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.

Thursday, September 17, 2015

Saint Robert Bellarmine

By Michael Moreland

San_roberto_bellarmino

A few things for today's Memorial of Saint Robert Bellarmine (1542-1621), the Counter-Reformation Jesuit cardinal and one of the great political theorists in the Catholic tradition:

Pope Benedict XVI's reflection on Bellarmine's legacy as a doctor of the Church is available here.

My friend Matthew Rose published a brilliant paper on Hobbes and Bellarmine in the Journal of Moral Theology over the summer (available here at page 43). A bit from that:

In the pope’s private chapel on All Saints Eve in 1614, an elderly Robert Bellarmine joined a group of fellow cardinals and Pope Paul V for Vespers. At the time an advisor to the Sacred Congregation of the Universal Inquisition, Bellarmine could not have known he was being closely watched by a visitor, then in his late twenties, who would go on to compose the most important political treatise in the English language. The tutor to William Cavendish seems to have made a special point of bringing his pupil to see the Cardinal, whom his travel journals describe as a “little, lean old man” distinguished for his “rank” and “learning.”

Some thirty-five years later Thomas Hobbes would complete his observations of Bellarmine, granting him the distinction of being the only modern author identified by name in Leviathan.

….

Hobbes’s attack on Bellarmine is arguably the most mature expression of a debate between temporal and spiritual authority that had grown steadily in sophistication since the eleventh century. In the pages of Leviathan, it can for the first time be fairly described as a debate between the church and the fully modern state. Its most interesting feature is that, unlike previous iterations, it is not fundamentally about rival jurisdictions. Hobbes instead challenges Bellarmine with a rival account of Christianity itself, one that aims to show how classical forms of Christian theology need to be reformed by enlightened modes of thought. Hobbes argues that the pope’s “indirect power”—his alleged spiritual authority over temporal matters that involve man’s supernatural end—reflects a defective understanding of both revelation and reason.

Matthew Rose, "Hobbes contra Bellarmine," 4 Journal of Moral Theology 43 (2015), at 43, 45 (citations omitted).

And then this appreciation (qualified a bit later) from John Courtney Murray, SJ writing in Theological Studies:

An appreciation of Bellarmine's political theology must needs be generous; here it may also be brief. His defense of the permanent and absolute principles on which that theology rests was brilliant and effective. The essence of the "common cause" that he defended was, of course, the distinction of the two powers. Bellarmine gave it a newly luminous statement by his emphasis on the purely spiritual power of the Church, and by his elaboration of Thomistic political philosophy. In this respect he effected a doctrinal advance within the Church herself, by finally disposing of the confusions and exaggerations of the hierocrats. Moreover, out of this doctrinal synthesis, by analysis of its terms, he drew a newly effective statement of the second great principle that is part of the Catholic "common cause"; I mean the primacy of the spiritual power and the subordination of the temporal power. Here he did a service not only to the Church but to the spiritual freedom of mankind, in that he set a stern barrier to the tyrannical pretensions of royal absolutism. His doctrine shattered all three elements of the theory of "divine right": the exclusive rightness of the monarchical form of government, the belief in an individual monarch's inalienable right to govern, possessed independently of human agency, and the assertion of the irresponsibility of the king—his absoluteness. Here was a political as well as a theological achievement of a high order.

"St. Robert Bellarmine on the Indirect Power," 9 Theological Studies 491 (1948), at 532.

Wednesday, September 16, 2015

Mitus Iudex

By Erika Bachiochi

Trying to catch up on responses to Pope Francis' Mitus Iudex Dominus Iesus (document on annulment reform). Ross Douthat ruminates about the impact of the ruling upon the upcoming discussion at the Synod--and more, wonders whether we are any closer to healing the deep divisions in the Church surrounding her teachings on marriage. But, even better, he links to a canon lawyer I hadn't yet discovered. I found Dr. Peters' blog very helpful, especially with regard to his concern about the protective effect of the (more strict) annulment process. This aspect is of special concern to me in light of the faithful women I know who have been abandoned in their Catholic marriages--often with many children to care for.  Here's Dr. Peters':

