Bullies have been around for a long
time. Those famous who have a bearing on this posting include Henry VIII. I
mention Henry because the tactics he employed with the law have clear parallels
with the matter about which I shall discuss today. Sadly, tyrants—bullies—like Henry
don’t seem to disappear. The bully can be the thug who wants everything for himself;
the bully can be one’s co-worker, the executive, fellow student, or even the
professor who insists on things being done his or her way. Sometimes the bully
can be the public official who wants policies or laws to reflect a particular
constituency’s interests. The bully can also be the lobbyist-advocate who wants
more than that to which he or she is entitled by objective reason, equity, and
justice. In many contexts, what makes a person the bully is the belief that the
only thing which matters is what the bully thinks is right whether or not it is
right.
In this context, I recently read
with great interest Professor Donn Short’s SSRN manuscript entitled “Queering
Schools, GSA [gay-straight alliances] and the Law: Taking on God.” [manuscript
is available at SSRN and is here:
Download Short's Taking on God] Professor Short is an Assistant Professor of
Law at the University of Manitoba. Like many of us here at the Mirror of Justice, Professor Short is a
teacher of the law; moreover, he is against bullying—or at least a certain
kind. Nothing wrong with that initially, but as I continued to read his SSRN
manuscript, I wondered if this advocate against bullying might be the model of
a new kind of bullying which he finds not only acceptable but necessary.
The central theme of his essay to
which I refer appears to be a critique of claims for religion-based exceptions
to state-and-law mandated curricula for all schools. These curricula would
combat “unjustifiable curtailment of citizenship for queer people and would
undermine the equality gains that have been made by this group.” Throughout
this essay, Professor Short addresses equality, bullying, pressure on “queer”
students to conform to “hetero-normativity”; moreover, in his presentation he contends
that the “arguments against equality claims for queers are pretty much
exclusively and overtly religious in nature.” However, he does not cite the
evidence upon which he bases this claim. In addition, Professor Short does not
define what he means by “equality” nor does he acknowledge that many
counterpoint arguments made by religious and non-religious people alike who
disagree with his perspectives are not “overtly religious in nature.”
At this site, I have argued the importance
of equality on many important and fundamental fronts, but I have also pointed
out that people are not equal in many ways (hence the basis of human diversity
and pluralism about which we hear so much)—and one of those ways treads upon
the subject matter of Professor Short’s essay, human sexuality.
To cut to the chase, Professor
Short advances the position that the law is to be harnessed in order to control
the “transformative possibilities” of education and in order to establish the
“comprehensive queering of schools.” While he uses the existence of bullying
students who claim to be “sexual minorities” as the pretext, his real ambition
is to ensure that there is no exception to his plan for a uniform education
that embraces the model of human sexuality which he champions. The purpose of
his essay is to target the Catholic Church and the schools which she supports
and directs and to make the Church and her institutions bow to positions that
are antithetical to the faith.
Furthermore, Professor Short
asserts that there is a “mistaken belief” amongst “religionists”—especially
Catholic institutions—that Church institutions can “ ‘run their own show’ ”. He
is lucid in his condemnation of Church institutions which do not reflect and
embrace his views when he asserts that “religious dogma in some way justifies
ignoring or indeed allowing the continue the harassment of queer students
within the Roman Catholic school system.” After identifying what he considers to
be the enemy of society, he offers a solution to this offensive predicament,
and it is the law—or more specifically, its commandeering by the interests that
he holds dear but which conflict with the objectively reasoned views of many of
his fellow citizens. By retooling the law according to this author, the ability
of the Church to decide matters that transcend the state’s legitimate interest
of ensuring that all educational institutions provide a sound, fundamental education
can be reined in. He is clear about his plan for state commandeering of all
education by retooling the law when he discusses “the need for well-articulated
ministerial intervention.”
But is this not bullying by another
name all for the cause of achieving “social justice for queer youth” at the
expense of religious freedom—a freedom that is textually protected by the law?
While he insists that his plan is
to demonstrate “the need to consider the law’s potential from a pluralist
perspective,” it is clear that Professor Short is interested in neither
pluralism nor diversity in education but tyrannical uniformity.
