I have said before that if you are interested in law and religion, you must read Anthony Trollope. I can't think of many authors who are more intimately concerned with the quotidian working out of church-state arrangements. As Hawthorne once put it, "Trollope's novels are solid, substantial, written on the strength of beef and through the inspiration of ale and just as real as if some giant had hewn a great lump out of the earth and put it under a glass case, with all its inhabitants going about their daily business and not suspecting they were being made a show of."
Trollope's Barsetshire Novels in particular are concerned with political and cultural change, or "evolution," within the Anglican Church in English nineteenth century life. Here is a wonderful passage from "Barchester Towers" in which a "new man" representative of the progressively liberalizing episcopacy (Mr. Slope) informs an "old man" (Mr. Harding) about the changes coming to the Church and to English life more broadly:
"You must be aware, Mr. Harding, that things are a good deal changed in Barchester," said Mr. Slope.
Mr. Harding said that he was aware of it. "And not only in Barchester, Mr. Harding, but in the world at large. It is not only in Barchester that a new man is carrying out new measures and casting away the useless rubbish of past centuries. The same thing is going on throughout the country. Work is now required from every man who receives wages; and they that have to superintend the doing of work, and the paying of wages, are bound to see that this rule is carried out. New men, Mr. Harding, are now needed, and are now forthcoming in the church, as in other professions."
All this was wormwood to our old friend [Mr. Harding]. He had never rated very high his own abilities or activity; but all the feelings of his heart were with the old clergy, and any antipathies of which his heart was susceptible, were directed against those new, busy, uncharitable, self-lauding men, of which Mr. Slope was so good an example....
Mr. Harding was not a happy man as he walked down the palace pathway, and stepped out into the close. His preferment and pleasant house were a second time gone from him; but that he could put up with. He had been schooled and insulted by a man young enough to be his son; but that he could put up with. He could even draw from the very injuries, which had been inflicted on him, some of that consolation, which we may believe martyrs often receive from the injustice of their own sufferings, and which is generally proportioned in its strength to the extent of cruelty with which martyrs are treated....But the venom of [Mr. Slope's] harangue had worked into his blood.
"New men are carrying out new measures, and are carting away the useless rubbish of past centuries!" What cruel words these had been; and how often are they now used with the heartless cruelty of a Slope! A man is sufficiently condemned if it can only be shown that either in politics or religion he does not belong to some new school established within the last score of years. He may then regard himself as rubbish and expect to be carted away. A man is nothing now unless he has within himself a full appreciation of the new era; an era in which it would seem that neither honesty nor truth is very desirable, but in which success is the only touchstone of merit. We must laugh at every thing that is established. Let the joke be ever so bad, ever so untrue to the real principles of joking; nevertheless we must laugh--or else beware the cart. We must talk, think, and live up to the spirit of the times, and write up to it too, if that cacoethes be upon us, or else we are naught. New men and new measures, long credit and few scruples, great success or wonderful ruin, such are now the tastes of Englishmen who know how to live.
Tuesday, November 22, 2016
This blog post and this law review article, written over forty years apart, have made for a bracing forty minutes or so of reading this evening. I don't recommend reading them together. In any event, both raise the question not only of how to know when a wolf comes as a wolf, so to speak, but also what to do when a wolf comes to a community that celebrates what wolves do to sheep.
That's the title of a book chapter I contributed to the recently published collection Public Theology and the Global Common Good (a Festschrift for my doctoral dissertation advisor, David Hollenbach, SJ). Based on Murray's writings in the 1940s and 1950s about the Supreme Court's early Establishment Clause cases, I argue that Murray was more pessimistic about the future of American public philosophy and constitutional law than he is usually regarded, and I draw out some lessons for the mission of legal education today. Critics of Murray (both traditionalist and radical) and readers only of We Hold These Truths (1960) are apt to miss this aspect of Murray. Here is a bit from my chapter (citations and footnotes omitted):
In Murray’s engagement with American constitutional law, an overlooked aspect of his thought was his focus on the particularities of the church-state question as it had played out historically in the United States. He did not so much develop a theory of church and state as use sources in the Catholic tradition to discern historical possibilities for how church and state could relate in ways that the tradition (shaped as it was primarily by continental, not Anglo-American, source) had neglected. This is evident both in Murray’s treatment of church and state in the teaching of Pope Leo XIII and in his discussions of the First Amendment.
A prominent example of this aspect of Murray’s thought is his engagement throughout the 1940s and early 1950s in a wide-ranging critique of the Supreme Court’s Establishment Clause jurisprudence as it emerged in early cases applying the First Amendment to state and local governments. Two cases from that period especially interested Murray. In Everson v. Board of Education, the Supreme Court took up the question of whether a New Jersey program of reimbursing the parents of schoolchildren traveling to and from school (including parochial schools) for transportation expenses was constitutionally permissible. While the Court concluded that the transportation reimbursement program did not violate the First Amendment, Justice Black’s majority opinion famously invoked the “wall of separation” metaphor that has bewitched Establishment Clause jurisprudence ever since. Justice Black’s opinion purported to rest on the original understanding of the First Amendment, but—in both Murray’s articles on Everson and in subsequent legal scholarship—that account has been called into serious question.
