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.

Tuesday, May 14, 2013

"The Freedom of the Church Without Romance"

Paul Horwitz has posted a must-read paper called "The Freedom of the Church Without Romance."  It's an important piece, by an important scholar, on an important subject.  In it, Paul engages -- carefully, critically, fairly, challengingly -- with some of my own efforts to think through the "institutional" dimension of religious freedom.  Here's Paul's abstract:

This Article is part of a symposium issue titled "Freedom of the Church in the Modern Era." Freedom of the church, roughly, connotes the independent nature or sovereignty of the church. The most dramatic moment in its development was the eleventh century Investiture Controversy, with its confrontation between Pope Gregory VII and Emperor Henry IV at Canossa, but it has a long prior and subsequent history. Recently, with the renewed scholarly interest in the institutional rights of churches and religious organizations and the Supreme Court's decision affirming the "ministerial exception" doctrine in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the idea of "freedom of the church" has taken on new champions--and critics. 

This Article, from an author who has written supportively about freedom of the church and/or religious institutionalism in prior work, takes a deliberately unromantic look at freedom of the church. It evaluates it through two useful disciplinary lenses: history, and the economics of religion. Both historical and economic analysis of the concept of "freedom of the church" suggest the following conclusions: (1) The concept should be treated carefully and with a full awareness of its mixed history, without undue romanticism on the part of its champions, or a confident conclusion on the part of its critics that it is no longer necessary. (2) Whatever the concept of "freedom of the church" means today, the present version is decidedly diminished and chastened, a shadow of the medieval version. Supporters of freedom of the church should welcome that fact. Freedom of the church persists, and may have continuing value, precisely because it has become so domesticated. (3) There are solid historical and economic grounds for some form of freedom of the church or religious institutional autonomy. In particular, religion's status as a credence good, whose value and reliability is certified by religious agents such as ministers, strongly suggests that state interference with religious employment relations can be dangerous to a church's well-being and long-term survival. (4) The history and economics of religion also teach us something about the optimal conditions for freedom of the church--the conditions under which it is likely to do the most good and the least harm. In particular, they suggest that champions of freedom of the church ought to welcome religious pluralism and a strong non-establishment regime. 

The Article closes with some speculation about why there has been a recent revival of interest in freedom of the church, including the possibility that its resurgence, even if it is fully justified, also involves an element of rent-seeking by religious institutions. 

There are two broader underlying suggestions as well. First, there are good reasons to support some version of freedom of the church, but it deserves a more critical and nuanced examination by friends and adversaries alike. Second, legal scholars writing on church-state issues have paid far too little attention to the literature on the economics of religion.

My quick-reaction to the Gosnell verdict

Here's the instapunditry I did for National Review Online yesterday:

It is a good thing that the Philadelphia jury convicted Kermit Gosnell of
murder, because it is in fact clear that he committed murder. For the jury to
have done otherwise, given the graphic, detailed, and not-meaningfully-contested evidence, would have been a gross and depressing injustice. It would have delivered a huge blow to the rule of law in the City of Brotherly Love if the
members of the jury had allowed themselves to be distracted or confused by
Gosnell’s lawyers’ overheated attempts at obfuscation, by baseless charges of
“racism” and “elitism,” or by a distortionary dedication to an extreme version
of the pro-abortion cause.

It will be tempting to “move on.” But the temptation should be
resisted. Gosnell did horrible things to women and still-living babies, and
laughed about it, and it would be comforting to many of us if he were a Hannibal
Lecter–type aberration. And, of course, in many ways, he is. Yet his ability to
reduce unborn and “unwanted” children to objects, whose pain and death were
material for jokes, differs more in degree than in kind from the dignity-denying
premises underlying our abortion laws generally. We should take more time to
think, and worry about, this fact.

Wednesday, May 8, 2013

"Political Theology for a Plural Age"

This collection, edited by Michael Jon Kessler, looks really interesting.  My friend, colleague, and neighbor Patrick Deneen has an essay in it called "The Great Combination: Modern Political Thought and the Collapse of the Two Cities."   Here's the blurb:

New challenges that emerged in the postwar era have given rise to ongoing debate about the place of religion in public life, in the United States and in other established democracies, and this debate has dramatically reshaped the way scholars, policymakers, and religious leaders think about political theology.
Political Theology for a Plural Age examines historic and contemporary
understandings of political engagement in Christianity, Judaism, and Islam,
engaging political theologies not merely as a set of theoretical concepts but as
religious beliefs and principles that motivate specific political action. The
essays in this volume, written by leading thinkers and practitioners within each
tradition and their secular counterparts, examine a number of core issues at the
intersection of religion and politics. They contest the definition of political
theology, establish a common discourse across the three Abrahamic traditions,
and closely examine how globalization, secularization, and pluralism affect the
construction and plausibility of political theologies. Finally, they offer
insight into how political theologies might adapt to the shared global
challenges of the twenty-first century.

