Thanks to Patrick for his insightful remarks about the issues surrounding blogging. I think all of us who contribute to web logs and those who offer comments to authors’ postings can take stock of what you said. Of course, this is a prevalent means of communicating ideas today. This does not mean that it is a good or desirable method, but it is one that exists and its impact cannot be underestimated.
I am also grateful to Eduardo for his posting entitled “Dolan on Gay Marriage.” There are many things that can be said about the Archbishop’s post and Eduardo’s commentary on it. Today I’ll restrict my commentary to Eduardo’s thesis that Archbishop Dolan about the definition of marriage. But before I do, I think it important to take stock of this reality about blogging to which Patrick has referred: is the medium of the web log the place where any of us really expect a detailed analysis of every nuance, no matter how important, in a few hundred words? I for one think that it would be impossible to achieve this, and, therefore I do not expect in-depth discussion in blogging. Web logs are better as providing catalysts for discussion and debate, but they are not the substance of the detail that must inevitably accompany discussion and debate. Justice to the positions that emerge in blog posts and the justifications that should undergird the positions presented require more than a few paragraphs that are the limit of blogging. I also think that Archbishop Dolan realizes that detailed argument is necessary on this vital subject and on many other issues, and that is why he can and does write pastoral letters where sufficient detail can be mustered in explaining the views which he is proposing. I don’t think that Eduardo believes that the Archbishop is incapable of “reasoned argument”; moreover, I am sure he shares with me the perspective that Archbishop Dolan has demonstrated that he, like us, would be dissatisfied with “conclusory zingers”.
So, on to one of Eduardo’s contentions that “Dolan himself can hardly make up his mind on the subject of marriage’s meaning.”
Now I must get to his principal critique. Eduardo makes the point that the Archbishop is inconsistent in the three definitions that he, the Archbishop, has provided in the postings to which he, Eduardo, refers. The definitions of marriage provided by Archbishop Dolan to which Eduardo refers are these:
- marriage is “one man, one woman, united in lifelong love and fidelity, hoping for children”
- marriage is “a loving, permanent, life-giving union to pro-create children”
- marriage is “loving, faithful union between one man and one woman leading to a family”
At this point, it might be helpful to take stock of how the Church teaches what marriage is and is not:
Marriage is explained in some detail in Part Two, Section Two, Chapter Three, Article Seven, in the Catechism of the Catholic Church. It is evident that what the Archbishop asserted in his several postings does not deviate from the Catechism.
Moreover, the Archbishop’s formulations are consistent with the lengthy discussion of marriage in the Compendium of the Social Doctrine of the Church.
In the 1983 Charter of the Rights of the Family, the Church more succinctly defines marriage as: “that intimate union of life in complementarity between a man and a woman which is constituted in the freely contracted and publicly expressed indissoluble bond of matrimony and is open to the transmission of life... [and it] is the natural institution to which the mission of transmitting life is exclusively entrusted”. Once again, the Archbishop, using various formulations, captures this.
The Code of Canon Law specifies that marriage is the “matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life and which is ordered by its nature to the good of the spouses and the procreation and education of offspring, has been raised by Christ the Lord to the dignity of a sacrament between the baptized.” Again, I think that the Archbishop is faithful to this formulation.
In spite of what Eduardo contends, I think that the Archbishop has capture accurately the essence of what the Church teaches not only for Catholics but for the good of civil society and, therefore, the common good. And he does this using an economy of words that is vital to the medium that he used in his blog.
I share Eduardo’s point that the Archbishop did not address the perils of divorce. But that is not the subject which the New York lawmakers are presently considering, and, therefore, this grave issue is not treated in the Archbishop’s postings. Neither is abortion. Ditto with euthanasia and assisted suicide. All of these issues have some bearing on marriage and family, but they are not what are at the heart of the present legislative debate. The legislators are, however, contemplating a radical redefinition of marriage, and that is the issue to which Archbishop Dolan is responding.
I disagree with Eduardo that the Archbishop has authored “unconvincing screeds aimed at producing nice sound-bites for the press.” By contrast to Eduardo, I think the Archbishop has distilled for a particular medium (i.e., blogging that does not favor detailed discussion) the essence of important moral teachings that have a bearing on not only where Catholics should go with the legislative proposals but where the entire state of New York ought to proceed. Eduardo confuses the issue addressed by the Archbishop and the legislature by introducing another matter dealing with what is the family. While they are related, they are not the same; moreover, the legislature is not defining the family—yet. But it is considering redefining what constitutes a marriage. I am confident that the Archbishop is capable of addressing the family definition issue elsewhere, but that is not what the New York legislature is now in the processing of attempting to redefine.
