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.

Monday, May 18, 2015

Race and Justice

By Susan Stabile

Yesterday I moderated a program at Our Lady of Lourdes on Race and Justice, the inaugural program in Lourdes' new Salt and Light Series.  We had a panel of three speakers, each of whom spoke for about ten minutes, after which we had time for dialogue and question and answer.  The three speakers were Archbishop Emeritus Harry Flynn, Nekima Levy-Pounds (my colleague at UST Law School and the newly elected President of the Minneapolis NAACP), and Tom Johnson former county attorney and former president of the Council of Crime and Justice.  It was a moving and sobering event.

One of the things that was mentioned was the pastoral letter on racisim Archbishop Flynn released in 2003, In God's Image.  Archbishop Flynn talked about the circumstances of his issuing it and the reaction (positive and negative) he received, and Professor Levy-Pounds noted that she assignes the pastoral letter (along with Martin Luther King's Letter from a Birmingham Jail) to her students each semester.

When I went back to look at the pastoral letter again when I got home yesterday afternoon, I realized how that the words the former Archbishop used to introduce his letter are as timely and important today - perhaps more so - than they were when he wrote them in 20o3.

Here is the Preface to In God's Image:

Brothers and Sisters in Christ,

In the Hebrew Scriptures the prophet Micah gives us a simple but very challenging formula for holiness. He writes,

“… This is what Yahweh asks of you: Only this, to act justly, to love tenderly, and to walk humbly with your God.” (Micah 6:8)

This is the spirit that I hope all of you will bring to the discussion of racism and racial justice in our church and in our society. We cannot be a church that is true to the demands of the Gospel if we do not act justly, if we do not act to root out racism in the structures of our society and our church. And we cannot achieve personal holiness if we do not love tenderly, if we do not love and respect all human beings, regardless of their race, language, or ethnic heritage.

Only if we do these things can we expect to walk humbly with our God. For our God is a God of love and justice, a God who made all of us in His image. Racism is a denial of that fact. It is an offense against God. I realize that the subject of race can be a very difficult one for all of us. Yet I am convinced that we must address it with honesty and courage. For it remains a significant and sinful reality in our midst.

I am issuing this pastoral letter as an invitation to discussion and dialogue. I hope all of you will accept this invitation by taking part in discussions in your parish and community. By engaging in such a dialogue, we can all enhance our understanding of the role that race plays in our lives and we can join together in working to combat racism in all its forms.

Thank you for your commitment to the values of human dignity and racial justice.

God bless you,

Most Reverend Harry J. Flynn
Archbishop

You can read the pastoral letter in its entirety here, and I encourage you to do so.

[Cross-posted from Creo en Dios!]

Sunday, May 17, 2015

"We often hide . . . ."

By Patrick McKinley Brennan

A blog dedicated to Catholic legal theory is surely an apt forum in which to explore the causes and consequences of lawlessness in the Catholic Church.  Today's lesson comes to us from the Diocese of St. Petersburg, where His Excellency Robert Lynch has served as Ordinary since 1996.  First, a little background.  

Yesterday, Bishop Lynch took to his blog (here), "For His Friends," to celebrate his ordination yesterday of five new priests for the Diocese, the largest class of ordinands there since 1991.  I join Bishop Lynch in giving thanks for these new priests of Jesus Christ, all of whom began their studies for the priesthood during the pontificate of Pope Benedict XVI.  Here, in part, is what Bishop Lynch had to say to his new priests yesterday:

We don’t teach what we believe as well as we should. We rely perhaps too heavily on old methods of communication and put too much reliance on traditional vestige, hierarchy of orders and judgment. We often hide in the clothes of the past as well as some of the ideas of the past, disregarding the fact that to today’s younger generation not only are these things devoid of meaning and anachronistic but also some can suggest tendencies that may not otherwise be present.

Talk about weird!  What "tendencies that may not otherwise be present" is the Bishop talking about at an ordination?  Moving on (because there is nothing to see here), to whom does the Bishop refer as "hid[ing] in clothes of the past?"  Is the simple choice to wear the traditional vestments of the Roman Rite to "hide?" And don't forget that "some . . . ideas of the past" are also apparently a refuge for those wishing to "hide!"  

Was the Archbishop of Miami, His Excellency Thomas Wenski, "hid[ing]" when he celebrated a Pontifical Solemn High Mass according to the Usus Antiquior (here)?  Those who have had the privilege of spending time with Arbishop Wenski, who "rides a Harley" (here), can attest that he is no "hid[er]."  His public stances on disputed matters of policy have been courageous, and he frequently celebrates Mass in Haitian Creole.  

