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.

Sunday, March 25, 2007

Failing America’s Faithful

On a recent trip back to Rome from the US, I read Kathleen Kennedy Townsend’s new book entitled Failing America’s Faithful: How Today’s Churches Are Mixing God with Politics and Losing Their Way. While the book provides an interesting read, I must question some of the author’s assertions. While I realize that her work was not intended to be a scholarly examination and presentation of the confluence of law, religion (particularly the Catholic faith), and public life, I was surprised that the author’s bibliography did not contain any Church texts whatsoever. However, authors such as Joan Chittister, Harvey Cox, Mary Daly, E.J. Dionne, Jr., Elisabeth Schüssler Fiorenza, Elizabeth Johnson, and Gary Wills made the cut. Joseph Ratzinger, Eugenio Pacelli, Angelo Roncalli, and Karol Wojtyla amongst others, did not.

One of Kennedy Townsend’s central and inspiring premises is that “Churches could be the place to encourage, nurture, and promote moral action.” However, in her estimation, they fail in this because “faith in America now divides communities.” It struck me that she has made a mistake in this assertion. I do not see faith dividing communities or anything else, but I do see political issues such as abortion, bioethical questions, euthanasia, same-sex marriage—to mention but a few—providing the grist for this divisive mill. She makes a further important claim that “We no longer hear in our churches, or in our homes, the daily reminder that to walk in God’s path is not just to pray or give charity, but also to work for justice for every creature on His earth.” (Her italics) The assertion is all the more startling when one considers the author’s personal record when she held public office—did she extend justice to all of God’s creatures? She equates the mission of the Church—her Church as she often says—with social justice. Little or nothing is said of a deep faith that takes into account God’s truth, sin, redemption, and salvation. Consequently, her prose reads more like a political treatise than it does an account of faith in public life.

On several occasions she says that the Bible is silent on issues such as contraception, abortion, same-sex marriage, and embryonic stem cell research, but the Church preoccupies itself with these public issues. She then critiques Her Church and other denominations for not connecting religious teachings with pressing issues such as “corporate greed, environmental degradation, failing schools, or lack of health care.” These are surely important issues, but I do not remember the Gospels addressing these either; however, she does not mention that these items are also absent from the canonical texts of Sacred Scripture.

Nevertheless, she insists that she wants the Catholic Church to play its part in the world. In this contexts, she contends that the Church must be able to handle the issues of the day, which include contraception, family planning, and the role of the laity and of women in the Church and society. With regard to the role of the laity, the author does not indicate any familiarization with Pius XII’s 1939 encyclical Summi Pontificatus wherein he made some important points about the significant role of the laity. But, it again strikes me that the Church has addressed all these issues that she has raise and many more besides, but it seems that it has not done so in the fashion that the author prefers. Perhaps that is the real bone of her contention.

At another point she makes the interesting claim that “A number of Catholic leaders such as Father Robert Drinan suggested that the Church refrain from taking a political position on abortion on the grounds that all moral issues need not be legislative ones. But the hierarchy in Rome refused that stance.” Her statement begs the question what was the Church to do when, in fact, abortion became both a legislative and judicial matter? Was the Church, its hierarchy, its members to remain silent? Where would justice and the faith be if they did remain silent? But her response to my question is this: “I—and many other Catholics—were faced with a Church whose teachings seemed increasingly out of step with our lives. Our all-wise Church, which had seemed so embracing, so understanding of human sin and weakness, did not seem so wise anymore.” She quickly follows up this critique by stating that “Whenever I begin to despair of the Church’s recent retreat from the fight to create a just society, I remind myself of the moments when [it] lived up to its name, rose above the denominational limits, and spoke out on behalf of justice for all people.” This assertion demonstrates how unfamiliar she is with her Church, its teachings and its actions across the globe. It seems that when the Church takes a position contrary to her own, it is divisive; but, when it acts according to her views, it is wise.