If Eduardo is dissatisfied with the Archbishop’s efforts in explaining marriage, I think many would point out that the Marriage Equality movement which favors the redefintion of marriage for “equality’s” sake has failed to demonstrate what is equality, first of all, and why the union of a man and a man or a woman and a woman is the same as, or is equal to a union of a man and a woman who, by themselves, have a far greater chance of procreating children than any same-sex union, by themselves, of doing the same.
As this is a blog entry, I guess this enough for one posting...
RJA sj
Sunday, June 5, 2011
Last week, the Chicago Regional Director of the NLRB issued a decision in a case between Saint Xavier University of Chicago and some of its contract adjunct faculty who wish to elect a representative and organize a bargaining unit. The University relied on the precedents of University of Great Falls and Carroll College (earlier NLRB decisions) and the 1979 Supreme Court decision in NLRB v. Catholic Bishop of Chicago in arguing its exemption from the NLRB’s jurisdiction. The University has further argued that it is a religiously operated institution and thereby exempt from the National Labor Relations Act (the Act). The Regional Director’s May 26, 2011 decision is [HERE].
The Regional Director held that the University is not a church-operated institution and is therefore subject to the Act, so its contract employees may proceed with their election rights in accordance with the Act. In his findings, the Regional Director acknowledged the University’s long-time association with the Sisters of Mercy and the Archdiocese of Chicago. Moreover, he mentioned in his decision that the University is recognized as a Catholic institution by the Archdiocese. He also recognized that it is corporately linked with the Council for Mercy Higher Education (the CMHE) which holds responsibilities and reserved powers to govern the University; in addition, he found that the CMHE links the University to the Church. The bylaws of the University, which has several Mercy sisters as members of the Board of Trustees, acknowledge that the CMHE retains several significant powers including the authority to preserve the religious mission of the school. However, the Regional Director also identified some of the substantive powers of the entire Board of Trustees that could extend beyond those of the religious women on the board. The Regional Director also pointed out that the juridical documents of the University state that to the “extent possible”, a majority of the Board “should be Catholics committed to the Church.” But he noted that there was no other qualification or disqualification taking stock of belief, creed, race, gender, or residence to be a trustee.
While the Regional Director acknowledged various programs that enhance the Catholic identity and Mercy character of the school, he found that the University was “guided by” but not “governed by” Pope John Paul II’s Apostolic Constitution Ex Corde Ecclesiae. Still, the Regional Director acknowledged other substantive areas where the University has solidified its Catholic heritage.
It appears that the University’s requirements addressing faculty and student composition were important to the Regional Director in reaching his decision about the University’s legal identity. He found that the University does not examine or consider the religious beliefs of its students, faculty, or trustees. He fortified this finding with the passage from the University’s articles which state: “No religious, racial, color or ethnic test or particular religious profession shall ever be held as a requisite for admission to said colleges or university or to any department belonging thereto … or for election to any professorship, or any place of honor or emolument in … any of its departments or institutions of learning.” Furthermore, he found that there is no requirement imposed by the University for its faculty—including adjuncts—to “espouse or emphasize Catholicism in their teachings or imbue students with the tenets of the Catholic faith.” Although the University requires that all students must take two courses in religious studies, the courses can be about any religion—not just Catholicism.
The Regional Director also placed some emphasis on the testimony of two adjunct faculty members who stated that nothing in their offers of employment or contracts mention anything about the Mercy Sisters, Catholicism, God, or religion. One of these adjunct faculty stated that he did mention his own religious practice (Greek Orthodox) to his hiring department but was told by the department chair that his religion, religious beliefs, or religious orientation “did not matter.” The department head apparently stated to this adjunct professor that continued employment by adjunct faculty is concerned with student evaluations but not with religion.
A crucial question for the Regional Director was whether the application of the Act would constitute “a significant risk of constitutional infringement.” In assessing and deciding upon this issue, the fact that there may be some nexus with a religious body is not crucial in assessing whether there is or is not an infringement. What is crucial is whether the University’s mission is religious—are faculty required to conform to and teach Church teachings where relevant; are faculty and students required to engage in worship, especially of the faith with which the institution claims affiliation. The Regional Director further stated that he was applying the “substantial religious character” test based upon applicable legal precedents.
