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.

Monday, March 29, 2010

"Scoundrel Time(s)"

By Rick Garnett

Here is George Weigel, addressing both the great moral evil that is the sexual abuse of children, and the disturbingly under-inclusive and accuracy-challenged reporting on that evil that is being provided these days by the New York Times and others:

The sexual and physical abuse of children and young people is a global plague; its manifestations run the gamut from fondling by teachers to rape by uncles to kidnapping-and-sex-trafficking. In the United States alone, there are reportedly some 39 million victims of childhood sexual abuse. Forty to sixty percent were abused by family members, including stepfathers and live-in boyfriends of a child’s mother—thus suggesting that abused children are the principal victims of the sexual revolution, the breakdown of marriage, and the hook-up culture. Hofstra University professor Charol Shakeshaft reports that 6-10 percent of public school students have been molested in recent years—some 290,000 between 1991 and 2000. According to other recent studies, 2 percent of sex abuse offenders were Catholic priests—a phenomenon that spiked between the mid-1960s and the mid-1980s but seems to have virtually disappeared (six credible cases of clerical sexual abuse in 2009 were reported in the U.S. bishops’ annual audit, in a Church of some 65,000,000 members).

Yet in a pattern exemplifying the dog’s behavior in Proverbs 26:11, the sexual abuse story in the global media is almost entirely a Catholic story, in which the Catholic Church is portrayed as the epicenter of the sexual abuse of the young, with hints of an ecclesiastical criminal conspiracy involving sexual predators whose predations continue today. That the vast majority of the abuse cases in the United States took place decades ago is of no consequence to this story line. For the narrative that has been constructed is often less about the protection of the young (for whom the Catholic Church is, by empirical measure, the safest environment for young people in America today) than it is about taking the Church down—and, eventually, out, both financially and as a credible voice in the public debate over public policy. For if the Church is a global criminal conspiracy of sexual abusers and their protectors, then the Catholic Church has no claim to a place at the table of public moral argument.

The Church itself is in some measure responsible for this. . . .

. . . While the Vatican has been far quicker in its recent response to irresponsible media reports and attacks, it could still do better. A documented chronology how the archdiocese of Munich-Freising handled the case of an abusing priest who had been brought to Munich for therapy while Ratzinger was archbishop would help buttress the flat denials, by both the Vatican and the archdiocese, that Ratzinger knowingly reassigned a known abuser to pastoral work—another charge on which the Times and others have been chewing. More and clearer explanations of how the canonical procedures put into place at CDF several years ago have accelerated, not impeded, the Church’s disciplining of abusive clergy would also be useful.

So, of course, would elementary fairness from the global media. That seems unlikely to come from those reporters and editors at the New York Times who have abandoned any pretence of maintaining journalistic standards. But it ought not be beyond the capacity of other media outlets to understand that much of the Times’ recent reporting on the Church has been gravely distorted, and to treat it accordingly.

Saturday, March 27, 2010

Mirror of Justice: Back to Basics

By Rick Garnett

My previous post, regarding the anniversary of Pope John Paul II's death, got me interested in digging even further back into the vault.  Here is Mark Sargent's inaugural "welcome" post, that went up on Feb. 3, 2004:

Welcome to Mirror of Justice, a group blog created by a group of Catholic law professors interested in discovering how our Catholic perspective can inform our understanding of the law. Indeed, we ask whether the great wealth of the Catholic intellectual and moral tradition offers a basis for creating a distinctive Catholic legal theory- one distinct from both secular and other religious legal theories. Can Catholic moral theology, Catholic Social Thought and the Catholic natural law tradition offer insights that are both critical and constructive, and which can contribute to the dialogue within both the legal academy and the broader polity? In particular, we ask whether the profoundly counter-cultural elements in Catholicism offer a basis for rethinking the nature of law in our society. The phrase "Mirror of Justice" is one of the traditional appellations of Our Lady, and thus a fitting inspiration for this effort.

A few things about this blog and us:

1. The members of this blog group represent a broad spectrum of Catholic opinion, ranging from the "conservative" to the "liberal", to the extent that those terms make sense in the Catholic context. Some are politically conservative or libertarian, others are on the left politically. Some are highly orthodox on religious matters, some are in a more questioning relationship with the Magisterium on some issues, and with a broad view of the legitimate range of dissent within the Church. Some of us are "Commonweal Catholics"; others read and publish in First Things or Crisis. We are likely to disagree with each other as often as we agree. For more info about us, see the bios linked in the sidebar.