She concludes her most blistering critique of the Church with her vision for a “reformed Church” that “can advance the vision of love of neighbor that the Gospels call for. As Jesus said, ‘As you did it to one of the least of these, you did it to me.’” I don’t believe the author took into consideration her own public record when she penned these lines about Jesus’s discourse on the Last Judgment from the Gospel of Saint Matthew.

When all is said and done, this author hopes and prays for a “new beginning” for her Church so that it can “preach a more balanced vision of the earthly ethics our faith requires—a bold, broad form of Christian virtue.” I believe her prayers have been and continue to be answered in a positive fashion, but her vision—perhaps for the time being—does not enable her to see and take account of this.   RJA sj

Tuesday, March 13, 2007

Apostolic Exhortation: Sacramentum Caritatis

Here is the link [HERE] to the Holy Father's Apostolic Exhortation Sacramentum Caritatis.

RJA sj

Sunday, March 11, 2007

Responsibility

I have read with great interest many of the recent MOJ postings that cover a wide variety of issues, and I have pondered two interrelated questions: to which do I respond; and, how do I respond? But other reports have also caught my eye in recent days. I just read several of the news reports covering the group of learned people who are predicting dire consequences for our planet and its inhabitants over the coming decades. More close to home in institutions of higher education that claim affiliation with the Church, I have read about initiatives to increase the number of opposite sex living arrangements and the distribution of condoms to enhance and protect the “rights of students in the face of reality” (I can just imagine what that means to some!).

My search for answers to the questions to which of these do I respond and how do I respond on the investigations of others concerning human rights, caritas, Catholic higher education, the economy, ecological concerns, terrorism, and on and on appeared rather hopeless until I recently decided to reply to an invitation to present a paper in a symposium on responsibility during the summer of 2008.

I have been told by some wise people who have now gone home to God that as they entered the twilight of this life, each experienced an epiphany or manifestation of sorts. While their respective contexts were diverse, each of the individuals who had mentored me raised the same question: what will your answer be to God when He seeks an accounting from you? The response is not to be one expected to please or to entertain or to win approval. It is to be truthful (we may fool others, but it is not possible to fool God or ourselves). I think some of what I am suggesting about responsibility is represented in Steven Spielberg’s film Schindler’s List. When Oscar Schindler is reflecting at his twilight on what he did and what he failed to do during his life, he says: “if I had sold this, I could have bought one more life; if I had done that, I could have bought one more life…” That is the sort of human accounting that I can see in the future that each of us will face.

This seems to be an appropriate way to begin to examine the matter of responsibility—of answering to ourselves and others when an accounting of acts and omissions is expected. The direction in which I am presently headed with this reflection that has some bearing, I think, on Catholic Legal Theory is this: are we not to be held accountable for the things we did and the things we did not do but could have done in our lives before the time God has allotted us expires? I submit that the answer to this question is yes. For that is what responsibility is: answering/responding to God, our neighbors, and ourselves, who share a proper claim to an accounting of our acts and omissions. The vocation of responsibility is certainly that of each Christian, but surely it is the special vocation of those who claim to be teachers who lead others in the search for wisdom and truth—not only human, but also divine.    RJA sj

Monday, March 5, 2007

A trip through Lexington

This morning I traveled through the town of

Lexington

, MA on my way to the doctor’s office. As has been previously noted by several MOJ contributors, this is the community in which a group of parents unsuccessfully sued the public school system over the mandatory use of the Linda de Haan/Stern Nijland book “King & King.” I have examined this book and its sequel, “King & King & Family.” I sympathize with the parents who brought the suit. In spite of a recent editorial by the Boston Globe which applauds the dismissal of the suit and tacitly approves the use of the “King & King” book in the diversity education of kindergarten and first and second grade children [HERE], the Court’s opinion on the limitation of parents’ rights is deeply troubling as is the Globe editorial. As I previously mentioned, it seems that the

U.S.