He is also not interested in
“inclusive education” as he states in his conclusion; rather, he insists upon
“anti-oppressive education” that will assure the “cultural transformation” upon
which he insists but is prevented by the existence of Catholic education in
Canada. It is clear that his objective is to target institutions which do not
reflect his view of human nature; moreover, he contends that his proposal will
rid the world, or at least Canada, of the sort of bullying that targets “queer”
students. As he asserts, “It is clear that the culture of schools must be
transformed.” This goal will be reached by altering the curriculum of every
school “to include queer content and to recognize queer families.” However, he
knows that his proposal requires the cooperation of the state and its juridical
institutions which possess the muscularity to close any institution, especially
the Catholic ones he has targeted, which fail to be transformed in his image.
But this is bullying, pure and simple.
Here I again rely on the warning of
Christopher Dawson that I have used several times before, but it seems all the
more necessary to recall Dawson’s prophecy pertaining to things like Professor
Short’s vision of transformative education. As Dawson said about sixty years
ago,
[I]f Christians cannot assert their
right to exist in the sphere of higher education, they will eventually be
pushed not only out of modern culture but out of physical existence. That is
already the issue in Communist countries, and it will also become the issue in
England and America if we do not use our opportunities while we still have
them.
Although Dawson was speaking about
higher education, his point is applicable to primary and secondary education as
well be it in England, the United States, Canada, or elsewhere. The bully is
once again on the school yard, but this time his target is those whom he considers
as bullies but are not.
RJA sj
Tuesday, January 15, 2013
The Chief Rabbi of Rome has joined his voice to the voices of the Grand Rabbi of France, French Muslim leaders, and the Pope on the question of marriage: http://chiesa.espresso.repubblica.it/articolo/1350402?eng=y
There are certain experiences that pull me backwards into history, making me think about how much I have in common with past generations: really focusing on the constellations always makes me think of the ancients who named those clusters of stars; crossing the Rockies in an airplane always makes me think of the pioneers who took months to cross them by foot; staring down into the Grand Canyon always makes me think of the generations of people who did the same.
The NYT published an article this past December that has been haunting me since I first read it, with the same sort of thoughts: Ancient Bones that Tell a Story of Compassion, by James Gorman. It focuses on archaeologists who are studying prehistoric skeletons showing evidence of significant illness and disability, and drawing conclusions about the kind of care their communities must have provided to allow them to survive. Some examples from the article:
- a "young man who lived 4,000 years ago in what is now northern Vietnam . . . laid to rest curled in the fetal
position. . . . His fused vertebrae, weak bones and other evidence
suggested that he lies in death as he did in life, bent and crippled by
disease. They gathered that he became paralyzed from the waist down before adolescence, the result of a congenital disease known as Klippel-Feil syndrome.
He had little, if any, use of his arms and could not have fed himself
or kept himself clean. But he lived another 10 years or so. They concluded that the people around him who had no metal and lived by
fishing, hunting and raising barely domesticated pigs, took the time and
care to tend to his every need."
- a "Neanderthal, Shanidar 1,
from a site in Iraq, dating to 45,000 years ago, who died around age 50
with one arm amputated, loss of vision in one eye and other injuries.
Another is Windover boy from about 7,500 years ago, found in Florida,
who had a severe congenital spinal malformation known as spina bifida,
and lived to around age 15. D. N. Dickel and G. H. Doran, from Florida
State University wrote the original paper on the case in 1989,
and they concluded that contrary to popular stereotypes of prehistoric
people, 'under some conditions life 7,500 years ago included an ability
and willingness to help and sustain the chronically ill and
handicapped.' "
And this somewhat macabre, but I think somehow very touching bit of speculation:
- "A skeleton of a young woman about 18 years old
from a site on the Arabian Peninsula more than 4,000 years old
indicated that the woman had a neuromuscular disease, perhaps polio. “Her condition likely made it difficult for her to walk,” Dr. Martin
wrote in an e-mail. “She had exceedingly thin arm and leg bones with
very little buildup of normal muscle attachments.” She probably received
round-the-clock care, Dr. Martin concluded. But one problem that she had was apparently not a result of the disease.