If anyone had any doubt about Bishop Lynch's agenda at the ordination and otherwise, his letter in this link gives it all away.  His Excellency has a long history of despising the Traditional Latin Mass (see here), and his letter of April 20, included in full in the link above, virtually breathes contempt for the faithful devoted to the Traditional Mass.

But I said this post was to be about lawlessness, and indeed it is.  Bishop Lynch's endless tactics and strategies for making the traditional Latin Mass all but unavailable in his Diocese are in clear violation of the juridical norms set out by Pope Benedict in Summorum Pontificum (here).  Pope Benedict made clear that he knew that many Bishops were impeding the celebration of the Traditional Mass under the indult permission allowed since 1984 in Quattuor abhinc annos by Saint Pope John Paul II, and for that very reason Summorum removed Bishops from the loop, so to speak.  The permission of the local Bishop is not required for the celebration of the Traditional Latin Mass in public (or in private).  Bishop Lynch's specious logic for suppressing the celebration of the Traditional Latin Mass where it is now celebrated and for consolidating its celebration in the Vietnamese Mission parish has the support of no Roman legal norms currently in force.  We are witnessing unvarnished antinomianism.  I do hope that the good people of the Diocese of St. Petersburg will receive due relief and remedy from the Pontifical Commission Ecclesia Dei, but I am not hopeful.

Why am I not hopeful?  Consider these words that Bishop Lynch also spoke to the ordinands he cautioned not to "hide:"

Style your ministry after Pope Francis. Ever the teacher, he is a master of the use of the gesture which captures the hearts of the world. Why, because he acts like most of us think Christ would act. He speaks with authority only when he has to but with wisdom and understanding and openness. He doesn’t hide behind rich vestments and vestiges of power and privilege but leads by example using words only when absolutely necessary. When Raul Castro can suggest that this Pope is truly an ambassador for God, we least of all,  should never take him for granted.

Did every Pope until Francis "hide?"  And is it true that Pope Francis "use[s] words only when absolutely necessary?"  But who am I to judge?  

Saturday, May 16, 2015

Alan Hurst on marriage, compromise, and changing minds

By Rick Garnett

With Alan's permission, I am posting a version of a thoughtful comment he shared with the Law and Religion listserv:

“You shouldn’t worry about gay marriage and religious freedom,” I’ve occasionally been told. “In thirty years, pretty much nobody’s going to be religiously opposed to gay marriage, so gay marriage won’t interfere with anybody’s religion.” 

The people who’ve told me this generally meant well, but I think their willingness to think this sort of thing—and to imagine that believers concerned about religious freedom would find it comforting—is a testament to the ignorance about religion that pervades certain parts of our society. 

To begin with, few believers could possibly be comforted by someone saying, “You shouldn't worry about the long run because your religions will just change their minds on this issue anyway.” That statement suggests at least one of the following two ideas: 

    1. that religious beliefs are entirely a product of time and culture, with no basis in any transcendent truth and no capacity to resist broader cultural movements. 
    2. that religious beliefs opposing gay marriage are purely an irrational bias and, like religious opposition to interracial marriage, will gradually vanish as gay marriage becomes commonplace and believers' aversion to gay relationships is worn down by familiarity.

 These ideas are too big for me to try to refute here, and certainly there are people who believe them. But if you’re among those people, I hope you’ll consider for a moment how they sound to believers who disagree with you. In essence, when you say, “Your religion will change on this issue,” you’re saying either, “The beliefs you've built your life on have no basis in reality” or “Your bigotry has led you to misunderstand your own religion.” True or false, these two thoughts are quite the opposite of comforting to a concerned believer; indeed, they’re likely to convince some believers that you really don’t understand religion and that you really are out to get them.

But there’s a more practical reason not to tell believers that their religions will soon abandon traditional Christian sexual ethics: if you do, there’s a good chance you’ll be wrong.

Partially I say this because the analogy between religious racism and religious heteronormativity is at most superficially accurate. Traditional Christian teachings about sex just have a much different place in the church than American Christians’ teachings about race ever did—theologically, practically, socially, historically, etc. These things are simply not the same. Ross Douthat wrote briefly (but I think accurately) about this here.

And partially I say this because religion has always been international in nature, and like everything else it's getting to be more so. The heart of Christianity is moving from Europe and North America to Latin America, Africa, and Asia. Within a few decades, China may be home to more Christians than any other country. American Catholicism has never been especially important to the Catholic church, and even we Mormons now have more members outside the U.S. than inside.