Now, Mitis does not change one jot or tittle of Church teaching on marriage. It recites the unchangeable nature of Church teaching on marriage and the importance of having an ecclesiastical procedure to investigate the character of marriages entered into by the faithful. But, the fast-track annulment option offered in Mitis removes a significant (and inevitably widening) number of marriages from the real protection that is offered not by heart-warming recitations of Church teaching, but by the practical discipline exercised in formal tribunal annulment cases. Indeed, Mitis so obviously deprives a wide swath of marriages from this sort of dull, demanding, but effective (well, about as effective as men-not-angels can make it), procedural protection, that Francis himself admits the risk to marriage inherent in fast-track annulments and simply appeals to diocesan bishops to make sure that the almost-inevitable doesn’t actually happen—bishops, who, as far as one can tell, were not asked whether they wanted, let alone could carry out, such a task. But in less than three months, unless Mitis is significantly modified or better postponed, all diocesan bishops are going to be tasked with personally processing numerous marriage nullity cases. The implications of this change beggar my poor imagination.

 

Conscience claims by government officials

By Rob Vischer

For those who have not grown weary of the debate over Kim Davis, I have an op-ed on the topic in today's Minneapolis Star Tribune.  I consider myself a strong supporter of the liberty of conscience, but I am troubled by her actions. Here's an excerpt:

I believe that our debates over conscience should focus on whether accommodating the claim of conscience would jeopardize access to a good or a service deemed essential (by the state) for full participation in society. Because of the importance of religious liberty and the unavoidable messiness of living in a world of moral conflict, I have objected when the state’s disregard of a provider’s claim of conscience appears to be animated by a desire to avoid potential affronts to a customer’s sense of dignity — for example, when the state penalizes a photo agency for refusing on religious grounds to shoot a same-sex wedding even though many other competent photographers are available. While I object to dignity-driven state prohibitions in the market for goods and services, an employer could legitimately decide that an employee’s conscience-driven refusal of service sends a message inconsistent with the moral claims embedded in the employer’s marketplace identity.

By the same token, the government should have some discretion to decide that its public officials must execute the full scope of the law and serve all members of the public legally entitled to a good or service. If the state of Kentucky wants to create an accommodation for Davis that still maintains full access to marriage for same-sex couples, I wouldn’t object. The problem is empowering Davis to decide on her own whether her denial of access is consistent with the public norms that the state wants to champion. If we value a vibrant moral marketplace, institutional actors, not just individual employees, must have a degree of discretion to shape their identities and messages within the marketplace. The government should have similar discretion.

Tuesday, September 15, 2015

Churches' tax exemptions and religious freedom

By Rick Garnett

I have a short contribution to a discussion at The Washington Post on churches' tax exemptions and religious freedom.  Here's a taste:

Many of the recent calls to tax churches rest on the premise that churches owe at least some of their resources to political authorities — to governments — who can decide whether or not to collect and use those resources for their own purposes. In this view, exempting churches from taxation is seen as somehow subsidizing religion. But it is a mistake to equate “not taxing” with “subsidizing,” even if in some sense the effect is the same. Governments do not refrain from taxing religious institutions merely because it is politically convenient or socially acceptable to support them. They do and should continue to refrain from taxing churches because their power over them is limited, because “church” and “state” are distinct and because religious freedom is fundamentally important.

Sunday, September 13, 2015

The New York Times on religious freedom and "anti-gay bigotry"

By Rick Garnett

It's revealing, and also a sign of things to come.  In this overheated editorial, the New York Times slams the proposed First Amendment Defense Act.  As some readers might know, John Inazu, Michael McConnell, and I have suggested that the FADA should be revised to focus more directly on protecting religious believers and religious institutions (schools, hospitals, universities, social-service agencies, etc.) from being penalized in various ways for acting on the basis of their religious commitments regarding marriage.  (Ryan Anderson and MOJ's own Robby George disagreed with our suggestion, here, while Rusty Reno endorsed our approach, here.)