The teeth that she had were full of cavities, and she was “missing
teeth from abscesses and periodontal disease.” Those who cared for the young woman may have been too kind, Dr. Martin
said. Her people grew dates, and, “Perhaps to make her happy, they fed
her a lot of sticky, gummy dates, which eventually just rotted her teeth
out, unusual for someone so young.”
This weekend in New York City I'm going to be exploring this universal human impulse to care for the disabled, and how it persists despite the anthropological premises of modernity that seem to be conspiring to quench it, at the "New York Encounter" sponsored by the Catholic movement Communion and Liberation and the Crossroads Cultural Center. (I'll be exploring some of the ideas developed in this recent article, Hauerwas and Disability Law: Exposing the Cracks in the Foundations of Disability Law, and how they illustrate the application of the notion of elementary experience developed by Fr. Luigi Guisiani, the founder of the CL movement.) Here's the program for the entire three-day cultural festival, with the theme "Experiencing Freedom" -- including talks, music, theater, exhibits on G.K. Chesterton and Freedom and the Cristeros: The Martyrs of Mexico. It's all free and in the heart of Manhattan.
A few new contributions to the ongoing debate about the wisdom, justice, and legality of the HHS contraception-coverage mandate. Marybeth Hicks urges us, here, to "stand with Hobby Lobby," and in so doing to "rally around a Christian family whose religious liberty is being infringed." In Commonweal, my Notre Dame colleague Cathy Kaveny argues that it is a mistake to contend, as some of the mandate's opponents do, that the mandate objectionably "defines religion," when in fact, she says, it "define[s] exemptions to the mandate applicable to institutions that certify themselves as religious, while balancing competing concerns in light of the purposes of the particular law [it is] implementing." At Distinctly Catholic, Michael Sean Winters replies to Kaveny, and re-iterates his case against the mandate:
[T]his fight has always been about the integrity of our Catholic institutions. They may govern themselves badly or govern themselves well, but they should be permitted to largely govern themselves. They will be different from their secular counterparts, to be sure, but why is homogenization a good thing? I thought liberals liked diversity? There are certainly overriding government interests that should bind religious institutions: They should not be able to discriminate on the basis of race, after all. And, protecting women’s health is, like preventing racial discrimination, and clear and compelling government interest. But, there are easy alternative methods for meeting the compelling government interest of providing free access to contraception and I do not discern any such corollary in terms of preventing discrimination. HHS could, at very reasonable expense, provide this coverage to women who work at exempt institutions through the exchanges that are being set up, or through a government website. In fact, devising such an alternate route would achieve what women’s groups say they want, universal coverage, which is something that they do not have now and will not have under any iteration of the final rule. It is vital that the decision makers in the White House see this: Instead of fighting over the scope of the exemption, they should be finding a way to keep a robust exemption and deliver the desired coverage by a different means.
Kaveny's piece also connects with this essay, from Public Discourse, "The Religious Liberty Case against Religious Liberty Litigation," by another Notre Dame colleague, Phillip Munoz. It's worth re-reading.
I agree with Cathy that, in a pluralistic society, the project of accommodating religion is more challenging than it would be in a homogenous society. In some cases, religious objectors cannot be accommodated, consistent with the common good. In this case, though, it seems to me both that (a) on the merits, the mandate does not advance the common good and (b) even if it did, the government could easily accommodate -- and therefore should accommodate (and also, in my view, is legally required to accommodate) -- those who object to it for reasons of religious conscience or religious institutional character.
I am also inclined to agree with Cathy that the claim that the mandate is wrong because it "defines religion" is not entirely right, or is at least more complicated than those making it sometimes make it sound. After all, if one has a legal regime -- as we do -- that singles out "religion" for distinctive treatment (see, e.g., the First Amendment, but also RFRA and various tax-law provisions) one has no alternative to defining, for particular purposes, and not necessarily in an all-encompassing or grand sense, "religion." That said, the exemption-eligibility definition -- whether in the mandate context or in another -- does and will reflect certain premises and judgments about religious practices, traditions, beliefs, and believers, and those premises and judgments can be more, or less, appreciative of religious faith, religious conscience, and religious institutions' freedoms. Here, they are not appreciative enough, in my view.