Although the gay rights movement is likewise an international phenomenon, it’s not likely to play out everywhere the same way it has here. There are some places where gay marriage will not be legal for the foreseeable future; there are others where legalization will not lead to the sort of pressure on traditionalists that has begun to be exerted here. So long as such places exist, their Christians are going to give some ballast to American Christian opposition to gay marriage. Indeed, to some extent it’s already happening—witness, for example, the ties springing up between conservative American Episcopalians and African Anglicans.

My prediction? I think religious opposition to gay marriage is going to be like religious opposition to premarital sex. The polls will move more rapidly than anyone used to think possible, and in a decade or two only 20% of Americans will think gay marriage is immoral. And then the graph will bottom out, and 20% of Americans will still be thinking that for a long time.

So, the upshot of all this: don’t proclaim too loudly that the present controversies are temporary because we’re all going to agree about all of this very soon. It’s rude: it tells believers you don’t take their beliefs seriously. It’s counterproductive: it will only heighten the fears of people who see gay marriage as a threat to their way of life. And there’s a good chance that it will prove to be wrong, and that we’re stuck for the foreseeable future with the hard work of drawing distinctions and making compromises. The sooner we all commit to it, the better.

Friday, May 15, 2015

Conference on Kent Greenawalt

By Marc DeGirolami

I was very pleased to take part in a conference yesterday at Columbia Law School honoring my old master, Kent Greenawalt, and 50 years of his teaching and writing. Together with Paul Horwitz and Andy Koppelman, I was on a panel involving church and state. Subsequent panels followed on free speech and legal interpretation (chiefly statutory interpretation, which has been Kent's primary focus historically). I took the liberty of saying something about criminal law as well, yet another area in which Kent has made major contributions, including as one of Hebert Wechsler's colleagues in revising the Commentaries to the general part of the Model Penal Code. Paul has a nice post on the event.

Here's a quote of Kent's I found in a piece written about a decade ago: “Criminal law scholars are much more divided about desirable approaches than they were in the 1950s, and even among centrist scholars, no one person now has the distinctive stature that Herbert Wechsler enjoyed.” Some of my comments considered and adapted that general thought in the context of law and religion scholarship today, where it is also apt for various reasons.

Just three additional notes from the panels. First, on the speech panel, there was some interesting discussion about the plausibility of the Austinian idea of performative utterances (a concept used and applied by Kent in this book)--whether the distinction between performative and non-performative speech holds up, or whether all utterances are in some way performative and so we need instead to focus on the quality of the performative speech at issue (threats of violence are different for regulatory purposes than a comment at an academic conference, though there may not be a big difference for performance purposes). Second, on the legal interpretation panel, Fred Schauer criticized the notion that "public meaning" cannot be ascertained without recourse to someone's intentions (I believe Larry Alexander among others holds something like the opposite view), though of course one need not subscribe to original public meaning in order to believe that public meaning is coherent. Third, I had never quite realized (though I guess I should have) just how much sympathy Jeremy Waldron has for textualism. Jeremy talked about a seminar in statutory interpretation that he and Kent ran in the late 1990s and it was clear how much they differed in their respective approaches (and how much they enjoyed the debate). Jeremy's talk included 12 ways in which legislation is qualitatively different from other group expression. One of the 12 was that legislation is "dangerous," which I thought was an interesting thing to say.

Thursday, May 14, 2015

By way of introduction...

By Erika Bachiochi

It is a real honor to have been invited to 'blog' here at Mirror of Justice.  I have long admired the keen observations about all things Catholic and legal on this blog, and am so grateful it exists. I do not know how well I'll take to blogging, but if there is a blog for me, this is the one. Thank you Rick and Lisa for taking a chance on me. 

It is particularly edifying to have been invited to join a 'law professor' blog without, well, being a law professor. It gives some credence to the view that my scholarly work is actually important to someone out there; it's not just something I do to keep myself intellectually engaged when I am not otherwise active with six young children or with the classical Catholic school I just helped to found outside of Boston:  www.stbenedictelementary.com.  

My work involves the development of a thoroughgoing Catholic feminist theory as well as a Catholic feminist legal theory, especially as questions about gender intersect with questions of sexual and social ethics.  (I'm also quite interested and adept in discussing theories of both education/educational policy and religious liberty, but will also readily admit to expertise in neither.)