’s international legal obligations regarding parents’ rights and education of the children are irrelevant. Also problematic is the underlying view that the court’s decision promotes rather than restricts the concept of equality for all. The first volume, “King & King” tackles the marriage issue. The second volume, “King & King & Family” takes care of the adoption issue by same-sex couples. The understanding of equality posed by these two books (perhaps others are in the works by Ms. de Hann and Ms. Nijland), is flawed. More discussion is needed on this important issue, and I hope to be working on it during the coming academic year in a series of essays examining the question: what is equality? From my perspective, the Globe and the de Haan/Nijland team have presented a mistaken view of what equality is. With God’s help, I hope to offer another view that may be of interest to MOJ contributors and readers.    RJA sj

Thursday, February 22, 2007

Benedict on the Law

Last week Pope Benedict addressed the participants who gathered at the International Congress on Natural Law convened here in Rome. The English translation of his addressed delivered in Italian is [HERE]. Interestingly, the Holy Father began his address by discussing topics he has examined earlier that deal with the problems presented by the fragmentation of knowledge tolerated by some intellectuals. In the context of the law, he stated that rules and the structure of law and legal systems need to be understood in the context of their human application. Thus, it is essential for the Pope that the law never be divorced from the ethical messages that it must contain and advance. While the empirical study of humans and the political and legal institutions that they establish is important, the work of those involved with the examination of law must not forget the vital role of the metaphysical. There are transcendent values essential to the law that need to be taken into account; if these are absent from the work of those involved with the study or the making of the law, there is not anything to preclude the lawmaker, or anyone else for that matter, from relying upon nothing but the will of the lawmaker or those special interests influencing the lawmaker. The touchstone needed is the moral, natural law that provides the necessary ethical imperatives that guard against the reign of pure positivism. In this regard, those who make the law need to be mindful of the danger presented by political compromises that take no account of these ethical imperatives, which guarantee the protection of all, not just some members of society. For those of us interested in Catholic Legal Theory, the Pope’s address—and, I am sure, his future elaborations of it—will continue to be an important source for our study, thought, teaching and writing.  RJA sj

Tuesday, February 20, 2007

The trains are back on track—the same one

Over the past several months a new responsibility has garnered a great deal of my attention and daily efforts. However, I have done my best to remain alert to trends in society and the law that have some bearing on Catholic Legal Theory. Other contributors to MOJ have, needless to say, done well in pointing out various developments in law and society that bear in relevant ways on the core project of Mirror of Justice. I have let several opportunities to comment on some of these trends pass because my attention and energies had to be focused on other matters.

But, the time has come once again to offer some reflections on evolving conflicts between members of society and the state that emerge as a result of different understandings of human nature involving religious liberty and freedom of conscience. While I have offered my own commentary on these issues in past MOJ postings, I took the occasion last May to analogize these conflicts as trains traveling on the same track in opposite directions [HERE]. The trains are back on the same track and once again racing toward one another, this time in Lexington, Massachusetts. Yes, the place in which the shot heard round the world was fired.

The controversy, for the time being, is between the several families of Lexington and the public school system of that town. The families have objected to the school system’s mandate to teach, in a positive manner, about homosexuality and to the school system’s declaration that parents have no right to object and ask that their children be exempt from this instruction. If I recall correctly, back some decades ago when prayer at school events was the issue, the suggestion was previously made that objecting families could simply not attend the particular event. However, this eventually led to the Supreme Court’s decision in Lee v. Weisman (1992) in which prayer at a school event was a crucial issue. In the case involving the Lexington families, representatives of the school system have stated that the teaching in question is obligatory and that the only option is for the parents to withdraw their children from the public school system. Again, this theme of withdrawal from obligatory events was a theme briefly addressed in Lee v. Weisman. Unlike that case, however, where attendance at the graduation exercise where the non-sectarian prayer was to be offered was not obligatory to receive an education and graduate (daily prayers in school having been abolished earlier), attendance at school to receive an education and to graduate is obligatory.