Here (HT: Distinctly Catholic) is a really good post by Bishop Daniel Flores, of Brownsville (who, among other things, is a member of the USCCB's Ad Hoc Committee on Religious Liberty). It's tempting -- maybe it's even easy -- for those of us who have been, in one way or another, "involved" in the pro-life movement for decades, to think that, really, it's over. "Sure," we might say, "we can bear witness to the wrong of Roe, and maybe secure some small legislative and judicial improvements at the margins, but the world is what it is, and the abortion license is here to stay." Bishop Flores urges us to remember that "it doesn't have to be this way", and uses my daughter's favorite book (this month), The Hunger Games:
In the trilogy the Hunger Games, the author Suzanne
Collins presents a stark world where the mesmerizing power of death is clearly
displayed. Death has become a game designed to entertain everybody and control
everyone. There are characters in the story who are the innocent victims of the
power that makes death into a game and a means of control. The principle
victims are children. Bizarre as the set up of these novels is, it is not
unthinkable that the world could reach a stage where death is accepted as a
spectacle, where the powerful use children as pawns to create a manipulative
diversion ultimately aimed at maintaining power and control. I am no literary
critic, just a reader, and some of my literary friends find the books painfully
discouraging. But I see little glimmers of light in the tail. I am convinced
the author is looking to tell the reader that it doesn’t have to be this way;
death does not have to win. Despite the unleashing of the full mesmerizing
power of death to blind an entire people to the goodness of life, the social
order rooted in the teeth of the dragon -- so to speak -- does not triumph in
the end. The conclusion does not show us a final victory in favor of life, but
it does show the reader that small moments of heroism, rooted in love and in
the resiliency of the human conscience can set the stage for a better way.
There is a lesson here for us. We are here to say, ‘it
doesn’t have to be this way." We don’t have to sacrifice an unborn child
for somebody else to be happy. We don’t have to let utilitarian criterion
govern all the decisions we make in nation, our families and in our homes. It
takes a heroic, a courageous breaking-through and waking-up, though, to break
the spell that death can weave in a world that so easily falls into the
attitude that says “well this is how the game works; death is in charge.” But
it doesn’t have to be this way. When Blessed Pope John Paul II called us to build
a culture of life, he was calling us to give witness to the fact that life
triumphs over death and that it is possible to build a civilization where
society acts in favor of the goodness of life, from the unborn child to the
aging person who is dying of a terminal illness.
As we plunge into the new academic semester, we may confront
once again the question of what is it that Catholic law professors along with
all other Catholic teachers are supposed to be doing (in addition to developing
Catholic legal theory, of course!)?
Recently, Archbishop Charles J. Chaput, OFM Cap. of
Philadelphia offered some helpful insight to formulate a response to this
question when he addressed the national convention of the Catholic Campus
Ministry Association. [His address entitled “Young Adults and the ‘Secrets of
the Heart’” is here] Importantly for those of us who teach the law, he relied
in part on the illustration of the relationship between Saint Thomas More and
his daughter Margaret Roper.
The archbishop does not waste time by pointing out the
connections between the role of all educators, the Catholic faith and discipleship,
and the challenges presented to these first two matters by the contemporary
age. He offers his own and the thoughts of others on the challenges which are
presented in the cultural climate of the present age. I would like to offer a
further matter which students, parents, pastoral ministers, and teachers who
claim to be disciples of Jesus Christ need to consider in their roles in
educational formation. The matter involves the question of life: what’s it all
about? Of course, this question needs some nuance involving subsidiary or
related issues including but not limited to: what is the purpose or objectives
of human existence; what is at the heart of relationship; what is love; what is
the goal of education; should norms be a part of human existence and how and by
whom are they to be formed; who is God; what is the nature of the human person;
and, how does the human person know if there is a right and a wrong, and if
there is, how is it to be determined? Again, I state that these are not the
only questions which any educator ought to think about, but they are surely
some which the Catholic educator needs to consider.
I, for one, will do my best to assess how my syllabi for the
current semester take account of the issues raised by Archbishop Chaput and the
brief complementary remarks that I have offered here today.
