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.

Friday, June 7, 2013

Cooperation with evil and setting the terms of engagement

By Rick Garnett

In this post, NCR's Michael Sean Winters observes, in the course of discussing the HHS lawsuits and the activities of the USCCB in support of religious liberty, that "[the Amish] model is not our Catholic tradition. We do not shut out the world, we engage it."  This observation is connected to his concern that the bishops and other critics of the HHS mandate have over-emphasized the issue of culpable "cooperation with evil," and thereby lost sight of the fact that "[t]here is simply no way to engage a sinful world without somehow participating, even cooperating, in the evil in the world."  The very reason, he continues, the Church has carefully developed and deployed the notion of "remote material cooperation with evil" is "testimony to the Church’s tradition of going out into the world and not becoming an Amish-like sect."

I have described the nature of the burden that the HHS mandate imposes on Catholic institutions in terms of integrity, mission, witness, and character, and not in terms of "cooperation with evil," because I think it is important to remember that "religious freedom" involves more than a guarantee that the political authorities will not require us to sin.  The mandate burdens the religious freedom of, say, the University of Notre Dame, in a way that violates federal law, even if the University can and does end up complying with it.  (I think that Michael and I agree on this point.)

A point I would add to his post, though, is this:  It is true that the Church, and Christians, can and must be "engaged" in and with the world.  Some are called to the monastery and the cloister, but I take it that the Church's mission is to fulfill the Great Commission and to live out Matthew 25. That said, there is no reason for the bishops to accept or take as given the state's increasingly aggressive efforts to "set the terms" of that engagement in ways that require the Church's social-welfare activities to be secularized, or to mimic the activities of state agencies.  It is not "sectarian," or culture-warrior-ish, or narrow, or Puritan, or Amish for the bishops to say, "look, we are going to stay here, in public, and feed the poor and fight for justice.  And, we'll play by the rules as we do so.  But, those rules need not and should not require us to secularize and they should not proceed from the premise that religion belongs in private or that social-welfare work somehow belongs to the state."  Those who are insisting that the bishops should not allow a misguided and unrealistic desire for purity to cause them to shut down important social-welfare activities rather than submit to legal conditions have a point -- i.e., these activities are important and it would be a big deal to abandon them rather than comply with these conditions -- but they should not lose sight of the fact that these conditions are contigent, not given, and they should join the bishops in doing all they can to oppose conditions that needlessly burden the mission and character of religious institutions.

"Pacem in Terris at 50"

By Rick Garnett

Here's George Weigel, at First Things, writing about the anniversary of Pacem in Terris.  Among other things, he notes:

 The second enduring impact of Pacem in Terris was to have inserted the Catholic Church fully into the late-modern debate over human rights, aligning the Church with those human rights activists who played key roles in bringing down the Berlin Wall and ending communist tyranny in Europe—a historic transition that made “peace on earth” (including the disarmament called for by John XXIII) more of a reality. Like many United Nations documents, and like subsequent Church statements, Pacem in Terris engaged in “rights talk” rather loosely, with virtually every imaginable social good being described as a “human right.” That has led to some enduring issues, even problems, in the explication of Catholic social doctrine. But matters of conceptual precision notwithstanding, there should be no doubt that the Church’s deployment of the language of “human rights” has helped magnify its moral voice in world affairs.

I remember, in college, confidently asserting to my mentor and philosophy teacher, who was supervising my senior thesis, that "rights talk" was problematic, etc.  He said (and this was at Duke!), "you should read Pacem in Terris."  Good point.

Thursday, June 6, 2013

Immovable ladders, the Church of the Holy Sepulchre, and property rights

By Rick Garnett

This piece, from Slate, by "Atlas Obscura," is wonderful.  Was "Andy" striking back at the heavy hand of status-quo bias, trespassing, stealing, occupying, or -- like that French archeologist in Raiders of the Lost Ark, messing with things best left alone?