It appears that much of the Lexington controversy emerged from the mandatory “diversity training” in which first and second graders read and listened to the story “King and King” and “Who’s in a Family”—two publications with very strong same-sex love stories. Representatives of the school system have argued that this diversity training is essential to a “legitimate state interest” that combats discrimination “on the basis of sexual orientation” and eliminates the perpetuation of stereotypes. These officials have also insisted that parents have no right to control the ideas that schools expose to their children once the children enroll in these public institutions.

Through their counsel, the parents involved in this case, Parker, et al. v. Town of Lexington, et al., No. 06-CV-10751-MLV, USDC, District of Massachusetts, have argued that they “have the right to direct the moral upbringing of their children.” Surely their claim can be substantiated on the relevant international legal right of parents to which the United States is obliged to follow since it is a party to the International Covenant on Civil and Political Rights. Article 18.4 of the Covenant specifies that, “The States Parties to the present Covenant undertake to have respect for the liberty of parents… to ensure the religious and moral education of their children in conformity with their own convictions.” The Covenant is based on the Universal Declaration of Human Rights which, in Article 26.3, specifies that parents “have a prior right to choose the kind of education that shall be given to their children.” As the travaux prèparatoires of the UDHR indicate, this provision came about to avoid and eliminate the attempt of the National Socialists in Germany to poison children’s minds through the unqualified state control of education. It would appear that the Lexington school system, by the position it has taken, is trying to do that which the Universal Declaration and the International Covenant on Civil and Political Rights forbid.

In the context of Catholic Legal Theory, we need to take stock of the fact that Pius XI in two of his encyclicals, Non Abbiamo Bisongno (1931) and Mit Brenneder Sorge (1937), expressed his concern about the totalitarian efforts of the state to control the educational process of children in Italy and Germany. For those of us interested in Catholic Legal Theory, we must be conscious of the concerns raised by Papa Ratti over seventy years ago. We might think that the day of the totalitarian state in which Pius XI lived is over. But, is it? The evidence from the Parker case might suggest otherwise.

In the coming weeks, I will be addressing some of these issues in more detail. On March 15, I shall be delivering a lecture at Boston College Law School entitled Regensburg and Beyond: Pope Benedict and Religious Liberty. I will also be delivering a paper, Conscience, Religious Liberty, and Totalitarian State at the conference on The American Experiment: Religious Freedom convened by the University of Portland from April 12-14.

In the meantime, the Parker case merits close attention as the trains once again head toward collision. And for those of us concerned about Catholic Legal Theory, religious liberty and the protection of conscience and parental rights, the work of our minds and the efforts of our prayers will surely be in order.    RJA sj

Monday, February 19, 2007

A rose by any other name… More on Speech Codes

I just read Rob’s posting on the Scottish National Health Service’s action regarding the elimination of discriminatory language. I should like to see the entire text. I wonder if they will also remove language that discriminates among doctors, nurses, technicians, office staff, patients, vendors, visitors, and chaplains. It strikes me that offering patients different types of treatment based on their medical condition, even though warranted, is discriminatory, too. I don’t know how the National Health Service will handle the person who has no relatives, partners, friends, family, etc.—in other words, someone with absolutely no relations with any other human being. Sounds like more discrimination. Perhaps the National Health Service should concentrate on providing good medical service and rather than engage in attempting to engineer human nature.   RJA sj

Wednesday, February 14, 2007

Onward, Christian Fascists, marching as to war, with the cross of Jesus going on before…

