I grew up in California, so very little surprises me. There are exceptions, however. During a recent stay in Berkeley, CA, I went to the Newman Center on a Monday, for Mass. The practice there at Newman Hall, of inviting the members of the congregation to voice, one by one, their own general intercessions -- a practice begun long before my happy and cherished law school days at Boalt (1990-93) but greatly 'utilized' during those years -- persists. On that Monday, one elderly, ardent, and articulate soul prayed, to my great astonishment, "for the conversion of Russia," and the sizable congregation replied, "Lord, hear our prayer."
Little about the Mass celebrated there at Newman resembles the Mass that included, after Low Mass, the Leonine Prayers, but the power of those prayers endures, as my recent experience demonstrates. The celebrant of the Mass on that Monday, Fr. Al Moser, who is 89 years old and whom I remember very fondly from the early '90s, breathes the presence of Christ. It's a joy to experience him celebrate the Mass, preach the Gospel, and share Holy Communion. I owe my relationship with Al Moser to Jack Coons.
During the same visit to northern California, I went to a parish in San Bruno, just south of San Francisco. There, posted (sic) in the vestibule, was a sign announcing "Price Increases." Baptism in that parish now *costs* more than it did before. Other sacraments also went up in price on that menu, in case you're wondering. I won't give you the numbers.
Like Patrick, I was surprised by
Jody Bottum’s claim that there is no coherent jurisprudential claim against
same-sex marriage (SSM). Since as early as 2000, a number of folks (on both
sides of the SSM question) have been willing to engage in discussion and debate
about the meaning of marriage. I am one of those members of this group, and I
am joined by colleagues and friends here at the Mirror of Justice who have been willing to discuss the meaning of
marriage in public forums.
Over these past thirteen years, a
number of us have continued to express our desire to engage those with
different perspectives on the nature of marriage and why the Church’s teachings
on this important institution of civil society are correct. What I have also experienced
is that there are supporters of SSM who are willing to debate the topic, but
there are some—perhaps many—who are not. It appears that for them there is no
need to discuss or debate: they are right because they are right and that’s all
there is to it; there is no need for debate. Period.
Mr. Bottum, whose writing I have
admired in the past because of his careful analysis and generally measured language,
has made a remarkable departure from his previous modusoperandi. Asserting
that contempt against the Church and its authorities is deserved, he contends
that the earned ridicule is based on “loony, pie-eyed judgment” leading the
Church and her shepherds “to engage in a sex-based public-policy debate they
are doomed to lose.” It seems that Mr. Bottum is of the view that the Church
has initiated this particular debate (if in fact there really is a debate), but
most of the time it is those whose radical and often totalitarian ideas raise
the subject of sex, sexual orientation, gender identity, SSM, etc. and, in
doing so, confound objective reason comprehending intelligible reality. But
these individuals for the most part are not interested in healthy democratic
debate because they are intent on foisting on the public “the things we share”
but really don’t share.
I can just imagine that if someone
who is opposed to the concept of SSM wrote and published essay employing the tone
sometimes used by Mr. Bottum in his Commonweal
essay, many would express outrage about the insensitivity and wrongfulness of
such an attack. Where is the outrage now? Should there be outrage? Mr. Bottum
and his supporters apparently do not think so.
Five years ago, I was invited to
present a paper at a conference on SSM. I know the conveners well, and they
labored valiantly to invite a balanced set of speakers with very different
views on the meaning of marriage to address the issue of SSM. Interestingly,
most of the SSM supporters who were invited to participate—all expenses paid—declined
the invitation. I was looking forward to engaging some of the SSM supporters on
the topics of equality and equal protection which are frequently employed by
SSM advocates to justify their position. Sadly, the several SSM supporters who
do rely on the equality argument, as I call it, chose not to attend and
therefore would not participate. I cannot speculate why they declined the
opportunity to engage me and others in discussion and deliberation, but it
struck me and others that they did not want to debate the subject on a level
playing field. Perhaps my impression is flawed, but I don’t think so. The hope
of the organizers of the conference was to have a spirited, honest, and
respectful discussion on “things we share,” but this aspiration was hindered.
Honest and open debate has always been an essential element of robust democracy
and the legal institutions essential to democracy. But recognition of this
point does not surface in Mr. Bottum’s discourse on things we Americans
presumably share.
Incidentally, some of my thoughts
on SSM and related matters, which I argue are coherent, have been presented earlier
at the Mirror of JusticeHERE, HERE, HERE, HERE, HERE, and HERE.
This brings me to another point
that I have already addressed on this site, and that is the emergence of a
problem addressed more than half a century ago by individuals such as Jacob
Talmon and Christopher Dawson. The problem is totalitarian democracy. For those
unfamiliar with the entity, it is a despotic form of governance that emerges
from the efforts of the members of a political and social elite who use the
forms of democracy to construct a political institution where there is no
departure from the unbridled will of the elite who are intent on controlling
most, if not all, aspects of public and even private life. Such a political
institution is contrary to the ideals of the American people and to which Mr.