The Times piece directs some of its criticisms at some of the same features of the current form of FADA that Inazu, McConnell, and I were concerned about.  (Yikes!).  But, make no mistake:  In the view of the Times (and of a great many other "thought leaders," I fear) the FADA is objectionable in principle -- precisely because it protects religious institutions -- and not because of possible applications or questions about its scope):

In other words, it would use taxpayers’ money to negate federal anti-discrimination measures protecting gays and lesbians, using the idea of religious freedom as cover.

For example, a religiously affiliated college that receives federal grants could fire a professor simply for being gay and still receive those grants.

What the Times means by "using the idea of religious freedom as cover" is "allowing religious institutions to act in accord with their missions and commitments."  Yes, religious freedom -- in fact, not as "cover" -- includes, in some instances, the right to engage in what would otherwise be "discrimination."  But, as I've written many times, it is not necessarily wrongful discrimination -- discrimination that should bother the liberal state or its taxpayers -- for a religious institution to take religious commitments into account when conducting its affairs.  There's no reason (no good reason, anyway -- there are plenty of bad ones) to insist that religious institutions somehow become unworthy of cooperating with the government simply because they hire for mission, in accord with their religious commitments.

Friday, September 11, 2015

Letter asking President Obama to continue protecting religious-staffing rights

By Rick Garnett

A little while back, there was a lot of attention paid to a letter from Americans United for Separation of Church and State and signed by more than 100 other organizations urging the President to abandon his administration's (I think wise) decision to continue allowing religious public-funding recipients to hire for mission.  The letter was poorly reasoned and reflects (as I've discussed elsewhere) an unfortunate but widespread confusion about wrongful discrimination.

Now, Stanley Carlson-Thies of the invaluable Institutional Religious Freedom Alliance -- which has been fighting hard for religious-staffing rights for years -- has sent the President a letter of its own (which I signed).  It's available here: Download Letter to President to maintain OLC memo 9 10 2015 (1).  

Please read it (and share widely).

Pope John Paul II on Sept. 11, 2001

By Rick Garnett

I re-read this today:

I cannot begin this audience without expressing my profound sorrow at the terrorist attacks which yesterday brought death and destruction to America, causing thousands of victims and injuring countless people. To the President of the United States and to all American citizens I express my heartfelt sorrow. In the face of such unspeakable horror we cannot but be deeply disturbed. I add my voice to all the voices raised in these hours to express indignant condemnation, and I strongly reiterate that the ways of violence will never lead to genuine solutions to humanity’s problems.

Yesterday was a dark day in the history of humanity, a terrible affront to human dignity. After receiving the news, I followed with intense concern the developing situation, with heartfelt prayers to the Lord. How is it possible to commit acts of such savage cruelty? The human heart has depths from which schemes of unheard-of ferocity sometimes emerge, capable of destroying in a moment the normal daily life of a people. But faith comes to our aid at these times when words seem to fail. Christ’s word is the only one that can give a response to the questions which trouble our spirit. Even if the forces of darkness appear to prevail, those who believe in God know that evil and death do not have the final say. Christian hope is based on this truth; at this time our prayerful trust draws strength from it.

With deeply felt sympathy I address myself to the beloved people of the United States in this moment of distress and consternation, when the courage of so many men and women of good will is being sorely tested. In a special way I reach out to the families of the dead and the injured, and assure them of my spiritual closeness. I entrust to the mercy of the Most High the helpless victims of this tragedy, for whom I offered Mass this morning, invoking upon them eternal rest. May God give courage to the survivors; may he sustain the rescue-workers and the many volunteers who are presently making an enormous effort to cope with such an immense emergency. I ask you, dear brothers and sisters, to join me in prayer for them. Let us beg the Lord that the spiral of hatred and violence will not prevail. May the Blessed Virgin, Mother of Mercy, fill the hearts of all with wise thoughts and peaceful intentions. 

Today, my heartfelt sympathy is with the American people, subjected yesterday to inhuman terrorist attacks which have taken the lives of thousands of innocent human beings and caused unspeakable sorrow in the hearts of all men and women of good will. Yesterday was indeed a dark day in our history, an appalling offence against peace, a terrible assault against human dignity.