2. We all believe that faith-based discourse is entirely legitimate in the academy and in the public square, and that religious values need not be bracketed in academic or public conversation. We may differ on how such values should be expressed or considered in those conversations or in public decisionmaking.

3. This blog will not focus primarily on the classic constitutional questions of Church and State, although some of our members are interested in those questions and may post on them from time to time. We are more interested in tackiling the larger jurisprudential questions and in discussing how Catholic thought and belief should influence the way we think about corporate law, products liability or capital punishment or any other problem in or area of the law.

4, We are resolutely ecumenical about this blog. We do not want to converse only among ourselves or with other Catholics. We are eager to hear from those of other faith traditions or with no religious beliefs at all. We will post responses (at our editorial discretion, of course.) See "Contact Us" in the sidebar.

5. While this blog will be highly focused on our main topic, we may occasionally blog on other legal/theoretical matters, or on non-legal developments in Catholicism (or on baseball, the other church to which I belong.)

6. We will be linking to relevant papers by the bloggers in the sidebar. Comments welcome!

And, here is my first substantive post, on "Law and Moral Anthropology":

One of our shared goals for this blog is to -- in Mark's words -- "discover[] how our Catholic perspective can inform our understanding of the law." One line of inquiry that, in my view, is particularly promising -- and one that I know several of my colleagues have written and thought about -- involves working through the implications for legal questions of a Catholic "moral anthropology." By "moral anthropology," I mean an account of what it is about the human person that does the work in moral arguments about what we ought or ought not to do and about how we ought or ought not to be treated; I mean, in Pope John Paul II's words, the “moral truth about the human person."

The Psalmist asked, "Lord, what is man . . . that thou makest account of him?” (Ps. 143:3). This is not only a prayer, but a starting point for jurisprudential reflection. All moral problems are anthropological problems, because moral arguments are built, for the most part, on anthropological presuppositions. That is, as Professor Elshtain has put it, our attempts at moral judgment tend to reflect our “foundational assumptions about what it means to be human." Jean Bethke Elshtain, The Dignity of the Human Person and the Idea of Human Rights: Four Inquiries, 14 JOURNAL OF LAW AND RELIGION 53, 53 (1999-2000). As my colleague John Coughlin has written, the "anthropological question" is both "perennial" and profound: "What does it mean to be a human being?” Rev. John J. Coughlin, Law and Theology: Reflections on What it Means to Be Human, 74 ST. JOHN’S LAW REVIEW 609, 609 (2000).

In one article of mine, "Christian Witness, Moral Anthropology, and the Death Penalty," I explore the implications for the death penalty of a Catholic anthropology, one that emphasizes our "creaturehood" more than, say, our "autonomy." And, my friend Steve Smith (University of San Diego) has an paper out that discusses what a "person as believer" anthropology might mean for our freedom-of-religion jurisprudence that fleshes out excellent article. I wonder if any of my colleagues have any thoughts on these matters?

Comments are open!

Pope John Paul II

By Rick Garnett

We are approaching the fifth anniversary of the death of Pope John Paul II (the late Holy Father died on April 2, 2005).  I was thinking about this, and so went back and read a bunch of our posts from that time, including this one of mine ("John Paul II and the Law:  A First Try") which I put up on April 3:

I'm sure that many of us are reflecting on the effect that the Holy Father had on our faith and lives, and thanking God for the gift of his ministry and example.  It also makes sense, here on MOJ, for us to consider what the Pope's work and thought might mean for law and legal theory.  A few thoughts:

First, many of the Pope's writings focus on the importance of culture as the arena in which human persons live, thrive, and search for truth.  His was not a reductionist Christianity -- one in which the choices and hopes of persons drop out of the analysis, and are replaced merely by one "dialectic" or another. Nor is Christianity merely a matter of a rightly ordered interior life.  We are precious and particular, bearing the "weight of glory," but also social, relational, political -- and cultural.  And, he recognized, law both shapes and is shaped by culture.

Second, the Pope returned again and again to the theme of freedom.  Certainly, for lawyers -- and particularly for lawyers living and working in our constitutional democracy -- questions about the extent to which law can and should liberate (and, perhaps, liberate-by-restraining?) are appropriately on the front burner.  It's fair to say that John Paul II proposed an understanding of freedom -- and of its connection with (T)ruth -- that contrasts instructively with the more libertarian, self-centered understanding that seems ascendant in our law (particularly our constitutional law) today.