Bottum pays lip service but not genuine commitment. I would very much like to
participate in the things that we presumably share with Mr. Bottum and with
those folks with whom I cannot agree on all counts. But I do not fear meeting
and engaging them in a respectful fashion which gets us closer to understanding
the truth of human nature and the desirability of the good over evil; virtue
over vice; and right over wrong. That is what democracy and the common good are
all about. However, the totalitarian democrat is interested in none of this
because the only thing that can be shared with him or her is that person’s view
and no other.
This is not good for the law of a
democracy, but, to borrow from Blessed John Paul II, it may be all right for a
thinly disguised totalitarianism that calls itself a democracy.
A recent it's-hard-to-know-what-to-call-it essay, mentioned still more recently on MOJ, contends that "there is no coherent jurisprudential argument against same-sex marriage." No coherent jurisprudential argument against same-sex marriage. Wow.
Is that a defensible contention? My view on the other side is summarized here. Lockeanism, fueled by neo-conservativism, leads to juridical recognition of same-sex marriage. I get it! The alternatives are stark. I credit the logic by which Bottum contends that being an American "first" (!!!) demands what Bottum then demands.
But why would any self-respecting soul want to be an American "first?" Probe Bottum's piece for the alleged reasons.
Joseph Bottum, former chief editor of First Things, has taken to the pages of Commonweal to state a Catholic's case for same-sex marriage.
In
this thoughtful and personal essay, Bottum states the position plainly:
"We are now at the point where, I believe, American Catholics should
accept state recognition of same-sex marriage simply
because they are Americans."
Bottum
also says there is no coherent jurisprudential argument against
same-sex marriage, and that it may be time for American bishops to stop
fighting the passage of laws that allow it. "Campaigns
against same-sex marriage are hurting the church, offering the
opportunity to make Catholicism a byword for repression in a generation
that, even among young Catholics, just doesn't think that same-sex
activity is worth fighting about.
"I find these practical considerations compelling," Bottum writes, "just as I think most ordinary Catholics do."
Further,
Bottum contends, the sexual abuse scandals have helped put the church
in America in "its weakest public position since the 1870s," when
thirty-eight states passed anti-Catholic amendments
to their constitutions. "[W]hat kind of loony, pie-eyed judgment,"
Bottum asks, "could lead the bishops to engage in a sex-based
public-policy debate they are doomed to lose -- feeding mockery of the
church while engaged in the process of losing that fight?"
[UPDATE: The "Beliefs" column in today's--Saturday's--NYT is about Bottum's Commonweal essay: here.
Let me add, while I'm at it, that calling Bottum's essay to the attention of MOJ readers does not entail that I concur--or that I do not concur--in all or part of the essay. My own position on the "jurisprudential" issue--more precisely, on the constitutional issues--is elaborated in my new book.]
My colleagues and I on the U.S. Commission on International Religious Freedom are working together across party lines to push for the full deployment of the tools provided by the International Religious Freedom Act of 1998 to pressure regimes that are gross offenders against religious liberty to ease up on the individuals, minorities, and sometimes even majorities whom they are persecuting. My Democratic colleague and dear friend Katrina Lantos Swett and I made the case this week in an op ed piece in the Washington Post:
"When the act was passed in 1998, it made the promotion of religious freedom an official U.S. foreign policy priority and established at the State Department an ambassador-at-large for international religious freedom. The legislation also created a bipartisan and independent U.S. Commission on International Religious Freedom, on which we serve, to monitor this right worldwide and make policy recommendations to Congress, the secretary of state and the president.
"Congress gave the legislation real teeth through a groundbreaking enforcement mechanism: requiring annual administration review and designation of “countries of particular concern,” defined as those governments engaging in or allowing “systematic, ongoing, egregious” violations.
"While the law provides the administration with flexibility in how it will pressure those countries, the review and designation process is not discretionary. The law requires it. Whatever one’s view of appropriate sanctions for violators, there can be little disagreement on the imperative of bearing witness to abuses.
"Unfortunately, neither Republican nor Democratic administrations have consistently designated countries that clearly meet the standard for offenders. The Bush administration issued several designations in its first term but let the process fall off track in its second. The Obama administration issued designations only once during its first term, in August 2011.
"The result? Violators such as Egypt, Pakistan and Vietnam are escaping the accountability that the International Religious Freedom Act is meant to provide."
I was fortunate to participate in an excellent panel at William & Mary yesterday, as part of the
wonderfully massive and variegated International Consortium for Law and Religion Studies conference in Virginia. The overall theme of the conference organized by the marvelous Cole Durham and Brett Scharffs was "Religion, Democracy, and Equality."
