanding that it is Christ who reveals man to himself,
man’s true identity in Christ, the new Adam. 
This aspect of the New Evangelization has a very practical meaning for
the individual.  If it is Christ who
reveals to us who God is and, therefore, who we are and how we relate to God,
then God is not remote or distantly far off. . .

Tuesday, October 9, 2012

Inviting people in religion B to join religion A if they actually believe the teachings of A and don't believe the teachings of B

Regular MoJ readers know that I'm an advocate and practitioner of ecumenical and interfaith dialogue and cooperation. I believe that persons, including leaders, of different traditions of faith should treat each other, and each other's faiths, with respect and look for opportunities to work together to uphold and advance values they hold in common. This does not require pretending that there are not important differences between faiths. A fruitful ecumenism cannot be founded on religious relativism or indifferentism. Nor need ecumenical and interfaith partners refrain from criticizing teachings of each other's faiths with which they strongly disagree. There are respectful, civil, and entirely appropriate ways to do this.

I raise these points in light of the goings on in San Francisco regarding the appointment and installation of Salvatore Cordileone as Archbishop. The city's Episcopalian bishop "welcomed" the new Archbishop with (how shall we describe it?) a rather pointed open letter implicitly, but very clearly, characterizing Catholic teaching on sexual morality and marriage (and, perhaps, on abortion as well, though that is a little less clear) as "repression," and implicitly characterizing the Archbishop himself, who is a strong defender of marriage, chastity, and the sanctity of human life, as an oppressor.

Well, it is San Francisco.

And we are talking about an Episcopalian bishop.  It’s not exactly news that some bishops of the Episcopal Church (remember John Shelby Spong?) long ago traded classical (biblical, natural law) Christian moral ideas for the timeless doctrines of the Summer of Love.  In response, many faithful Episcopalians have jumped ship to become Catholics, Eastern Orthodox, or Evangelicals, or formed break away churches within the Anglican communion, sometimes under the authority of bishops in Africa and other places where traditional Christian moral beliefs remain intact.

Evidently, the San Francisco Episcopalian bishop believes that “turn-about is fair play.” In his open letter, he invites left-wing Catholics who reject the Church’s moral teachings to join the Episcopal Church.  Some Catholics seem to have been offended by this invitation.  I’m not one of them.  Quite the opposite.  I don’t much care for the Bishop’s manners; and I certainly don’t share his moral views; but I think it is entirely natural and reasonable for someone who strongly believes something to invite others to believe it. And it is even more natural and reasonable for someone in religious community A to invite people in religious community B who do not believe the teachings of B but do believe the teachings of A to leave B and join A. That, it seems to me, is precisely what Pope Benedict did in establishing the ordinariate for Anglicans who wish to join the Catholic Church while retaining certain aspects of their Anglican heritage.  Perhaps the San Francisco bishop could create a special community for Catholics in the city who wish to become Episcopalians, but who want to hang on to, I don't know, folk masses and Teilhard de Chardin reading groups.

Just a suggestion.

Florida voters have a chance to reject bigotry and Blaine

That's not how the New York Times and the state's teachers union see the matter, of course, but that's how it is.  According to critics, efforts to get rid Florida's originally-anti-Catholic constitutional provisions banning "sectarian" institutions from receiving public funds, and to bring Florida law in line with the First Amendment, seek to "soften the barrier between church and state."  Nonsense.

Great news about the Nobel Prize

Put aside (for now) justified complaints and doubts about some Nobel Prize winners.  The announcement that the Prize this year in Medicine is going to Dr. Shinya Yamanaka is great news, as Will Saletan explains.  Yamanaka (among other things) "showed how 'induced pluripotent stem cells' could be derived from adult cells and potentially substituted, in research and therapy, for embryonic stem cells."

The President, I hope, will revisit his earlier decision to overturn his predecessor's Executive Order promoting this sort of research.

Monday, October 8, 2012

"How Columbus Day Fell Victim to its Own Success."

Yoni Appelbaum explains, at The Atlantic.  Meanwhile, the Knights of Columbus help to celebrate the 100th anniversary of the Columbus Memorial Fountain in Washington, D.C.