In doing so, he noted that the CMHE’s role in the operation of the University is not of the sort that would generate “a significant risk of constitutional infringement.” Moreover, he cited several factors to substantiate his conclusion. The first is that the University’s faculty are free to function without any religious requirements or restraints. Second, while the University may be “guided by” Ex Corde Ecclesiae, the academic freedom of the faculty is such that they are “unfettered with regard to imbuing or inculcating students and curriculum with Church doctrine or religion.” Third, it appears that the University would not discipline or fire any faculty member if he or she did not “hold to Catholic values.” In this context, it appears that religion and religious values play no role in faculty hiring, retention, or promotion. Finally, although the University’s mission statement refers to the Church and the Mercy heritage, it is evident that the core mission and objective of the University is “to educate men and women irrespective of their religious beliefs.”
Let me offer some preliminary conclusions about the Regional Director’s decision. First of all, he appears to place the impact of his decision back into the court of the CMHE by noting their ability to change the articles of incorporation, the bylaws, and the mission statement. In making such changes, they could amend the vital hiring and firing procedures in the future and presently alter the mission statement. Second, it will be important to monitor any further review of the Regional Director’s decision which the University may pursue. Third, I am certain that many institutions of higher learning which claim the moniker “Catholic” will assiduously study this decision and weigh its impact on their own institutions.
The future of Catholic higher education is in our hands. But then, it always was.
RJA sj
Friday, May 27, 2011
During May 24 and 25, President Obama engaged the world and, in particular, the English people during his trip to Europe. During his time in the United Kingdom, he participated in a state dinner with Queen Elizabeth [here], delivered an address to the Houses of Parliament at Westminster Hall [here], and conducted a joint press conference with the Prime Minister, David Cameron [here].
During each of these occasions, the President talked about concurrences between the peoples of the United States and the United Kingdom. He rightly and properly acknowledged the social, economic, cultural, and, yes, legal ties between the peoples of his host country and the United States. In my own modest efforts in the classroom, I attempt to remind future lawyers of the indebtedness we Americans owe to the genius of the English rule of law and its legal system and the human laws which they have generated. Of course, I have always been intrigued by the expression attributed to John Adams that we are a nation of laws, not men, and I believe the origin of this expression is based on what we in the United States have inherited from our legal heritage from across the Atlantic Ocean. Of course there is a questionable side to Adams’s words if his expression is viewed to mean that the law is first and people are second, i.e., the human person is the subject of the law and not the master of it. From the perspective from which I consider the matter, the preferable meaning of Adams’s formulation is that the law, as a system of reasoned and objective moral norms, is equally applicable to one and all and protects each from the appetite of the other; hence, the law is servant rather than the master of the human person, all human persons regardless of their condition or location. In short, it is in this second understanding of Adams’s words that the person is protected from the whims and the caprice of his or her fellow travelers in this life.
The President used an important set of words to describe the heritage we share with the British people: there is an alliance of “shared values”, and he spoke of this common legacy on the three occasions to which I have referred. Queen Elizabeth helped define the values when she commented on the “honesty and hard work, courage and fair play, tolerance and curiosity, loyalty and patriotism, and of the sturdy alliances an enduring convictions with which ...[the United States] had met past challenges and would meet future ones.” Our President graciously responded by noting and acknowledging “the union of hearts based upon convictions and common ideals.” He elaborated a bit on this point by further stating, “Our relationship rests on common language, common history, common adherence to the rule of law, the rights of men and women – the very ideals born in this nation.” At Westminster Hall, the President additionally stated that, “Our relationship is special because of the values and beliefs that have united our people through the ages.”
But what are those ideals? What are those shared values? On what principles are they based? What constitutes the “rule of law” to which there is a “common adherence”? What is the foundation of this special alliance? Indeed, our President elaborated by speaking of a robust economy in which all have a role; he emphasized a protected environment in which future generations can flourish; he spoke of the determined need to withstand the bullies and thugs who threaten all peoples through terrorist enterprises. But there is more to what underpins the ideals and values shared by the two nations.
What is missing from the President’s definition of the alliance of shared values is the crucial role of the virtuous citizenship that must be combined with a solid understanding of the nature and essence of the human person. I do not think that the President intentionally omitted this, but it is clear he did not include these two matters in his addresses delivered in the United Kingdom earlier this week. I find that much of what the President said could effortlessly bring comfort to the autonomous individual who is isolated from others in his or her cocoon of liberty fortified by separation from virtue and the understanding of what is the human person and why is he here on this planet.
So what is it that is so important about the virtuous citizen? He or she treasures the freedom about which the President spoke, but this person also recognizes that the rights and claims that attend this freedom must surely be accompanied by a healthy understanding of responsibilities and obligations to all others who have the right to make and perfect the same claims.