Thanks to Rob for his posting “Christian Fascists on the March!” I followed the link he provided and read in its entirety Chris Hedges’ brief essay The Rise of Christian Fascism and Its Threat to American Democracy. The Hedges’ essay makes a legitimate point that religious belief can be manipulated by persons interested in dominating society. But to suggest that Christian movements today are the equivalent of National Socialism is misplaced. While the modern media can be used by anyone to convey a message that offers hope and the promise of a better future, to argue that conservative Christian organizations have a monopoly on these persuasive tools is mistaken. Why is it, then, that a number of prominent American politicians are beginning to amass enormous sums of money for the Presidential bid of 2008? For media time that will likely have some influence on the American public and electorate, methinks. These contenders for high public office and their media consultants know the importance of the media—as do commercial enterprises, as do sports figures, as do entertainment celebrities... The media can surely influence voters and the viewing public in a powerful way, as can televised evangelists, as can popular musicians, as can anyone with the resources who can find access to sending a message to tens or hundreds of millions of people. But to suggest that conservative Christians are the only groups doing this with success is out of place.

Moreover, to argue that the influence of conservative Christians constitutes an “unchecked rape of America” is an extraordinary and, I suggest, implausible claim. For those skeptics who may question my view, may I suggest that they look at today’s television news or internet news services to witness the powerful competition that conservative Christians have in influencing—I’ll put aside the raping element suggested by Hedges—American and other societies. If the United States were facing a real threat from a conservative Christian hegemony, I am confident that the ACLU and Americans United for Separation of Church and State, to mention but a few guardians of American autonomy, would be leading their own counter-crusade and without the cross of Jesus going on before as their banner. To label conservative Christians as “the most dangerous mass movement in American history” is an extraordinary claim. But it is unsubstantiated, and I wonder why it is being made? If one finds tiresome or tedious the Christian message carried on the airwaves, satellites, cables, or the internet, one only need switch the channel or website for relief. But if this Christian message is eradicated, what will be left? As Rob asks, “Who’s the fascist now?”   RJA sj

Wednesday, February 7, 2007

A response to the question: what does it mean to be in communion with the Church?

I would like to thank Steve for his important and timely posting about the US Bishops November 2006 statement on the Eucharist. There is a lot to Steve’s posting, and there is a lot in the Bishops’ statement. But neither Steve’s posting, the Bishops’ statement, nor my reflections could cover all issues that may arise about who should receive the Eucharist and who should not. Having said this, let me provide an imperfect response to some of the points Steve has presented and on which he sought the thoughts of MOJ participants.

First of all, there exists an abundance of guidance and instruction on many of the issues Steve has raised (abortion, marriage, masturbation, pre-marital sex, artificial birth control) and some that he has not but are on the minds of many Catholics today (euthanasia, embryonic stem-cell research, capital punishment, the use of armed force, etc.). The Catechism of the Catholic Church is always a good place to begin when one is searching for answers about what a Catholic should do and should avoid. Those with computer or library access should have no difficult obtaining access to Conciliar documents, encyclical letters, bishops’ conference texts, apostolic constitutions, curial documents, etc. Another useful resource is the Compendium of the Social Doctrine of the Church and the websites of the US Conference of Catholic bishops and of many US dioceses.

But still, as Steve suggests, there may still be some questions on particular points. Well, pastors, including bishops, have the office and, therefore, the responsibility to help the faithful assess whether a person may receive the Eucharist or not. In this context, the Church has the sacrament of reconciliation (confession and penance) to assist each member of the Church—clerical or lay, but all being members of the Body of Christ—to determine whether he or she is in a sufficient state of grace to receive the Eucharist. These are the resources useful for helping to address his underlying question. These provide the foundation for a proper exercise of the examination of conscience that serves as an appropriate prelude to the sacrament of reconciliation that may be needed before participation in the Eucharist. And surely a good and thorough examination of conscience, as the Church teaches, is a fundamental step before receiving the Eucharist. Statistics demonstrating that some percentage of a particular population agrees or not with some teaching of the Church, while they may be interesting, are not determinative of the question: who should receive communion?

