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, April 26, 2013

Gone With the Wind

 

In David O. Selznick’s classic film about the American Civil War, one of the principal characters, Scarlett O’Hara, engages the Tarleton brothers with the following dialogue:

 

Scarlett: Fiddle-dee-dee! War, war, war; this war talk’s spoiling all the fun at every party this spring. I get so bored I could scream. Besides... there isn’t going to be any war.

Brent Tarleton: Not going to be any war?

Stuart Tarleton: Why, honey, of course there’s gonna be a war.

Scarlett: If either of you boys says “war” just once again, I’ll go in the house and slam the door.

Brent Tarleton: But Scarlett, honey...

Stuart Tarleton: Don’t you want us to have a war?

 

Of course there was a war, and it was, like most wars devastating and took tragic tolls on human life even though many Americans characterized by the Tarleton brothers may have initially welcomed the conflict.

Rick has just brought to our attention another report about another grave conflict in the United States by focusing on the American President’s address before Planned Parenthood in which Mr. Obama defended once again what now are called “rights”—the right to take an innocent human life. The President employed rhetoric, “an assault on women’s rights,” to critique those organizations and states who prepare and execute policies designed to regulate abortion. [President’s entire address is HERE]

Real wars involving real assaults against innocent civilians do bring casualties to the conflict. What the President failed to do in his speech before the members of the Planned Parenthood organization was to identify the real victim of abortion politics and the ensuing conflicts emanating from these politics, the over fifty million young Americans whose lives have been snuffed out by the very “right” he champions.

If he were really interested in discussing and debating the real casualties of the conflicts over abortion with the alleged right he defends so freely and enthusiastically, he should have mentioned the deaths of our young brothers and sisters who have been the real casualties of the abortion wars.  But instead, the President defended women’s questionable Constitutional rights, but he did not mention that there are other ways of protecting their authentic rights with moral legitimacy—that there are other ways of avoiding assaults on the authentic rights of women. Rather, he allowed the sacred memory of the victims of abortion to be forgotten. Sadly, he chose not to speak about them or the rights which objective reason grants to them. Why? Well, after all, they, too, like the subjects in Selznick’s film are gone with the wind.

 

RJA sj

Fighting for abortion rights "right there . . . every step of the way."

The Star-Tribune reports:

President Barack Obama vowed Friday to join Planned Parenthood in fighting against what he said were efforts across the country to turn women's health back to the 1950s.

Obama's comments were the first by a sitting president before the abortion-rights group. He lauded its nearly 100 years of service to women, providing cancer screenings, contraceptives and other health services. . . .

He encouraged those gathered to continue fighting for abortion rights. "You've also got a president who is going to be right there with you, fighting every step of the way," Obama said.

The President, it is often pointed out, taught constitutional law.  And so one has to assume that he knows that it's a bit of a stretch to suggest that there is afoot an "orchestrated and historic effort" to return birth-control and abortion-related policies "back" to the 1950s. 

He does not need to be re-elected; would it be so hard for him to say -- how refreshing it would be for a politicians to say! -- "look, before the Roe decision, questions about whether and how abortion should be regulated were decided through politics; Roe and Casey, on the other hand, constitutionalized the issue -- remember, I taught constitutional law -- so that many regulations of abortion that would enjoy political support in some states are nonetheless off the table.  In my view, that's a good thing, because a woman has a fundamental right to abortion, and fundamental rights should be removed from politics.  But, some people disagree with me.  Some think abortion should be more closely regulated, because they think the unborn child is a human person who is entitled to the law's protection.  And, some think that the law should generally allow, and even subsidize, abortions, but not because the Supreme Court says so.  I think I'm right, and these other people are wrong."

UPDATE:  Here's a good post by Michael Sean Winters, addressing the same speech.  Among other things, he says:

  In the days after Benedict’s resignation, I got a call from a producer at a television talk show. She wanted to know if the cardinals might elect a new pope who would “take a more liberal position on issues like abortion.” I replied that the Church already has the liberal position on abortion: We stand up for the person who has no voice.