A ministerial-exception case to watch in Cincinnati

By Rick Garnett

The Washington Post reports that a jury found that the Archdiocese of Cincinnati unlawfully discriminated against a Catholic-school teacher whom it fired after she became pregnant via artificial insemination.  The jury awarded the teacher more than $170,000 (including $100,000 in punitive damages).  The trial court had disallowed the ministerial-exception argument because the "computer technology teacher" had no "ministerial duties." 

The Archdiocese also argued that the teacher was fired for not complying with her contract, but the fired teacher, "who is not Catholic, had testified she didn’t know artificial insemination violated church doctrine or her employment pact.  She said she thought the contract clause about abiding by church teachings meant she should be a Christian and follow the Bible."

As many (including several of us here at MOJ) have noted, the Supreme Court's important ruling in Hosanna-Tabor did not resolve the debate over the scope and coverage of the ministerial exception.  My own view is that a teacher -- of any subject and whether or not that teacher is Catholic -- in a diocesan school is a "minister" but . . . stay tuned.

Tuesday, June 4, 2013

"Pursuing the Truth in Love"

By Rick Garnett

Over at America, Matt Malone has this essay, "Pursuing the Truth in Love," about "the mission of [the magazine] in a 21st century church."  (HT:  Jana Bennett at Catholic Moral Theology).  In the piece, he proposes (among other things) that "[w]hile we may have solved the problem of the relationship between the church and the state, the problem of the relationship between the church and the political remains. Solving that problem, or at least presenting credible solutions to it, is the pre-eminent task of the Catholic media in the United States."

I think all of us who participate, as Catholics, in "public discourse" should read Malone's piece.  I don't expect that everyone will agree with all he writes (!), but there's a whole lot in it for all of us, and each of us, to think about.  He concludes with this:

“Love manifests itself more in deeds than in words.” America makes the following commitments:

1. Church. The church in the United States must overcome the problem of factionalism. This begins by re-examining our language. America will no longer use the terms “liberal,” “conservative” or “moderate” when referring to our fellow Catholics in an ecclesiastical context.

2. Charity. How we say things is as important as what we say. America seeks to provide a model for a public discourse that is intelligent and charitable. In the next few months, America will announce a new set of policies for the public commentary on our various platforms.

3. Community. America will appoint a community editor who will moderate our public conversation, ensuring that it rises to the standards we set for thoughtfulness and charity. We will continue to provide a forum for a diverse range of faithful, Catholic voices.

Monday, June 3, 2013

Wieseltier on the Humanities

By Rick Garnett

Leon Wieseltier delivered the commencement address at Brandeis a few weeks ago.  Here's a bit, sent to me by a correspondent (The full address is available at The New Republic, here):

For decades now in America we have been witnessing a steady and sickening denigration of humanistic understanding and humanistic method. We live in a society inebriated by technology, and happily, even giddily governed by the values of utility, speed, efficiency, and convenience. The technological mentality that has become the American worldview instructs us to prefer practical questions to questions of meaning – to ask of things not if they are true or false, or good or evil, but how they work. Our reason has become an instrumental reason, and is no longer the reason of the philosophers, with its ancient magnitude of intellectual ambition, its belief that the proper subjects of human thought are the largest subjects, and that the mind, in one way or another, can penetrate to the very principles of natural life and human life. Philosophy itself has shrunk under the influence of our weakness for instrumentality – modern American philosophy was in fact one of the causes of that weakness -- and generally it, too, prefers to tinker and to tweak.

 

Sunday, June 2, 2013

Catholicism and "libertarianism" (again)

By Rick Garnett

Over at the dotCommonweal blog, political theorist Robert Geroux has a series of posts (go here and here to start reading) (a) arguing against the views of and some recent writings by Fr. Robert Sirico and (b) exploring and criticizing what he calls the "dreamworld of libertarianism."  The posts are worth reading, but they also invite, in my view -- as Catholic critiques of "libertarianism" (at least, the Catholic critiques that are directed against the economic libertarianism of some "conservatives") generally do -- a cautionary, but genuinely-intended--as-friendly amendment, namely:  While it is true that the Catholic account of the person, society, community, authority, flourishing, and politics is more rich than, and in many important respects incompatible with the premises of some forms of "libertarianism", it is not the case either that all (or even most) policies espoused by or associated with "libertarianism" are inconsistent with the Catholic account or are otherwise objectionable.