I invite you all to join me in commending the victims of this shocking tragedy to Almighty God' s eternal love. Let us implore his comfort upon the injured, the families involved, all who are doing their utmost to rescue survivors and help those affected.

I ask God to grant the American people the strength and courage they need at this time of sorrow and trial. . . .

Thursday, September 10, 2015

Solving Miller v. Davis: Licenses in Rowan County explicitly authorized by a different county clerk?

By Kevin C. Walsh

Different people have been dismayed by different aspects of the transition to same-sex marriage licensing in Rowan County, Kentucky. But just about everyone recognizes that there must have been, and still must be, a better way. So here's a shot at solving the case of Miller v. Davis. 

Here are the constraints/objectives: 

(1) Everyone who is eligible should be able to obtain a marriage license in Rowan County.

(2) Nobody should be forced to act in violation of his or her conscience.

(3) Nobody should act outside the law. 

This should not be terribly difficult. There is a statewide infrastructure in place for getting marriage licenses to eligible couples. Every county clerk's office has the same prescribed form. And any county clerk can issue a marriage license. That is, there is no requirement that a person obtain a license from the county where he or she lives. 

We also know from events on the ground that at least one deputy clerk in Rowan County is willing to accept license applications, fill out all the paperwork, and issue the licenses. According to the testimony at a preliminary injunction hearing, this process takes about five to seven minutes. 

One problem with how things are going right now is that the licenses issued by the deputy clerk are not authorized by the Rowan County clerk, Kim Davis.

Davis has suggested applicants should drive to another county. This may be less than an hour round-trip. But it fails constraint (1).

The applicants have said the clerk should just authorize the licenses even though this violates her conscience. That fails constraint (2).

The clerk has also suggested various other accommodations, such as a change in the prescribed form. But she lacks the authority to change the form. And the judge hearing the case has not seen fit to join the state official that has this authority.

But let's work with this a bit more. What can Kim Davis do to facilitate the issuances of licenses within Rowan County without violating her conscience? There are two features of the process to focus on here: Davis's name and Davis's authority.

Look at this interchange from the July 20, 2015 preliminary injunction hearing: 

THE COURT: All right. You just object to your name being on the license?

THE WITNESS: My name and my county, yeah.

THE COURT: Well, your county, you're elected by the county. But if it said Rowan County and listed a deputy clerk -- let's say the deputy clerk that would be permitted to, or has agreed that he or she would not be religiously opposed to issuing the license, if it just was the deputy clerk's name with Rowan County and not your name, would you object to that?

THE WITNESS: It is still my authority as county clerk that issues it through my deputy.

THE COURT: All right. Very well. You may step down. Thank you.

And now we come to constraint (3). Can the deputy clerk in Rowan County issue licenses that are not authorized by Kim Davis? Maybe yes and maybe no. Depends on what we mean by "authorized." The deputy clerk cannot issue licenses purportedly under Davis's authority when she has not granted that authority. But why can't the deputy facilitate the issuance of licenses under the authority of another county clerk?

Kentucky law provides that any county clerk can issue a marriage license when application is made in person or by signed writing by someone 18 years or older. (The statute focuses on the female's age, but presumably that should be understood and applied gender neutrally post-Obergefell.)

So a couple walks into the Rowan County Clerk's office. They seek a marriage license and are referred to a willing deputy (such as Brian Mason). He takes down their information, gets their signatures, and generates a license on the prescribed form. Near the top of the form, right after "you are hereby authorized," he writes in the name of another county clerk who has authorized him to issue that license. Why wouldn't this work?

One question is how the deputy clerk gets authorization from another county clerk. There are probably many ways this could be done. Perhaps the simplest would be some type of single-purpose power-of-attorney. Another might be a blast email to all county clerks on a case-by-case basis, saying "I have a signed application that satisfies all the statutory requirements. Can someone authorize this license?"