Garvey on "Endorsements and Academic Freedom"

My friend and former colleague John Garvey (CUA) has a good piece at Touchstone, called "Endorsement & Academic Freedom."  In the essay, he works through the various questions that arise when one is trying to figure out what, say, inviting a speaker or conferring an honorary degree means or communicates.  (I wrote an essay, a little while back, on a similar topic.  It's called "Whom Should a Catholic University Honor?  Speaking with Integrity", and can be downloaded here.)  And, he points out the . . . uneasy fit between the view, on the one hand, that "giving an honorary degree to someone does not at all suggest endorsement of that person's views" and, on the other, the view that universities should deny recognition to, say, religious students groups becauses recognition would suggest endorsement of such groups' exclusionary practices.  And, running throughout the piece is the important theme that Garvey has promoted and defended elsewhere, i.e., "institutional pluralism."  

In the name of toleration, I shall not tolerate YOU

Micah Schwartzman and Rich Schragger have a new paper (here) arguing against the freedom of the Church.  They are especially unhappy about my own unvarnished defense of the Church's understanding of her divine right to freedom, and this leads them, ironically, to some impressive intolerance. Check it out! An insightful reader of the Schwarztman-Schragger paper sent me the following pertinent observation:  

"One not only can, but the Catholic Church always has, tolerated those who do not believe in God’s whole truth. It is the liberal fundamentalist who cannot tolerate those who disagree with him. The fatuity of liberal fundamentalism is that it consists, often enough, in saying 'tolerate the intolerable or else, in the name of toleration, I shall not tolerate you.' Liberal fundamentalists add hypocrisy to error."

"Protecting Same-Sex Marriage and Religious Liberty"

Doug Laycock and I have posted a short essay with the above title, published in the Virginia Law Review's online format, drawn from the brief filed for the American Jewish Committee in the current marriage cases.

Thursday, April 25, 2013

It's a Miracle!

.....well, not officially, yet, but, still........

Pope Wojtyla

Berger on American Civil Religion and the Boston Marathon Bombings

Peter Berger has a very smart column describing both the shortcomings and the advantages of American civil religion, as expressed and manifested in the rituals and ceremonies after the Boston Marathon bombing.  A bit:

Soon after the bombings a makeshift memorial was spontaneously put up. A Globe article described it as “an eclectic collection of crosses, candles, teddy bears, medals, running shoes, and hundreds of other personalized items that reflect a common sorrow.” I don’t know when or where this practice originated, but it has occurred on other occasions of shared grief, for example following the death of Princess Diana. There were a few overtly religious messages inserted into the display, but the memorial as a whole had a clearly ritual, quasi-sacral character. People were coming and going, stood quietly in an attitude of prayer, wrote messages. A six-year old girl laboriously wrote a message saying “We love you so much!”. That was the major theme—expressions of affection for the victims. Then there were affirmations of resolve against violence, and expressions of the intent to run again in next year’s Marathon. Sacral ritual or not, no denominationally specific religion was visible here . . . .

The opening address at the Cathedral service was delivered by the Reverend Liz Walker, a Presbyterian minister. I was struck by the following passage: “How can God allow bad things to happen? Where was God when evil slithered in and planted the horror that exploded our innocence?” She said that she had no answer, and added, “But this is what I know: God is here, in the midst of this sacred gathering and beyond.”