RJA sj
Monday, January 14, 2013
Professor Martin Krygier’s description of and argument for “Law as Tradition” began with a claim about law’s pastnesss, but the bare fact of pastness cannot be the end of the story, because much of the past does not figure in any tradition at all. The second feature of law as tradition that Krygier discusses is law’s “authoritative presence,” and it involves the normative force of the past on the present — when the past, real or imagined, is thought to be of continuing significance to the present (hence the double sense of “presence” in Krygier’s phrase — as meaning both existence and present-ness). For this reason, law’s traditionality is reflected not only in the pastness of its present, but in the presence of its past — “the extent to which only the presently authoritative past is treated as significant and only to the extent of this present authority.” (248) This “presentism” is often heard as the complaint of the historian, but it functions to distinguish the work of the historian from the work of the lawyer:
In seeking to explain ‘Why the History of English Law is not Written’, Maitland suggested that one reason was the lawyer’s peculiar attitude to the legal past:
what is really required of the practising lawyer is not, save in the rarest cases, a knowledge of medieval law as it was in the middle ages, but rather a knowledge of medieval law as interpreted by modern courts to suit modern facts.
Applied to legal history itself, this attitude to the legal past has frequently led to history-as-genealogy or, as the American historian Daniel Boorstin has written, the considerations of legal history as ’an alchemy for distilling legal principles’ . . . . A similar complaint has recently been made by Douglas Hay [in an essay on criminal prosecutions in England and "their historians"]. When it comes to thinking about the past, one characteristic of ’thinking like a lawyer’, Hay argues, is what historians call ‘presentism’; ’the fallacy of working from present concerns to past origins, is anathema to historians, but necessarily half the lawyer’s method’. What appears to historians as bad history is simply typical of the behaviour of participants within a tradition. Whig interpretations may be unsuccessful history, but they are often very successful law.
When participants in a recorded tradition consult its records, they are rarely concerned to reconstruct the past wie es eigentlich gewesen ist [as it is in actuality]. All developed legal systems, for example, produce rules of statutory interpretation which prescribe and circumscribe the resources on which a lawyer may draw to interpret statutory provisions. A point little remarked upon by lawyers is that these are not rules for which an historian seeking to analyze the origins and purposes of a statute would have much use. Even if he could make sense of the notion of the ‘intention of the legislature’, for example, no historian seeking it (or them) on a particular matter would feel bound to limit himself to the sources or kinds of inference allowed to a judge by whatever rules of statutory interpretation prevail in a particular jurisdiction. Nor should he believe he had found the intentions he was looking for if he did so. An historian, qua historian, is an outsider to the internally authoritative traditions of law, even though he may need to be an empathic outsider. A lawyer is bound to invoke legal rules of interpretation, not because he is an inferior historian, but because, qua lawyer, he is not an historian at all. He is a participant in a legal tradition, for whom statutes are primarily important not as sources of clues to events in the otherwise hidden past, but as authoritative materials from which meanings must be extracted by authorized means, to enable responses to present problems to be fashioned; or at least to be publicly justified to other cognoscenti of the tradition. (248-50)
This should be great. Much better than Cats. Coming soon to Oxford's Keble O'Reilly Theatre:
AN ALL-SINGING, ALL-DANCING ROMP THROUGH 2,500 YEARS OF POLITICAL PHILOSOPHY
A new musical by Eylon Aslan-Levy, Ramin Sabi & Tommy Peto
In order to draw inspiration for his magnum opus, John Rawls travels back through time to converse (in song) with a selection of political philosophers, including Plato, Locke, Rousseau and Mill. But the journey is not as smooth as he hoped: for as he pursues his love interest, the beautiful student Fairness, through history, he must escape the evil designs of his libertarian arch-nemesis, Robert Nozick, and his objectivist lover, Ayn Rand.. Will he achieve his goal of defining Justice as Fairness?
The world’s first feature-length musical about political philosophy will showcase a script steeped in drama, humour and romance - with a musical score that covers everything from rap battles to power ballads. "A Theory of Justice: The Musical!" will be a light-hearted, tongue-in-cheek, camp and intellectually profound addition to the musical theatre canon.
More information is available here.