Tuesday, May 7, 2013

"I am not this body."

The other day, the New York Times featured a really interesting piece -- one that is also strikingly written -- by Brian Jay Stanley, called "I am Not This Body."  An early paragraph goes like this:

I do not identify with my body. Ihave a body but I am a mind. My body and I have an intimate but awkward relationship, like foreign roommates who share a bedroom but not a language. As the thinker of the pair, I contemplate my body with curiosity, as a scientist might observe a primitive species. My mind is a solitary wanderer in this universe of bodies.

I'm not an expert, and these are really heavy questions, but I think the Catholic proposal is that we think about this differently.  It seems to me that it is essential -- "literally" essential -- that we human persons are embodied.  (We are, as Alasdair MacIntyre puts it, "dependent" and "rational" animals -- at least part of this "dependence" stems precisely from the fact that we are embodied.)

To be embodied is not to be just a body, of course -- but it is probably just as important to reject any kind of "ghost in the machine" dualism, which imagines the "real" person as a soul or spirit who simply lives in or employs as an object a body.  I would not be me without (sigh) this body (though I wouldn't mind a more fit version of it). 

At the end of the piece, the author seems to have moved from the insistence, that "I have a body, but I am a mind," to what struck me as a resigned reductionism, to the naturalistic (I think) error of claiming that particles and force are all there really is: 

I recall the sense of eeriness I felt several years ago when learning computer science, the eeriness of discovering the lifeless corridors of binary digits and microprocessors beneath the monitor’s meaningful display. The facade of humanized banners, buttons and icons on our screens masks an unstaffed control center of electrical switches, clicking on and off, their changing patterns of charges translating miraculously but mindlessly into the streaming wonders of words and colors we perceive.

So, too, pry behind the rich graphics flashing across the screen of being—the self-organizing of galaxies, the coordination of ecosystems, and the complexity of biological life—and you arrive at the imbecilic machinery of it all, electrons flowing through the circuit boards of the stars, motors whirring on the hard drives of our bodies. Beneath the intelligible there is only the unintelligent, a blank stare behind beautiful eyes, muteness behind the music.

I'm confident that there's more behind the music but . . . this is worth a read.

UPDATE:  I was informed by a friend and MOJ reader that the theme for this year's Fall Conference, sponsored by the Notre Dame Center for Ethics and Culture, is "Fearfully and Wonderfully Made:  The Body and Human Identity."  The Call for Papers, and more on the conference, is here.  And, the site features this really nice quote, by Gil Meilaender (who has written a lot on these matters):

 [W]e know a person only in his or her embodied presence. In and through that body the person is a living whole. For certain purposes, we may try to “reduce” the embodied person simply to a collection of parts, thinking of the person (from below) simply as the sum total of these parts. But we do not know, interact with, or love others understood in that way; on the contrary, we know them (from above) as a unity that is more than just the sum of their parts.- Gilbert Meilaender, “The Gifts of the Body”

Monday, May 6, 2013

Reno and Miller on capitalism and conservatism

The exchange at First Things between Rusty Reno and Robert Miller is well worth reading.   (Here's Rusty's opener, here's Robert's response, and here's Rusty's reply.)  Taken together, I think they shed a lot more light than do the typical "Randian!" and "Socialist!" accusations that fly around conversations about economic policy, including conversations among Catholics who embrace the Church's moral anthropology and social teachings.  My own sense is that Reno is right to remind us that the mis-use of "economic freedom" can lead to bad results.  But, that's true of freedom generally, and it's not an argument against economic freedom so much as a fact about the world, this side of Heaven, that should be taken into account when designing institutions and policies that, in appropriate instances, constrain that freedom.  