Too often (though not, I think, in Geroux's posts), it is thought to be a sufficient "Catholic" response to a "libertarian" or "neo-liberal" or "conservative" policy proposal having to do with economic or social-welfare matters to attach to that proposal a word like "Randian" or "libertarian" or "individualistic", as if the attaching settled the matter.  If Catholic thinkers are really going to -- as MOJ readers and others should want them to -- provide genuinely Catholic alternatives to the "libertarianism" of the left and right, or to versions of statism and collectivism that are also inconsistent with the Church's account of the person, etc., then they (all of them, of whatever stripe) need to acknowledge that some claims and arguments sometimes associated with "libertarianism" are sound and important.  For example, the "moral hazard problem" is real and persons do respond to incentives.  (Authentic) human freedom is a good thing, and constraints by government on that freedom need to be justified.  (They often are justified, but they need to be justified.)  "Society" and "the state" are different.  The rule of law, constitutional limits on public authority, and (reasonable) property rights are good -- they make communities better, and make it more likely that persons will flourish.  We are not merely lone, self-sufficient, solitary, unsituated, non-dependent rights bearers, but we're also not just bricks in the wall, cogs in the machine, etc.

Geroux writes:

[T]here’s nothing new or challenging about the awareness of the claims others make upon us, in the name of individual rights. As Simone Weil pointed out, every articulation of right that comes from another person impinges upon me. As adults, however, we acknowledge these sometimes burdensome obligations as bonds that tie us together and which constitute us collectively. We may differ on the particulars of family, church, and community, but we comprehend these things as part of what make us fully human.

Libertarianism represents a rejection of those bonds; it fetishizes my actions and accomplishments and imagines a world without mutual obligation. Its logic is reminiscent of the dreamworld of a child, or at the very best an adolescent; its narrative order sometimes reads like the script of an action film in which all conflicts are fantastically resolved by hypertrophically masculine heroes. Such stories are fine in their context, but as Freud suggested, the dreams of adults are different. They take place in strange places, reflect complicated nuances of meaning, and are peopled by characters in unpredictable situations. They are full of subtlety and sometimes tragic difficulty. They cannot be easily resolved. They resist facile analysis.

A "libertarianism" that is as Geroux describes is, certainly, to be rejected.  We are situated and embedded in webs of obligation, duty, and oughts that are not (only) the result of our choice that do not depend on our approval or consent.  But . . . there's a childishness (perhaps of a different sort) in the accounts that many of libertarianism's critics would offer (consider the lyrics of John Lennon's "Imagine"), and so maybe a task of Catholic thinkers is to challenge us to leave "dreamworlds" behind and to confront a complicated, fallen world with a combination of appropriate humility and confidence.

Thursday, May 30, 2013

"Australian judge overturns religious court ruling"

By Rick Garnett

An intriguing -- and, perhaps, unsettling -- story from Australia: 

An Australian judge rejected a ruling by a Jewish religious court ordering an Australian man to pay an Israeli businessman for the apparent sale of shares in a company. . . In 2010, a panel of three rabbinical judges ordered Amzalak to pay more than $300,000 for the sale of shares to Shlomo Thaler, an Israeli. Amzalak, however, did not make the payments, and the Jewish court issued a siruv that effectively excommunicated him from the community. . . .

Amzalak complained that the Jewish judges were biased. [The court] agreed, concluding that the “arbitration was not conducted impartially."

Religious Freedom: A Civil-Rights Issue

By Rick Garnett

Here is an interview with Peter Kirsanow, a member of the U.S. Commission on Civil Rights, on the importance of religious freedom and its centrality as a civil-rights issue.

Fr. Andrew Greeley, R.I.P.

By Rick Garnett

The Chicago Sun-Times reports that Fr. Andrew Greeley, "Chicago priest, best-selling author, noted sociologist and long-time Sun-Times columnist . . . died on early Thursday morning.  He was 85."  He wrote, among other things, some very important studies about Catholic schools, their successes, and their challenges.  R.I.P.
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