Our panel, moderated by Professor Mark Movsesian, was called, "Religious Symbols, Public Reason, and the State," and my co-panelists were Professor Perry Dane (Rutgers) and Professor Javier-Martinez Torrón (Complutense, Spain).
Perry's talk, entitled "Endorsement, Legal Reason, and the Misguided Quest for Reasonableness," was a penetrating and highly persuasive critique of the endorsement test. Perry sharply criticized approaches to law (not only in this context) that highlight feelings and sensibilities, and that ask judges to take on what he (channeling Philip Rieff) called "therapeutic" inquiries by reference to "reasonable" beliefs. He talked about endorsement in part in the context of the upcoming legislative prayer decision that the Court will hear in the new term. As a separationist--and, as I was very interested to learn, as Justice Brennan's law clerk during the term that Brennan dissented in Marsh v. Chambers--Perry was skeptical that he would approve of either the reasons for changes to endorsement that the current Supreme Court might make or the new direction that it might choose (he was specifically critical of the possibility that the Court will apply an originalist methodology).
I was second and presented my co-authored paper (with Kevin Walsh), "Judging Theory." The paper does not address law and religion head on, but it does so at an angle. The core claim of the paper is the comparative thesis that a judge's institutional and role-based self-understanding is more important in constitutional adjudication that the collection of ideas that commonly travel under the banner "constitutional theory." Kevin and I examine the extra-judicial (articles and books) and judicial writing (opinions) of two prominent judges--Judge Richard Posner and Judge J. Harvie Wilkinson III in several controversial and hot-button contexts (Second Amendment, partial-birth abortion, and the Establishment Clause (there's the law and religion!)) to make the claim stick.
Finally, Javier discussed religious symbols proper with a particular focus on Lautsi v. Italy. Javier argued that in the European context, where there is no mandated establishment provision that applies to all nations in the Convention on Human Rights, it is wrong to superimpose that mandate through other provisions (provisions guaranteeing equality, for example). Javier further argued--similarly to Perry--that legal claims cannot and should not consist in feelings of "difference" from the majority. As he put it, "What's wrong with being different?"
Footnote 1 of today's opinion of the Supreme Court of New Mexico in Elane Photography, LLC v. Willock says that "[w]e use the terms 'wedding' and 'commitment ceremony' interchangeably." That posited interchangeability is what allows the court to use the words interchangeably throughout the rest of the opinion, as in the quotable (and quoted) statement that, "when Elane Photography refused to photograph a same-sex commitment ceremony, it violated the [New Mexico Human Rights Act] in the same way as if it had refused to photograph a wedding between people of different races." But suppose that there is a difference between a wedding and a commitment ceremony, in that a wedding celebrates a marriage while a commitment ceremony does not. The analogy to inter-racial weddings is then obviously inapt, right?
Consider, also, the following: "Elane Photography is primarily a wedding photography business. It provides wedding photography services to heterosexual couples, but it refuses to work with homosexual couples under equivalent circumstances." Couldn't Elane Photography argue that the circumstances are not equivalent because the commitment ceremony is not a wedding because it does not involve a marriage? The argument would be that because a commitment ceremony is not a wedding, Elane Photography is not discriminating in the "wedding photography business."
That is the headline of this Boston Globe article from last week few days ago about the appointment and the rescinding of appointment of Bishop James Tengatenga of the Anglican Diocese of Southern Malawi as dean of the Tucker Foundation at Dartmouth College. I find it surprising that one often-astute observer of Dartmouth College affairs praises the college's new president, Philip Hanlon, for not flinching in pulling the appointment. It sure seems to me like he flinched. At least that's what I take away from the comments of the chair of the search committee, Professor Irene Kancades. According to The D's story today:
Calling the decision “bizarre,” Kacandes said reversing a provost and president-approved decision after a seven-month search might deter faculty from volunteering to sit on future search committees.
“The way that the accusations unfolded is something that we should be very alarmed about,” Kacandes said. “This man was tried in a court of partial public opinion, and it was not clear that people who wanted to weigh in could do so.”
Kacandes said she felt the strong reaction was perpetrated by a small group of students, blog posts and in emails between some faculty members.
Maybe there's more to the story, which I am viewing from a distance (though not as much a distance as students in Hanover, NH might view the statements of a Bishop in Malawi). But the way this unfolded is troubling. As an alumnus of Dartmouth and AQ, I appreciate now in a way that I did not appreciate as a student the benefits of the institutional independence of Aquinas House, the Catholic student center at Dartmouth, from the governance of the Tucker Foundation.
For more background: The college's statement on Bishop Tengatenga's initial appointment is here, a statement by Bishop Tengatenga on his views on gay rights is here, and a statement by Dartmouth's new President on rescinding the appointment is here. (See also this story from Episcopal News Service and this story from the Valley News.) Earlier news coverage about the controversy is available from the Valley News and Dartblog.