The virtuous citizen, I suggest, would be cognizant of this. The virtuous citizen would know that what has made the rule of law established by the “alliance of shared values” so admired in many places throughout the world is the recognition of what is authentically just—to each person his or her due, and the further recollection of what is justice—right relationship between and among all members of the human family. The virtues of humility, prudence, courage, hope, fidelity, wisdom, and others make this recognition and recollection essential elements of human existence and the actions which ensue from this existence.
The President did speak of the importance of human dignity to the shared values and ideals. But this dignity must be founded not on what powerful and influential pressure groups say it is but rather on what right reason establishes it to be. Sometimes this conclusion is contrary to what the culture insists. Illustrations of this point are found in human history associated with these shared ideals. But, the examples of Thomas More and John Fisher quickly come to mind. As Jacques Maritain defined it in 1943, human dignity is that which is due the person simply because he or she is human. With this point about dignity in evidence, the virtuous citizen would acknowledge that the core of the shared values of which the President spoke must necessarily incorporate the non-derogable right to life and continued existence by every member of the human family if human dignity is to have substantive meaning; moreover, these values must come to the aid and protection of the fundamental unit of every human society, viz. the nuclear family.
Without recognition of these points, the shared values of which the President frequently mentioned can be negatively influenced by human whim and caprice as I have already stated. The circumstance where these values are compromised by human fancy would be the very sort of thing of which Blessed John Paul II taught can make a democracy a thinly disguised totalitarianism. The President appeared to acknowledge something about the beliefs of the virtuous citizen when he said, “It has been the values that we must never waver in defending around the world – the idea that all beings are endowed by our Creator with certain rights that cannot be denied.” The virtuous citizen knows from where his or her being originated and that he or she is not the only one who was so created.
Let us pray that our President and the other civil leaders who heard him will understand the truth about the shared values of which he frequently spoke and incorporate them in the heart of their labors. When this happens, we will know that our civil leaders are also virtuous citizens for whom mere consensus about solutions to the grave or pressing issues of the day that confront the human family is insufficient for the common good of all who have been “endowed by our Creator with certain [and inalienable] rights that cannot be denied.”
RJA sj
Saturday, May 21, 2011
I would like to thank Rick for his posting regarding his post on Christian Smith’s new book What Is A Person? A few years ago, I had the wonderful opportunity to address a similar question at St. Thomas University where I was graciously hosted by several of our Mirror of Justice friends at that fine institution. On that occasion, I acquainted the audience with the words of Blessed John XXIII who stated in Pacem in Terris, N. 9,
Any human society, if it is to be well-ordered and productive must lay down as a foundation this principle, namely, that every human being is a person, that is, his nature is endowed with intelligence and free will. Indeed, precisely because he is a person he has rights and obligations flowing directly and simultaneously from his rights and obligations flowing directly and simultaneously from his very nature. And as these rights and obligations are universal and inviolable so they cannot in any way be surrendered.
I have the impression that these words in the legal academy of today—and much of the rest of enlightened society—would sound strange. While there may be agreement on what is a human being, it appears that there is disagreement on what is a person. But the disagreement should not exist.
Why?
Blessed John has it right, and his words provide the means for understanding who is/what is the human person. As legal academics, we know that the positive law recognizes that there are two kinds of persons before the law—juridical and natural. In the context of the matter investigated by the Smith book, the inquiry concentrates on natural persons—you and me.
But what constitutes this entity we call the natural person?
Lawyers and the rest of society, surely since the 1973 decision in Roe, have been arguing over this and related issues for some time. It would also seem that the connection between rights or claims and obligations or responsibilities identified by Blessed John confound many, including some members of the academy. Of course the debates and disagreements that emerge from the juxtaposition of these two subjects, i.e., rights and obligations, were brought to a head in Dred Scott. There was no question that in reality Dred Scott was a person; however, the law, as formulated by five of the seven members of the Supreme Court (who, by the way were also persons) said otherwise. We sort of get that same conclusion, albeit in different wording, in Roe v. Wade from the majority opinion. What rights can a human being/human person claim, and what obligations are owed to this claimant? That is the question.