Now, Reno says that "conservatives" often don't see this -- that is, they don't see that economic freedom "creates problems."  That's not my experience, for the most part.  (More common, in my experience, are "liberals" who don't appreciate the real costs of misplaced regulations.)  [Update:  It was pointed out by a friend and correspondent that this kind of "tu quoque" is both distracting and a bad habit of mine.  It is both of these things.  To be clear, though, I didn't mean to suggest that the former mistake is somehow excused by the latter.]  But, in any event, it is clear that various problems are inevitable by-products of economic freedom and so a challenge for a decent political community is to try to solve those problems.  

Miller's essay, I think, does a lot of good things, but what I most appreciate is what I would have thought is his pretty modest point that (paraphrasing) "to attack those who oppose all regulation and believe in unregulated 'laissez faire' capitalism is to attack a straw man.  Such attacks should not -- especially in the name of the Church's social teaching -- be made and, instead, we should focus on pushing 'conservatives' to embrace those regulations and policies that enhance the opportunity for genuine flourishing, and respond to the real costs of free markets, and on pushing 'liberals' to realize that government regulations do not justify themselves and that, in some cases, they can do more harm than good."  I think this is actually where most people are -- few are "Randians" (even if they are attracted to some libertarian themes and ideas) and few (in America, anyway) are real collectivists (even if they are attracted to some redistributionist or communitarian themes and ideas).   

Friday, May 3, 2013

Religious-freedom protections and marriage legislation in Delaware

A number of law professors (including Tom Berg and I) submitted the other day this letter (Download Delaware letter) to legislators in Delaware, urging them "to ensure that any bill legalizing same sex marriage does not infringe the religious liberty of organizations and individuals who have a traditional view of marriage." This letter is similar to the ones -- which have been posted here at MOJ before -- that the group has submitted in several other states.  The letter is basically consistent with the arguments and proposals contained in this recent article, "The Calculus of Accommodation," by Prof. Robin Fretwell Wilson, which I think is very well done.

Thursday, May 2, 2013

"A Priest Walks into a Bar . . ."

The current issue of Imbibe:  Liquid Culture has this profile (Download Fr. Bill) of my friend and Notre Dame colleague (and Columbia Law School grad) Fr. Bill Dailey -- the "honorary chaplain of the D.C. Craft Bartenders Guild" -- which includes his reflections on the very Catholic (and boozy) ideas of fellowship, ritual, and hospitality.  Mix up an Old Fashioned, and take a look.

On proselytism, evangelization, and the First Amendment

One of the issues raised in the various posts by Bob Hockett, Michael Scaperlanda, Patrick Brennan, and MOJ-friend Paul Horwitz is the challenge of defining "proselytism."  The word (like "discrimination", perhaps) has acquired a connotation of "persuasion, advocacy, or communication of an aggressive, underhanded, intolerant, insulting, or disrespectful kind."  Of course, it need not be involve any of those adjectives.  A few years ago -- as part of a very enjoyable lecture series organized by Patrick -- I did a paper called "Changing Minds:  Proselytism, Religious Freedom, and the First Amendment," in which I tried to underscore the fact that "proselytization," correctly understood, should not and need not involve any unworthy tactics or dignity-denying premises, but can and should be understood as an invitation -- and invitation to "come over," and to change not only one's mind, but one's view and way of life.  Here's a bit from the abstract:

Running through and shaping our First Amendment doctrines, precedents, and
values is a solicitude for changing minds - our own, as well as others'. Put
differently, the Amendment is understood as protecting and celebrating not just
expression but persuasion - or, if you like, proselytism. There are, therefore,
reasons grounded in our Constitution and traditions for regarding proselytism
and its legal protection not as threats to the common good and the freedom of
conscience, but instead as integral to the flourishing and good exercise of that
freedom. This same solicitude for persuasion and freedom pervades the writing of Pope John Paul II, who regularly insisted that the Church's evangelical mission
does not restrict freedom but rather promotes it. The Church proposes - thereby
inviting the exercise of human freedom - she imposes nothing. The claim here,
then, is that proposing, persuading, proselytizing, and evangelizing are at the
heart of, and need not undermine, not only the freedoms protected by the
Constitution, but also those that are inherent in our dignity as human persons.