A perspective piece from Patheos, titled "Scapegoating Bishop James Tengatenga," concludes with a quotation from the Globe's coverage and the observations of an unnamed faculty member:
The fears voiced in the Globe article by Zambian exile the Rev. Kapya John Kaoma:
“This is a big blow, because it leaves African activists on the ground wondering if they can work with Westerners,” Kaoma said. “All human rights defenders in Africa are working under very, very hard conditions, and the violence against them is always there. What they have done is exposed Bishop Tengatenga and then dumped him back into Malawi.”
Were echoed by a member of the Dartmouth faculty, who told me:
The idea of the left taking care of their own calls to mind the Republican friendly fire of the Spanish Civil War. In this case, the left refused even to recognize him as one of their own. He unwittingly and in circumstances scarcely imaginable here violated their language code; their own moral pride compelled them to relegate him to the status of outcast, unfit to exercise moral leadership in our community. I don’t think my perception is entirely distorted when I notice a Leninist streak in the American liberal arts left.
I am preparing this evening for an argument simulation that we are doing tomorrow for the incoming 1Ls as part of orientation. I have been assigned the task of arguing for the petitioner (the town government) in Town of Greece v. Galloway. The process has caused me to appreciate the difference in perspective that comes from my stance as an academic lawyer rather than a government lawyer. But I find myself in need of orientation because switching between these two perspectives is disorienting.
Michael Moreland posted a little while back about the amici curiae brief headlined by Gerard Bradley that he had joined (along with several other constitutional scholars). Soon after that posting, I read that brief, along with the Obama Administration's brief, and others. I found the Bradley brief refreshing in its insistence that what the brief referred to as the Lemon/endorsement test "is inapposite to legislative prayer." The brief argued that: (1) legislative prayer necessarily has a religious purpose; (2) the concept of neutrality underlying the Lemon/endorsement test makes no sense of legislative prayer; (3) legislative prayer does not comport with the Lemon/endorsement test because that cannot apply to a continuing and perhaps long-time government practice with the same force as it may apply to a single act or display; and (4) applying the Lemon/endorsement test to legislative prayer could itself lead to an unconstitutional result. But considering the arguments from the perspective of the town's lawyer (my role for the simulation), I am not sure that I would or should present the arguments in precisely the same way. I do not want to admit that the town loses if the Lemon/endorsement test applies.
I cannot deny, of course, that the purpose of seeking Divine guidance is a religious purpose. But I will be less willing to treat that purpose as incompatible with the purpose of solemnizing the proceedings. I do not want to have to agree that "[t]o apply [the Lemon/endorsement] test to legislative prayer is simply to overrule Marsh v. Chambers, and thereby to eradicate a practice cherished by Americans since the founding." But maybe I need to, because I need to explain why the town shifted in 1999 from beginning with a moment of silence (which seems sufficient for solemnizing) to beginning with an invocation from an invited volunteer. And in making that explanation, perhaps I will find myself back in agreement with the Bradley brief anyhow. Maybe I should embrace its approach to begin with.
Let us now put aside the simulation and ask the question directly. Suppose the town's lawyer is asked at oral arguments in the actual case: "Does the town lose if the Lemon/endorsement test applies?" How should the town's lawyer answer? The town's brief says that the town wins under any test. But is that right?
Michael Gerson has a typically thoughtful piece at the Washington Post today, but it is much more--a beautiful reflection on the joys and sorrows of parenting and the elusiveness of goods in life: "Parenthood offers many lessons in patience and sacrifice. But ultimately, it is a lesson in humility. The very best thing about your life is a short stage in someone else’s story. And it is enough." My colleague Thomas Smith wrote insightfully about this theme in a lecture on Tolkien's Catholic imagination, recently republished in a festschrift. A bit:
The point is that the transitory goods of this world are beautiful and attractive to us, and yet even as we enjoy them, we have an inkling that they will pass away – just as we will. Our enjoyment is mixed with grief because of the sense of impending loss. This is why the Buddha speaks of existence as suffering. He does not mean that there is no happiness in life. Nor does he mean that sometimes painful moments follow happy ones in turn. Rather, he says that life is like honey on a razor; we are cut as we taste its sweetness. Even in our most joyful experiences, a tragic sense lurks that they shall pass. We tend to push that away, shielding ourselves through various distractions. We also tend to cling possessively to our positive experiences and people, unwilling to let them slip through our grasp. Clearly, the ordinary sufferings of sickness, old age, or mental pain constitute part of the suffering of mortal life. Yet there is also suffering even in our joy because of the flow of time. For the Buddha, at the heart of suffering is a clinging possessiveness that expects the universe to meet all our demands, that refuses to let the world flow on through time because this flow frustrates our wish that enjoyment should last.