I entered the feminist conversation 20 yrs ago, as a secular feminist activist and Women’s Studies student during my early years at Middlebury College in Vermont.  Since my conversion (or ‘reversion’) to Catholicism in my final year at Middlebury in 1996 (a drama that involves the intellectual intervention of a leading Staussian atheist Jew), I’ve been keenly aware that, to be taken seriously in the modern world, the Church has to be in serious conversation with secular feminists. And though I tend to like a debate, and am strident in my arguments, I do mean conversation. Our political discourse—what with recent War on Women rhetoric on the left and a real demonization of feminism on the right—hasn’t served us well on this score. While adhominems fly, opportunity for real conversation among those of who see ourselves working for women’s progress remains barren. (NB: I applaud the work of Lisa Schiltz and Susan Stabile, especially in their most recent book in search of common ground with Georgetown law professor Robin West, about which I hope to write in a future post.)

So what I’ve tried to do in my work as legal scholar and women’s advocate is something not many faithful Catholic intellectuals would really ever care to do, but is something that is increasingly necessary if we are to truly engage secular feminism on its own terms: as a good student of Strauss, I seek to read the leading feminist philosophical and legal literature with a sympathetic eye; having been on board once upon a time, I find such sympathy easy to come by (and often still agree with and enjoy much of what I read). 

As I write in Mary Rice Hasson's new book, Promise and Challenge (mentioned by Lisa in an earlier post): 

In order to advance successfully a new feminist worldview in public life or in scholarship, we have to take the time to listen to our feminist-minded interlocutors, read them, and get to know them. If we are convinced, with St. Thomas, that human beings seek the good and the truth, we can turn to feminist theory and argument, and make an effort to identify the good intentions, insights, and authentic advances. In order to love them, we must take them seriously and sympathize with their position the best we can. We must have the confidence to ask humbly what we can learn from our interlocutors. What is it that makes their viewpoint, their writings, so compelling to others? Listening to them can teach us much—about their presuppositions first and foremost, and about potential areas of agreement. In general, though of course there are myriad exceptions, feminist-minded scholars and lay persons tend to care deeply about the sorts of things Catholic women care about:  women and children, relationships, and the vulnerable. We just have starkly different ways of addressing these shared concerns.

I believe that the Church offers a richly pro-woman alternative to secular feminism, but that alternative is deeply inaccessible to the many many people who look out at the world through a secular feminist prism.   As I write in Promise and Challenge:  

Part of our current trouble making inroads into the culture with the Church’s extraordinarily liberating pro-woman message is our inability to translate it adequately for the modern world. (And Pope Francis does seem to think the trouble lay primarily with us, Christ’s disciples, and not with the lost sheep who no longer heed the Christian message.)...To the “JPII Catholic,” guided by the light of faith and strengthened by sacramental grace, the Church’s sexual teachings seem so right and life-saving, and so good for marriage, children, men and women—that there could be no other way. As a result, a vast gulf exists between the well-formed Catholic and the world’s sojourner, a sojourner who has been deeply formed, on the other hand, by the secular feminist worldview, whether or not she knows it or would even describe herself as a feminist. Key phrases used by John Paul II, such as “sexual complementarity,” “feminine, or nurturing, nature,” or “the nuptial meaning of the body” may mean gift and purpose to the well-formed Catholic but represent oppression and confinement to the feminist-minded. Just as in the days of the early Church, members of the same family speak as though foreigners, lacking not only a common moral framework, but also a common language. If we do not find a new translation, a mediating bridge that better articulates Church teaching in a world shaped by feminist views, we will remain forever a booming gong and clashing cymbal, a self-referential church, the Pope says, that thinks itself better than the world, but meanwhile shrivels in its pride, in its inability to love the other enough to go out and find her.

The rest of that chapter as well as the whole of Women, Sex & the Church: A Case for Catholic Teaching tries to make some progress in articulating Church teachings anew, not for utilitarian purposes as though to spin her unpopular teachings in a more attractive way, but alas, because they are true. The sexual revolution has not been the boon to women secular feminists seem to think. 

 

"[T]he government should look at China and aspire to do better."

By Kevin C. Walsh

Some basic, but unfortunately on-point advice from Mark Rienzi for the Obama Administration: Do better than China on religious liberty. 

The Administration (and others interested) should read Professor Rienzi's USA Today op-ed on a topic I briefly blogged about previously: "American nuns, Chinese booze and religious persecution." 

(Interesting sidenote: The op-ed is not about same-sex  marriage, but USA Today apparently saw fit to include "gay-marriage" in the web address: http://www.usatoday.com/story/opinion/2015/05/13/china-religion-america-government-gay-marriage-column/27130999/. It would have been really interesting if they had also sought to include "pizza," "memories," "Indiana," or some combination like "Hoosier-pizza-gay-marriage-China-religion-memories-america-take-out-government.")