I would not be misunderstood: I have no problem whatever for a minister not knowing “the answer” to the age-old question of theodicy. After all, I co-authored a book with the title In Praise of Doubt—by definition, I think, faith implies an absence of certainty—I don’t have to believe what I know. But that is not the point here. The point is this: The faith that Walker represents does have an answer, centered on the redemptive process inaugurated by the Incarnation and Resurrection of Jesus Christ, culminating on that Day of Judgment when all evil will finally be punished. But what is more: She could not (whether in tones of certainty or not) explicate this answer in the context of this service. Once again, I would not be misunderstood: I have no criticism of Walker’s reticence about the Christian faith she is supposed to represent. It would have been inappropriate here for her to come out with overtly Christian (let alone with Protestant or, if such there are, Presbyterian) references.  But it is useful to reflect about the relation between any specific faith and the civil religion affirmed in this service . . . .

Grace Davie, a British sociologist, has written about the way in which established churches, in moments of collective grief, become the official mourners of the nation, even though only a minority of citizens worship in their services. The Church of England played this role at the funeral of Princess Diana, as did the Lutheran Church of Sweden (it has recently been disestablished) when the cruise ship “Estonia” sank in the Baltic Sea and a large number of Swedish tourists perished. The United States of course has no state church, but all the denominations together serve to legitimate the civil religion that can be embraced by all citizens.

This is a very distinctive American version of the separation of church and state, a quite strict legal separation, yet with diverse religious groups noisily present in public life. I think that, by and large, this has been a very successful arrangement. It presupposes that a religious group, when it enters public space, must translate its commentaries into terms that can be understood and debated by all citizens, most of whom will not be members of the particular group. Put differently, if one wants to persuade fellow-citizens in public space, one must employ a secular discourse. That discourse does have a moral foundation, the value system of the “American Creed”. Adherents of this or that specific faith may find these values more vague, even superficial, than the ones derived directly from faith, and they themselves may understand their allegiance to the Creed in terms specific to their faith. Thus the secular discourse of the public space coexists with the plurality of specific (if you will, “sectarian”) religious discourses.

I wonder about Berger's point about translation, which reminds me a little bit of Rawls's proviso.  It may be more accurate to say that the specific religious discourses not only coexist with the civil religion, but themselves also somehow constitute it.  That could be compatible with believing that the whole of civil religion is greater (and, of course, also less) than the sum of its discrete sectarian parts.  But it would also be compatible with rejecting the metaphor of translation.  Because, as Berger himself suggests, there are deep features of the specific traditions that do not translate (as in, for example, his remarks about theodicy) but may nevertheless in some way constitute part of the civil religion amalgam.

UPDATE: Here's an interesting comment on Berger and my reaction by Andy Koppelman.

Wednesday, April 24, 2013

Why should the Church care?

In a comment on a recent post reporting Archbishop Piero Marini's personal opinion on the desirability of civil unions for homosexuals, my colleague Ellen Wertheimer asks the following question:  "Why should the Church care" if homosexuals marry?  Prof. Wertheimer answers her own question, probably inadvertently. The answer: because the Church *cares* -- the Church CARES about the salvation of souls.  The issue of civil encouragement of homosexual union "affect[s] the Church" (to quote Prof. Wertheimer) because such union endangers souls inasmuch as it encourages and ratifies behavior that violates the moral order. Believe me, I *understand* that Prof. Wertheimer (along with many others) rejects the proposition that such conduct violates the moral order.  That contingent rejection, however, should not obscure the fact that when the Church encourages some social forms and denies the legitimacy of others, the work is always the same: to teach the truth about the moral order so that all can be saved (I Tim. 2:4). If Prof. Wertheimer (and others) were to *approve* of terrorism or torture or unjust economic structures, for example, obviously that approval would not properly operate as a reason for the Church to cease to *care* to condemn such conduct or conditions. The Church seeks to correct and transform the culture for the sake of salvation; the Church is not on the side of the grand coalition in favor of the status quo and of a world that increasingly denies Gospel truths.  Like any good parent, the Church does indeed *care*.  The Church is not a libertarian parent.  The Church cares about all of humanity, not just those who have already heard the Gospel and believed and been forgiven (over and over and over).   The Church cares because Christ cares about all of humanity.     