Another question is whether there are any obstacles in Kentucky law that cannot be overcome without a change in the law. I'm not aware of any, but welcome any pointers.

Another question is whether Kim Davis would go along with this. This is about one hour a week worth of employee duties. She probably should go along with this. It satisfies the conscience constraints that she's articulated thus far, as I've been able to tell from the filings. The key is to make clear that the license is not being issued under her authority as county clerk, but under some other county clerk's authority. [UPDATE: Davis's response in opposition to a preliminary injunction [Dkt. 29 at 13] seems to welcome precisely such an arrangement: "Davis is ... not claiming that her religious freedom is substantially burdened if the license were issued by someone else in Rowan County (e.g., a deputy clerk), so long as that license is not issued under her name or on her authority."]

Applicants might object on constitutional grounds, saying that they are being differently treated. But particularly if all marriage applications are handled this way in Rowan County, it's hard to see why that should be a winning constitutional claim. 

So, can we make this work? What are your suggestions for solving Miller v. Davis?

Wednesday, September 9, 2015

Archbishop Fiorenza on religious freedom

By Rick Garnett

I've been really blessed, in recent years, with the opportunity to get to know Archbishop Emeritus Joseph Fiorenza (Galveston-Houston).  He's a holy and thoughtful man.  I happened to come across this Red Mass homily he delivered, in New Mexico, on religious freedom.  It's well worth a read.  Here's a bit:

It seems to me there will be more of these efforts to restrict the exercise of religion to within church walls. The secular world and the sacred are not in themselves opposed to one another. After all, Jesus said, "render to Caesar the things that are Caesar's, and to God the things that are God's." The real problem is a form of secularism, called profane secularism which seeks to exclude God from all public life and confine Him to the church or synagogue or mosque. The growing profane secularization of our society will seek to impose on religious organizations a form of legislative dictatorship in violation of the traditional respect both federal and state legislators have had for religious freedom as an important ingredient to freedom of worship.

This tradition reaches back to President Thomas Jefferson who wrote in 1804 to the Ursuline nuns in New Orleans where the first Catholic hospital was established that their charitable works could continue in accord with their own rules "without interference from civil authority". This pledge of our third president is in jeopardy if current secular trends infringe on the freedom of religion.

Kaczor reviews Tollefsen on Lying (updated)

By Rick Garnett

At Public Discourse, Prof. Christopher Kaczor reviews Prof. Christopher Tollefsen's new book, Lying and Christian Ethics.   (The review includes links to a lot of items having to do with the Planned Parenthood videos and the arguments over the morality of the tactics used to get them.)

Here, by the way, is Kaczor's defense (written about 5 years ago) of these tactics when the same debate was raging about an earlier video-sting.  He concluded:

Tollefsen’s principles would seem to prove too much. They would seem to exclude undercover sting operations undertaken by law enforcement. They would exclude infiltrating a terrorist cell. They would exclude spies working to foil enemy battle plans. They would exclude investigative journalism that cultivates trust with the object of investigation. It could be that morality demands an end to all such activities, but it seems more likely that such activities are ethically permissible for serious reasons. By the same reasoning, it seems that the basic strategies undertaken by Live Action need not involve intrinsically evil acts that must always be avoided whatever the cost.

And, here is a post that I did, around the same time.

UPDATE:  On Twitter, Ryan Anderson takes me to task for quoting from the older Kaczor piece and not from the review (that is the subject of this post and to which I linked).  In the current review, Kaczor says, among other things (as Ryan points out):  "Tollefsen has caused me to seriously reconsider my own earlier stated position..., and for that I am grateful." His review concludes with this:

On Tollefsen’s view, perfect love for all human beings and perfect obedience to the Father also enjoin us to never assert falsely. Lying and Christian Ethics provides a powerful case for the thesis that false assertion violates the goods of personal integrity (love of self), sociality (love of neighbor), religion and truth (both pertaining to obedience to and love of God). Readers inclined to think lying is sometimes justified owe it to themselves to read this book.

This is, of course, an important question, and "serious[] reconsider[ation]" is always a worthwhile exercise.

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