In this context, I recall another debate over the use of statistics which, while interesting, were not determinative of the situation: suppose there are fifty, forty, thirty, twenty, ten righteous within the city… will you destroy it? “No” was the answer that God gave Abraham. I often think that if their walk continued a bit further and the question concerned the existence of one righteous, the answer of God would have been the same.

Steve poses the case of the Bishops’ Conference preparing a statement with no “wiggle room.” Knowing that the text to which Steve referred is a pastoral rather than a legal document, I wonder if it would be possible to draft the perfect legal document? In this regard, one need not think solely about Church texts that are juridical. After all, many of us spend countless hours in offices and classrooms demonstrating why the “perfect” legal text is not perfect at all. I guess that is why Sacred Scripture reminds us that only God is perfect, but we, as disciples of His Son, are called to become more perfect than we are. And the Church, through its ministry, teaching, and sacraments, is there to help in this pursuit.

But let me continue with Steve’s question and assume with him that the Church and the Bishops’ Conference or some appropriate dicastery in Rome issued such a text, if that were possible. Steve suggests what the result may be: a smaller Church, that is, a smaller number of people considering themselves Catholics. While I cannot disagree with Steve’s observations, I personally do not know the answer. I do know a bit about the Church’s history since its beginning, and I am aware that each of us who claims to be Catholic or once made that claim is a sinful person. The measure and degree of sinfulness waxes and wanes, but we must be mindful that God sends His people help to cast off temptation and seek that greater perfection, that deeper holiness, and that greater goodness that can be found within each person who desires to abandon the sinful and put on Christ. I am of the view that God has never abandoned His people; however, it is His people—individually and in community—who have turned their backs to God. Percentages really are unimportant, but human nature and its ability to remain faithful or to succumb to temptation are facts.

God has called His people to holiness and to fidelity. What pollsters, interest groups, lobbyists, or individual theologians suggest and argue is nice to know. But, what God asks of us is pretty clear. When we need help to determine what that is, our Holy Mother the Church is there to help. Each person through his or her baptism has a role in evangelizing—going forth to bring the Good News to those who have not heard it. But, ultimately it is up to each of us to accept it or not. That is the free will God has given everyone; it is up to us to exercise it with fidelity. But if we chose not to on any particular occasion through our own insistence that my conscience, right or wrong, is the voice I follow, God will still be there to welcome us home if our sincere intention is ultimately to seek His forgiveness, understanding, and mercy.

Like Steve, I, too, am interested in what others think. But frankly, I don’t think God is interested in opinion polls and the percentages they reflect. I don’t think God is interested in popularity polls or that which is deemed politically correct at any moment. His truth exists, and His Son has shown us the way to that truth that he personifies. It is up to us to accept that way and God’s Truth or not. As Pope Benedict said at Regensburg and as the Second Vatican Council did in December of 1965, there is no compulsion in religion, in belief, in true faith. Businesses may be interested in increased market shares; and governments in larger percentages of electorates; but the Church is interested in the salvation of souls, and, I believe, so is God. If I may borrow from St. Paul, it’s running the race and finishing that is important—all win who discipline themselves up to the finish line and remain mindful and observant of what God asks along the way.     RJA sj

Friday, February 2, 2007

An initial response to the question… regarding faith and objectivity

Thanks to Rob for his important posting. The view expressed in his posting, namely:

“The pragmatist will respond that, while the belief of objectivists in natural principles is sincere and has consequences (when they act on this belief), the claim itself is wrong—there are no such things as universal, objective, absolute principles.”

Fair enough.

But the proposition denies the the existence of God (acting on the beliefs of this perspective, I suppose). The belief in the existence of God is, first and last, essential to Catholic Legal Theory, but the matter of reason seems to be missing from the pragmatist's critique as has been proffered. Some may view the existence of God a belief, and let it go at that. Others believe it because it is a reasonable and rational proposition that, when all is said and done, considers and accepts the belief not only on faith but on reason--the two being inextricably intertwined.   RJA sj