With respect to the recent and ongoing argument here at MOJ about "Mikey" Weinstein and the DoD, it seems to me that -- putting aside what I regard as the facts that Weinstein is a hateful bigot who should no more be a part of even merely symbolic consultation with our government than should Fred Phelps and that it is entirely appropriate, on this site or any other, to express concern about such consultation -- it seems to me really important that any regulations and policies designed to (quite appropriately) protect our men and women in the service from abuses of superiors' authority (whether those abuses involve unwanted and aggressive religious messages, or take any other form) not reflect a premise or presumption that the content of traditional religious teachings and practices is substantively objectionable and therefore not-to-be-discussed-or-advocated in the armed services and also not reflect a premise or presumption that evangelism itself -- the invitation to "come over" -- (as opposed to abusive instances of it) is objectionable, even among members of the service.

Consider the Source: Paul Horwitz on Weinstein and Proselytization in the Military

Before any of our readers begin updating their passports for fear they are now, in virtue of their Catholicism, inhabiting a latterday Warsaw Ghetto under attack by the US military, I encourage them to read Paul Horwitz's admirably patient, painstaking sorting of fact and mere spin in his comments to an earlier post here.

I shall quote Paul's first such comment in full just below, notwithstanding my continuing belief that it is a mistake to take 'Mikey,' or the military's hearing him out along with multiple others who have axes to grind, seriously.  In the meanwhile, I trust it will not be controversial to point out that Breitbart and Fox are no more 'news' sources than are MSNBC or the Jon Stewart show.  Nor, I hope, will it be controversial to point out that some forms of proselytizing within a pluralist and professional state institution such as the military must be would be both profoundly disrespectful of non-Christian fellow citizens and undermining of necessary unit cohesian.  All rides on what is to count as impermissible 'proselytizing,' and neither rightwing nor leftwing 'infotainment' outlets are plausible prognosticators where this question is concerned.

Here is Paul:    

I appreciate your offering a response to Prof. Brennan and, as important, opening comments. I wanted to offer a response to him on his post, but let me offer it here. Although I agree with you that Breitbart is a poor primary source for news reporting, and indeed most of the story Brennan links to consists of irrelevant and unsourced matter, I think it only fair to try to treat the central facts reported in that story in and of themselves, investigating whether and to what extent they are accurate. After all, the language that Brennan quotes is indeed disturbing, and should be so for people of a broad array of religious beliefs or non-beliefs.

It is accurate that Weinstein is the head of a group that combats religious proselytization in the Armed Forces, although any sophisticated American knows that there are countless advocacy groups and many of them are far more vocal than powerful, often consisting of just a couple of staffers and a good deal of fundraising. It is also true that Weinstein wrote a couple of columns for the Huffington Post that are full of highly objectionable language. I think "rhetorically adolescent" is too kind. His writing is alarmist, hostile, rude beyond its most legitimate targets, hyperventilating, and self-aggrandizing. This is also surprisingly and unfortunately true of Brennan's own writing in the past several posts, but that hardly excuses Weinstein's ridiculous prose. It may make Brennan feel slightly better that on Weinstein's group's blog, some supporters of the group themselves criticized Weinstein's language. But I wouldn't blame him if he didn't feel much better. It is true that he uses the term treason and absolutely shouldn't have, although unfortunately many people overuse that word. In short, I found Weinstein unbalanced and his writing offensive. For that matter, I thought Quinn's column was a pretty poor piece of writing, close to incoherent.

It is also true, as any reader on the military knows, that proselytism has been a serious issue for sectors of the military, especially the Air Force and its academy. This is not what readers might think of as common peer-to-peer proselytization, in which the subject is free to accept or reject the proselytization. It is proselytization from on high, often from the senior ranks to cadets, often of an extreme nature, often linked to broader and disturbing sects of Christianity, and often accompanied by peer and official harassment. Even those who believe that proselytization is an essential part of both religious freedom and free speech ought to research the particular details of the kinds of conduct that exercises Weinstein, some of which is genuinely problematic. What Prof. Brennan, whose rhetorical style in these posts exaggerates what he finds worst and minimizes what he most favors, lightly calls "sharing the Gospel" is often far from what we might consider "sharing." Mandatory prayer for cadets, for instance, is not "sharing the Gospel." None of this excuses what I find Weinstein's offensive comments, but it does help provide some context, of which Brennan provides little or none. Let me add that, to its credit, the Air Force has spent a good deal of time over the past decade trying to address these questions in a way that avoids harassment or abuse of power by those in officer positions while making clear that cadets and officers must be able to engage in religious expression. In putting "religious toleration" in scare quotes, Brennan does a disservice to the actual efforts to ensure genuine religious toleration and avoid religious intolerance in the Air Force and elsewhere in the military.