Third, I imagine we will be working out for decades the implications of the Pope's proposal that the God-given dignity of the human person, and the norm of love, richly understood, should occupy center-stage in our conversations about morality -- rather than utilitarian calculations, historical movements, or supposed categorical imperatives.  This proposal seems particularly powerful when it comes to the matter of religious freedom.

Finally, there is the (perhaps, at first) surprising fact that, at the end of the 20th Century, it was a mystical Pope who "stepped up" and reminded a world that had been distracted, or perhaps chastened, by reason's failures, and had embraced a excessively modest, post-modern skepticism, of the dignity and proper ends (without overlooking the limits) of reason.

There's a lot more to say, of course.  I would, for what it's worth, encourage any MOJ readers who work with or advise law journals to consider commissioning essays, or even symposia, on John Paul II's jurisprudential legacy.

Comments are open (as they were not, five years ago).  By the way . . . it seems weird to be talking and thinking about five-year-old blog-posts.  In any event, since many of us have written about the matter, it might be nice other MOJ-ers shared (or perhaps, as I have done, just re-posted) some anniversary reflections on the CST work and legacy of John Paul II and its connections to the Catholic legal theory project.

John Allen on Benedict and Clerical-Abuse Scandal

By Rick Garnett

John Allen -- who occupies the regrettably lonely but richly deserved (not the lonely part) position as "journalist on things Catholic who seems to be respected by everyone, even those who seem to disagree about everythign else" -- has this piece, "Keeping the Record Straight on Benedict and the Crisis", in the National Catholic Reporter.  A bit:

. . . Despite complaints in some quarters that all this is about wounding the pope and/or the church, raising these questions is entirely legitimate. Anyone involved in church leadership at the most senior levels for as long as Benedict XVI inevitably bears some responsibility for the present mess. My newspaper, the National Catholic Reporter, today called editorially for full disclosure about the pope's record, and it now seems abundantly clear that only such transparency can resolve the hard questions facing Benedict.

Yet as always, the first casualty of any crisis is perspective. There are at least three aspects of Benedict's record on the sexual abuse crisis which are being misconstrued, or at least sloppily characterized, in today's discussion. Bringing clarity to these points is not a matter of excusing the pope, but rather of trying to understand accurately how we got where we are. . . .

An initial response to Michael's correspondent

By Rick Garnett

Michael P. quotes a correspondent who writes, with respect to E.J. Dionne's recent Washington Post piece:

"A question that should be put to every participant of the MOJ blog, to which no one should not respond if MOJ intends to have any credibility at all outside Catholic circles:  How does Catholic Social Theory respond to this?  I can't think of any more pressing socio-theological-legal issue confronting Catholics (including American Catholics) right now or in the future..."

I am assuming that Michael's correspondent is a new reader -- welcome! -- because my sense has been that, over the last six years, we have hardly neglected the questions and problems that clerical sexual abuse and its mishandling by Bishops, lawyers, and courts.  So, I'm not inclined to think that MOJ's credibility on this or any other matter should reasonably be seen as in jeaopardy.  That said, the issues that Dionne writes about are, of course, important, challenging, and (regrettably) timely.

First, Dionne asks, "[h]ow in the name of God can the Roman Catholic Church put the pedophilia scandal behind it?"  I would have preferred that Dionne -- a well regarded journalist and long-time observer of things Catholic -- had avoided using the term "pedophilia" which, as he knows, is both particularly inflammatory and misdescribes most (nearly all?) of the sexual-abuse and sexual-misconduct wrongs -- and to be sure, that these wrongs were not all "pedophilia" does not make them any less "wrongs".  Does this matter?  I think so.  We should, of course, demand that the Church be truthful, but we should take care that we not demand the Church confess what to what is not true.

Dionne also writes:

The church's problem is, above all, theological and religious. Its core difficulty is that rather than drawing on its Christian resources, the church has acted almost entirely on the basis of this world's imperatives and standards.

It has worried about lawsuits. It has worried about its image. It has worried about itself as an institution and about protecting its leaders from public scandal. In so doing, it has made millions of Catholics righteously furious and aggravated every one of its problems.