Tuesday, April 23, 2013

"Another Vatican voice backs civil unions for same-sex couples"

By John Allen

Another veteran Vatican figure has signaled openness to civil recognition of same-sex unions in the wake of similar comments in early February from the Vatican's top official on the family. It's a position also once reportedly seen with favor by the future pope while he was still Cardinal Jorge Mario Bergoglio in Buenos Aires, Argentina.

The latest expression of support for civil recognition as an alternative to gay marriage comes from Archbishop Piero Marini, who served for 18 years as Pope John Paul II's liturgical master of ceremonies.

"There are many couples that suffer because their civil rights aren't recognized," Marini said.

Marini, now 71, is currently the president of the Pontifical Committee for International Eucharistic Congresses. He spoke in an interview with the newspaper La Nación in Costa Rica, where the local church wrapped up a Eucharistic congress Sunday.

[Read the rest here.]

"The Blogger as Public Intellectual": A fun conversation with Paul Horwitz

Re-posting this: 

Notre Dame's Institute for Advanced Study is hosting this week an interesting conference on "public intellectuals" and, this morning, the featured paper was from MOJ-friend Paul Horwitz, whose topic was "The Blogger as Public Intellectual."  (For one blogospheric reaction to his presentation, go here.)  Paul was, as per usual, interesting and thoughtful.

I was the "commenter" (or "commentator"?) who followed Paul and I spent most of my time talking about and reflecting on the "Mirror of Justice" project / experience.  And, here's a bit of what I said:

What “stand outs” in my mind, about the “Mirror of Justice” effort – in addition to its relatively distinctive focus on Catholicism and law – is that it is both a “group” blog and one whose contributors disagree strongly about a lot of pretty important things.  There are, of course, lots of “group blogs” (pretty much every magazine has one), but I do think the range of views (and, again, of disagreement) about non-trivial matters is unusual.  As I see it, dealing with this disagreement has been for me the main challenge, but also the main reward, of the blog.

Our hope, when we started – and when we very deliberately assembled Catholic law professors from a variety of disciplines and from across the political spectrum – was the same one that University admissions officials cite when they do their work, namely, that the diversity would enrich the conversations that took place.  It did, and it has . . . but we’ve also fought a lot (and not only at election time).  Our arguments are, almost always, fairly regarded as “fights among friends”, but they happen “in front of” strangers, which is a bit unsettling (at least for me).  They flare up and are resolved “in public” – the sharp elbows are thrown, and the sincere apologies extended, “in public.”

And so, over the years, I’ve come to think of our role less in terms of “providing for the world a coherent Catholic legal theory”, and also less in terms of contributing to (or imposing on) the world various pieces of “public intellectualism.”  Instead, and precisely because the group is a relatively diverse one that is still united – tenuously, sometimes, but still united – by a sincere desire to live in friendship with Jesus and in communion with the Church – I’ve tended to think about what we do more in terms of “modelling.”

It seems to me that what we provide, or offer (or fail to provide or offer) to readers is not so much the discrete work product of a dozen “public intellectuals” as a conversation – an illustration or example – that is, depending on the day, more or less edifying and productive.  When I’m blogging now (and this was not always true), I’m thinking not so much of “my own” readership, the way I might if I were a regular columnist for the Washington Post, as I am of my students, and my fellow bloggers’ students, who might be thinking hard about what it means to have a vocation in the law and to aspire to integrate that vocation with one’s religious faith and traditions.

Whether we on the blog are talking or arguing about the election, or immigration reform, or the philosophical anthropology underlying and animating the law of torts, I find myself these days thinking less about the importance of persuading as about the “way the conversation is going.”  Don’t get me wrong: My fellow bloggers and I have views (often strong views) and we all want, I am sure, for those who disagree with us to yield to our superior arguments.  (We’re lawyers, after all.)  Still, and without being too polly-annish or precious, I have found myself in recent years more focused on the community-building and community-maintenance dimension of my blogging than on its evangelical or propagandizing aspects.