Finally and centrally, there is the language by Prof. Brennan suggesting that Weinstein is an "official consultant to the Pentagon" and has been "retained by the Pentagon" to offer advice on forming policy. Perhaps Brennan has better sources than I do. The Breitbart story makes such assertions, but it links to the Quinn story, which does not. Weinstein's group's own website does not offer any such announcement, and believe me, it is not shy about trumpeting anything that might increase its visibility or assist in fundraising. As far as I can tell from Quinn's badly written story, and I am open to correction, Weinstein was one of several people invited to a listening meeting at a Pentagon meeting. With all due respect to Prof. Brennan, anyone who is not "naive, willful, or stupid" knows that such meetings are a dime a dozen, don't constitute an endorsement of the views of the attendees, and can mean as little as that a government office decided to mollify a vocal interest group with a meeting.

I think Brennan, without falling for all of the tripe with which the Breitbart story was filled, could easily and fairly have questioned whether Weinstein should have been invited to any such meeting. I question it myself, having read Weinstein's offensive columns. It is true that every White House and every government office regularly has people visit it whose views it does not endorse and whom many would find objectionable; this is a staple of alarmist reporting in every administration, Democratic and Republican. My own view is that such stories are rarely worth the pseudo-panics they involve, and that the fact that a Dominionist Christian or militant atheist made it into the door of a government office is rarely newsworthy in and of itself. But I'm sure everyone would draw a line somewhere, even those who believe that hearing from interest groups and constituents is a standard part of government procedure; I would be less than delighted if a neo-Nazi were invited to be part of even a meaningless meeting at the Pentagon, even if I didn't then jump to the conclusion that the government must be a fan of neo-Nazis.

So I think Brennan's concern that Weinstein was invited to such a meeting, no matter how insignificant or pro forma that meeting was, is reasonable, and I share it. Again, however, absent further details, that does not make Weinstein some kind of "official consultant to the Pentagon" in any meaningful sense in which anyone other than a lawyer would use those words. Condemnation of Weinstein's language seems right on target to me, even if there are genuine issues with respect to genuine religious toleration in the Air Force or the broader military. Concern that he was included in a meeting at all seems reasonable to me, even if knowledgeable people are aware that such meetings are common, include all kinds of people, and don't constitute an endorsement of the views of the motley crew that attends them. Relying heavily on such a poor source as the Breitbart story--and I am evaluating the story on its own merits, not on the basis of the larger Breitbart operation--seems unwise to me. And the general tone of Brennan's post, and his apparent contempt for anyone who views the matter in anything less than the alarmist fashion that he does, just seems hysterical--not wholly ungrounded, but hysterical.

[NB: In a subsequent comment, Paul apologizes for use of the word 'hysterical.'  He is more courtly than I.]

UPDATE:  The original title of this post has been changed.

Wednesday, May 1, 2013

Happy Feast of St. Joseph the Worker

I live in St. Joseph Country, run along the St. Joseph River, walk around St. Joseph Lake, worship at St. Joseph Parish, send my kids to St. Joseph School, and have a son named John Joseph.  I'm particularly happy, then, to re-post the nice post that Susan Stabile did, last year, marking today's feast:

This is a post I wrote on this day a couple of years ago in honor of today's feast day:

Today the Catholic Church celebrates the memorial of St. Joseph the Worker, one of two days in the church calendar on which we honor St. Joseph.  The memorial was instituted by Pope Pius XII, some say in response to Communist-sponsored May day celebrations for workers.  It is a day dedicated to the dignity of labor and to honoring workers.

Work is central to who we are as human persons.  As our friend Randy Lee once put it, "man does not work because he does not have the wealth stored up to be constantly at rest; man works because his dignity is in creating."  <em>Gaudium et spes </em>speaks of work as the means by which humans develop themselves and in <em>Centesimus Annus</em>, Pope John Paul II observed that humans express and fulfill themselves by working.

This view of work stems from our creation in the image of God; created in the image of God, human are called to co-create the world with God.  We participate in the act of creation, we share in God's creative activity, through our work. 

On this day on which we remember St. Joseph the Worker, we pray in a special way for all workers and we pray that we may develop and use the gifts God has given us to do the work to which He has called us.