I am inclined to share the view that, in many instances, those Bishops who mishandled (badly) sexual-abuse cases (and, we should remember, that most did not) did so in part because of fears about scandal, about liability, and on the advise of lawyers.  At the same time, it is the reality (isn't it?) that, for the past decade, the problem has not been so much with dealing with, and preventing, new allegations of abuse, but with litigation.  (The number of alleged incidents of abuse since the early 1990s is, thank God, very small.)  I am not sure it is possible for Bishops -- even Bishops intent on faithful, charitable, and total adherence to the Gospel -- to put aside the reality that they are in litigation.  (My former colleage Patrick Schiltz's work and experience is helpful here.)  Bishops were right (weren't they?) to worry about efforts in some cases to bankrupt dioceses, to liquidiate schools, to supervise the training and selection of clergy, etc.  Does this worry excuse bad or dishonest actions?  Of course not.  But it certainly more than excuses -- it justifies, and demands -- appropriate legal defenses.  In saying this, I am not suggesting, in Dionne's words, that "defensiveness" is a Gospel value.  But it is not always "defensive" to, well, defend. 

Dionne writes, in closing, that:

The church needs to cast aside the lawyers, the PR specialists and its own worst instincts, which are human instincts. Benedict could go down as one of the greatest popes in history if he were willing to risk all in the name of institutional self-examination, painful but liberating public honesty, and true contrition.

Again, it does not seem helpful to me to call for the casting aside of lawyers, when one is being sued, aggresively and often, and where one has obligations not only to the Church's mission and resources, but to those who might be falsely accused.  Is it a good thing for the Church's response to the problems of clerical sex abuse and episcopal mishandling (or worse!) to be handled by lawyers and PR specialists?  No, of course not.  But, there is no getting around the need (in my view) for these types, given all the givens.

To his credit, Dionne recognizes that what he calls for would not be "easy", and that enemies of the church will use this scandal to discredit the institution no matter what the Vatican does. Many in the hierarchy thought they were doing the right thing, however wrong their decisions were. And the church is not alone in facing problems of this sort."  It is certainly not alone; indeed, the government, other religious institutions, and non-profit organizations of many stripes face even more serious problems of this sort.  But, those whom Dionne calls "enemies of the church" tend not to be interested in these problems.  Obviously, that the Church is being singled out does not make her wrongs any less wrong.  But, it seems to me that the realities that Dionne acknowledges in this passage complicate seriously his call for the Pope to "risk all". 

Another ministerial-exception decision

By Rick Garnett

Here's one, from the Ninth Circuit:

The Religion Clauses of the First Amendment provide that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const. amend. I. These clauses require a “ministerial exception” to employment statutes if the statute’s application would interfere with a religious institution’s employment decisions concerning its ministers. . . . Because the ministerial exception is constitutionally compelled, it applies as a matter of law across statutes, both state and federal, that would interfere with the church-minister relationship. . . .

"In Defense of the Catholic Clergy"

By Rick Garnett

This piece, by Elizabeth Lev, raised for me some very important points, to keep in mind as we follow the latest reporting on sexual abuse by clergy, and mishandling of these cases by the Church:

. . . After the National Assembly diminished the authority of Louis XVI in 1789, anti-monarchical literature dwindled, but fierce accusations against Catholic clergy for misdeeds past and present increased. Isolated cases of clerical immorality were magnified to make depravity appear endemic to the entire priesthood (ironically, in an age where sexual libertinism was running rampant). The French propagandists labored night and day, dredging the past for old scandals whether decades or even centuries distant.
In his Reflections on the Revolution in France, published in 1790, Burke, a Protestant, asked the French, "From the general style of late publications of all sorts, one would be led to believe that your clergy in France were a sort of monsters, a horrible composition of superstition, ignorance, sloth, fraud, avarice and tyranny. But is this true?"
 
What would Edmund Burke make of the headlines of the past few weeks, as stories of a clerical sex abuser in Germany a quarter century ago, made front page headlines and top TV stories in US news? What would he think of the insistent attempts to tie this sex abuser to the Roman pontiff himself through the most tenuous of links?
 
In 1790, Burke answered his own question with these words: "It is not with much credulity I listen to any when they speak evil of those whom they are going to plunder. I rather suspect that vices are feigned or exaggerated when profit is looked for in their punishment." . . .
 