"Final Exit" Convicted of Assisting in Suicide

By Elizabeth Schiltz

Update to my recent post mentioning the prosecution of a the right-to-die group Final Exit Network Inc. here in Minnesota: they were convicted today assisting in the suicide of a woman who took her life in 2007 after years of suffering with chronic pain; it's the first time they've been found guilty of this charge.  They do, of course, intend to appeal for violation of the First Amendment.

Brandon Paradise on "How Critical Race Theory Marginalizes the African American Christian Tradition"

By Thomas Berg

Brandon Paradise (Rutgers Law) has a valuable new article on "How Critical Race Theory Marginalizes the African American Christian Tradition." It's a lengthy piece that documents how critical race theory's methodology has been overwhelmingly deconstructionist and secular, ignoring the central role of Christianity in the lives of most African Americans and in the civil rights movement.

As I read him, Professor Paradise thinks has had several troubling consequences (even though he understands how realities like white Christian support for slavery and quietism within the black church have helped spurred it). First, it has cut off critical race theory from a central aspect of the lives of a large percentage of African Americans--an ironic result given the critical-theory premise that “'the actual experience, history, culture, and intellectual tradition of people of color in America' should serve as the epistemological source for critical scholars." (Quoting Mari Matsuda.)

Second, it significantly eliminated from critical race theory the call for individual spiritual transformation that was an important part (although of course, Prof. Paradise recognizes, not the only part) of the message of M.L. King and other civil rights leaders. Third, and related, Paradise notes how the deconstructionist orientation limits the ability of the theory to appeal to universal principles of human dignity, human nature, and morality in the way that the Christianity-grounded civil rights movement did. Including that old concept of natural law, which just happens to be central to the "Letter from a Birmingham Jail." About the letter, Paradise writes:

[F]ar from offering an indeterminacy critique—the thrust of which illustrates that first principles cannot compel a specific vision of community—King resolutely argues that first principals of natural law compel him to reject a segregated vision of community in favor of a desegregated one.

Prof. Paradise then offers some sober hope about the possibilities for developing an African-American Christian approach to law:

Because of the possibility that developing an approach to law that reflects the African American Christian tradition will receive little support in the legal academy, scholars engaged in the project will have to be pioneering, prophetic voices who are willing to cut against the grain of the secular left as well as the predominantly colorblind, religious right. However, not all is grim. While the project may suffer marginalization within the halls of the legal academy, the Black community’s substantial identification with Christianity means that the effort to develop an African American
Christian approach to law has a natural and substantial constituency outside of the ivory tower.

Lengthy, but as Larry Solum would say, "highly recommended." In this more pluralistic age, civil-rights theory and practice surely can't be grounded solely in the Christianity that inspired the movement of the 1960s: I think Prof. Paradise would recognize that. But he makes a good case that Christianity has been far more marginal among the theorists than it ought to be.

"Pope Benedict XVI's Legal Thought"

By Rick Garnett

What a treat -- I received in the mail today my copy of Pope Benedict XVI's Legal Thought, edited by my friends Andrea Simoncini and Marta Cartabia, and published through John Witte's Cambridge Law and Christianity Series.   Learn more about (and buy) the book here.  The description:

Throughout Pope Emeritus Benedict XVI's pontificate he spoke to a range of political, civil, academic, and other cultural authorities. The speeches he delivered in these contexts reveal a striking sensitivity to the fundamental problems of law, justice, and democracy. He often presented a call for Christians to address issues of public ethics such as life, death, and family from what they have in common with other fellow citizens: reason. This book discusses the speeches in which the Pope Emeritus reflected most explicitly on this issue, along with the commentary from a number of distinguished legal scholars. It responds to Benedict's invitation to engage in public discussion on the limits of positivist reason in the domain of law from his address to the Bundestag. Although the topics of each address vary, they nevertheless are joined by a series of core ideas whereby Benedict sketches, unpacks, and develops an organic and coherent way to formulate a “public teaching” on the topic of justice and law.

Welcome to Erika Bachiochi

By Rick Garnett

I'm happy to announce, on behalf of the MOJ crew, that we're being joined by Erika Bachiochi, a prolific writer on bioethics, feminism, and Catholic thinking and teaching about these matters.  For a taste of her scholarly writing, check out "Embodied Equality:  Debunking Equal Protection Arguments for Abortion Rights."  Welcome, Erika!

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