It took the Civil Rights amendments to the Constitution to address and correct Dred Scott. It will take something else to rectify Roe. While the law can define/redefine the juridical person which is, in essence, a legal fiction, should it be able to do the same regarding the natural person? In this context, the dissenting opinion of Judge Adrian Burke in Byrn v. New York City Health & Hospital Corp. explains well the limitations on the state to determine the reality of who is a natural person and therefore who should be such a person before the law. The implication of his dissent was that if the state could determine this matter by ignoring the reality of the human being, the basis for fundamental human rights would eventually be undermined by human whim and caprice. That is what happened in Roe. This is also what happened in the Germany of National Socialism and in the United States of the ante-bellum era. These historical contexts demonstrate how human law, when detached from right reason, can betray recognition of who is and must be considered a person. The failure to acknowledge the reality of the human being who is the human person brings to a head the relationship between rights and responsibilities noted by Blessed John.
The failure to understand this relationship which is crucial to answering who is the human person continues to the present day. What is needed to rectify this failure? The wisdom of right reason and objectivity to illuminate and chart our course so that we might better understand who is person is essential, and John XXIII understood this well and shows the path necessary to protect the most vulnerable members of our human family.
Why should we worry about them? Because they are us, and we are they. The right reason of the Silver and Golden Rules merge, make sense, and apply here: “Do to no one what you yourself dislike,” and “Do to others whatever you would have them do to you.” This is the complementarity of rights and obligations noted by Pope John. With these two rules and the assistance of John XXIII in mind, the convergence of God’s desires for the natural person and the human law will enable those engaged in the debates about who is person understand with greater wisdom what is at stake.
RJA sj
Saturday, May 14, 2011
Tomorrow, May 15, 2011, is the 120th anniversary of Pope Leo XIII’s encyclical letter Rerum Novarum. While it was not the first ecclesial text addressing matters of concern to Catholic social thought, it is a major catalyst for CST in the present age. Of course, it should go without saying that Catholic social thought is an indispensable pillar of our project here at the Mirror of Justice which addresses Catholic legal theory. I am sure that Pope Leo’s encyclical will remain a major and key foundation stone of Catholic social thought well into the future. Moreover, it has been the stimulus for major encyclicals or apostolic letters by Pius XI, Paul VI, and John Paul II. It also provided a means for the Church, through the Petrine Ministry, to consider and better understand her teachings as new issues emerged in societies around the world.
In May of 1991, Blessed John Paul II commemorated the 100th anniversary in his Centesimus Annus. It was then thought by many, and reasonably so, that with the crumbling of totalitarian systems—especially the Soviet Union—the important contributions of Catholic social thought to the betterment of the human family could proceed without real impediment.
I wonder, though, if that is still the case today on the 120th anniversary. My reason for saying this is due to something which Blessed John Paul stated in Centesimus Annus: “As history demonstrates, a democracy without values easily turns into open or thinly disguised totalitarianism.” [N.46] A few years later, in his encyclical Evangelium Vitae, he reiterated this point by stating: “the value of democracy stands or falls with the values which it embodies and promotes.” [N. 70] Blessed John Paul elaborated on this by offering for consideration the context of a democratic majority which “decrees that it is legal, at least under certain conditions, to kill unborn human life, [but] is it not really making a ‘tyrannical’ decision” which is “legitimated by popular consensus?” Popular consensus today is growing on other fronts involving other issues that also challenge the Church’s vital social teachings. Might this mean that other tyrannical decisions legitimated by popular consensus are just around the corner?
Given the anniversary we commemorate tomorrow, it would be important to reflect on this. Why? The Church in the present day still encounters difficulty in proclaiming the Good News and proposing the merits of her social doctrine. The well-formed consciences of those who state publicly and teach the truth about the essence and nature of the human person are under scrutiny. Ironically the obstacle to the protection of the well-formed conscience is no longer totalitarian dictatorship. It is or is becoming the mechanisms of democratic government for which the values that uphold the truth about the human person mean little or nothing.
The anniversary, at a minimum, gives us yet another opportunity to consider and discuss—while that is still possible—the values that our polity embodies and promotes. A happy and blessed anniversary to my friends here at the Mirror of Justice and to our faithful readers!
RJA sj
Wednesday, May 4, 2011
The Pontifical Academy for Social Sciences has been meeting in Rome under the expert leadership of it's President, Mary Ann Glendon. The theme of this year's meeting is religious liberty, a topic of great interest to the Mirror of Justice community.
I do not have the capacity to link to the Vatican website pages with her detailed address as well as the Holy Father's message to the Academy. However both are easily accessed in today's bulletin of the Holy See's Press Office's page. Incidentally, both addresses are in English.
Professor Glendon's detailed intervention addresses a number of pressing concerns such as: pluralism; the nexus between Christianity and authentic human rights; and other important issues.
As our dear friend and colleague, Rick Garnett, might exhort, check it out!
RJA SJ