In McCollum v. Board of Education, decided shortly after Everson, Murray’s concerns were vindicated. In another majority opinion from Justice Black, the Court used the Establishment Clause doctrine adopted in Everson to hold that a release-time program for pubic school students to attend religious instruction was unconstitutional. In a talk delivered in Wilmington, Delaware shortly after McCollum was decided (discovered in the Murray archives by Joseph Komonchak and published in First Things in 1992), Murray excoriates the reasoning of McCollum: “Our original constitutional doctrine simply affirmed the equality of all religious faiths before the law of the land; our new constitutional doctrine affirms something much more radical and sweeping—it affirms the so-called principle of the ‘absolute separation of church and state.’”
Recently, Andrew Koppelman has invoked Murray’s view as an example of concerns about corruption of religion in First Amendment cases. “A rule against establishment of religion ought not itself to establish a religion,” Koppelman writes, “The point is a powerful one, and it is remarkable that so little has been made of it since Murray wrote.” For Murray, the Supreme Court’s Establishment Clause decisions in Everson and McCollum are “an irredeemable piece of sectarian dogmatism. And if there is one thing that the First Amendment forbids with resounding force it is the intrusion of a sectarian philosophy of religion into the fundamental law of the land.” As an alternative to this misguided interpretation of the Establishment Clause, Murray argued in his essay “Law or Prepossessions?” for “first, a return to the original political philosophy of the First Amendment” and “second, its realistic application in a situation wherein the alignment of forces and the conflict of values is substantially different from what it was in 1791.” Absent these developments, Murray warned that the consequences would be severe:
Join a rigidly negative concept of religious freedom, as sheer immunity from coercion by governmental power, to a rigidly absolute, end-in-itself concept of separation of church and state, as meaning absolutely no aid to religion by government, and you have opened the way to the subtle tyrannies of irreligion, secularist ideologies, false political and education philosophies, and the dangerous myth of “democracy as a religion.” Such a development is utterly foreign to the letter, spirit, and intent of the First Amendment, and will be consequently disastrous to American society.
They ought to know where this kind of thing leads:
Last week another big step was taken towards the mass persecution of children with Down syndrome. On November 10th, the French ‘State Counsel’ rejected an appeal made by people with Down syndrome, their families and allies to lift the ban on broadcasting the award winning “Dear Future Mom” video on French television. The ban was previously imposed by the French Broadcasting Counsel. Kids who are unjustly described as a ‘risk’ before they are born, are now wrongfully portrayed as a ‘risk’ after birth too.
The video features a number of young people from around the globe telling about their lives. Their stories reflect today’s reality of living with Down syndrome and aims to reassure women who have received a prenatal diagnosis. Their message of hope takes away the fears and questions these women may have, often based on outdated stereotypes. The video was produced in 2014 to celebrate World Down Syndrome Day. A day created by Down Syndrome International and officially recognized by the United Nations for the promotion of the human rights of people with Down syndrome.
Happy children with Down “disturb the conscience” of post-abortion women
The State Counsel said that allowing people with Down syndrome to smile was “inappropriate” because people’s expression of happiness was “likely to disturb the conscience of women who had lawfully made different personal life choices”.
That's the title of a paper that Charles Reid, Professor of Law at the University of St. Thomas, has just posted to SSRN. Given the subject matter of the paper, some information about Professor Reid's academic background is relevant. Professor Reid attended the Catholic University of America, where he earned J.D. and J.C.L. (license in canon law) degrees. Reid later attended Cornell University, where he earned a Ph.D. in the history of medieval law under the supervision of Brian Tierney. His thesis at Cornell was on the Christian, medieval origins of the western concept of individual rights. Over the last ten years, he has published a number of articles on the history of western rights thought, and is currently completing work on a book manuscript addressing this question. In 1991, Reid was appointed research associate in law and history at the Emory University School of Law, where he has worked closely with Harold Berman on the history of western law.
Reid's article on same-sex unions and the Catholic Church is downloadable for free here. This is the abstract:
This Article makes the case for reforming the Catholic Church’s law and teaching on the topic of same-sex unions. It is divided into two large parts. Part I surveys the present state of the Church’s rules governing same-sex relations. It is further subdivided into three subsections: the first examining the formation and reinforcement of the anti-sodomy norm in the nineteenth and twentieth centuries; the second reviewing the jurisprudence of the Roman Rota (one of the Vatican’s two supreme appellate tribunals) on homosexuality; the third glancing briefly at more affirming recent statements of Pope Francis and leading Cardinals and bishops. The second part then states the case for reform. It begins by recapitulating the natural-law case against same-sex unions, especially as articulated by Pope John Paul II; it then focuses on personalist philosophy to build a case grounded in human dignity and human rights; it looks to see how arguments grounded on dignity, respect, and human rights were used in legislative and constitutional reform in the United States and in three Catholic countries; and it returns again to natural law. Building on the premise that natural law requires an understanding of nature, the Article reviews the state of the science on same-sex attraction. It closes with a reflection on the many ways the Church has dynamically reinterpreted its normative structure and proposes that reform of the law on same-sex unions would be in keeping with other large historical shifts in the Church’s law and doctrine.