"Stealing from Churches"

By Rick Garnett

A wonderful essay, by Roger Scruton (HT:Rod Dreher).  The essay, Dreher writes,

is a sketch of two deeply humane Catholic believers who made an enormous impression on the atheist Scruton: a Monsignor Alfred Gilbey, an aristocratic Englishman and popular old-school priest, and Basia, a poor Polish philosophy student who had suffered. What you miss in the excerpt is the opening, in which Scruton writes poetically about being drawn to old and nearly abandoned French country churches as a young man. He opens by relating a sense of being a vandal in visiting churches as an unbeliever, as many tourists are:

Of course, they don't steal the works of art, nor do they carry away the bones of the local martyr. Theri thieving is of the spiritual kind. They take the fruit of pious giving, and empty it of religious sense. This theft of other people's holiness creates more damage than physical violence. For it compels a community to see itself from outside, as an object of anthropological curiosity. Those holy icons that returned the believer's gaze from a more heavenly region are suddenly demoted to the level of human inventions. Those once silent, God-filled spaces now sound with sacrilegious chatter, and what had been a place or recuperation, the interface between a community and its God, is translated to the realm of aesthetic values, so as to become unique, irreplaceable, and functionless. The tool that guaranteed a community's lastingness, becomes a useless symbol of the everlasting.

Scruton then relates his role in an actual minor theft from a country church (of crystal cruets), and how it haunted him for years afterward. The real theft, though, was sacramental -- his failed marriage to a Catholic woman, which broke him spiritually. He writes of his lesson as a spiritual thief: "Stay away from holiness, was the lesson. Stay away until you are sure it possesses you."

That's more or less where the essay picks up at the link above. The profiles Scruton writes of those two very different Catholic believers illustrate what it is like to live one's life devoted to the Good, and the Good in the person of Jesus Christ. . . .

Thursday, March 18, 2010

Fr. Hesburgh laments Senate's decision to kill school choice in D.C.

By Rick Garnett

Here is Fr. Ted's op-ed, published after the Senate -- on an almost party-line vote -- rejected Sen. Lieberman's efforts to save D.C.'s Opportunity Scholarship Program.  This rejection is repulsive, and represents the worst kind of pandering to unworthy interests, at the expense of poor children.  (But hey, that's just me.  And Fr. Ted.)  After celebrating the election of Barack Obama, our first African-American president (a president who, of course, came to Notre Dame to pay tribute to Fr. Ted and enjoy some of the glow of his legacy), and after noting the negative consequences of the Senate's decision for Catholic schools that serve low-income (predominantly non-Catholic) kids in D.C., Fr. Ted continues:

I have devoted my life to equal opportunity for all Americans, regardless of skin color. I don't pretend that this one program is the answer to all the injustices in our education system. But it is hard to see why a program that has proved successful shouldn't have the support of our lawmakers. The end of Opportunity Scholarships represents more than the demise of a relatively small federal program. It will help write the end of more than a half-century of quality education at Catholic schools serving some of the most at-risk African-American children in the District.

I cannot believe that a Democratic administration will let this injustice stand.

Unfortunately, this Democratic administration (like any other, given the political givens) will almost certainly let this injustice stand.  But, Fr. Ted has, I suspect, a lot more pull than I do in some pretty powerful quarters, so I'll hope his loyalty and confidence does not turn out to be unwarranted.

Tuesday, March 16, 2010

Some more health-insurance-and-abortion thoughts in response to Bob

By Rick Garnett

Thanks, as always, to Bob for the interesting conversation.  A few quick (but, I hope, not too quick!) thoughts in response:

First, Bob asks:

Why would we ever think that assisting the poor in the purchase of what the non-poor already purchase -- comprehensive health insurance policies -- would entrench the constitutionally permissive abortion regime?  If we're actually concerned with the entrenching effects that private-market-offered health insurance policies, most all of which cover abortion, have on the legal regime concerning abortion, why don't we call for regulation of those insurance companies, all of which currently enjoy statutory exemption from federal regulation, requiring them to offer policies that do not cover abortions in addition to what ever policies they offer that do cover abortions?

The second sentence raises (to me) interesting questions about the relevance of the fact that, under the proposed health-insurance proposals, people would be required to buy insurance.  But Bob's main question, it seems to me, is in the first sentence:  My thoughts (which might be mistaken, of course) are that we might very well think that increasing the extent to which the government helps to create expectations regarding the availability of (indirectly subsidized) abortions might well help to entrench the current legal regime.  Additionally, I worry that the political experience of all this -- that is, the experience of seeing that the prospect of increased regulations of (or, reduced indirect subsidization of) abortion is so unacceptable to the Democratic leadership that many of them seem willing to risk  losing the opportunity to enact the President's signature piece of legislation -- could, for many, result in a hardening of their attachment to the idea of constitutionally protected abortion rights.  Is this a "speculative" concern?  Absolutely.  I'm not sure.  But, I worry about it.  (Some, of course -- Michael Sean Winters, over at America, for example -- think it will have the opposite effect.  I hope he is right!).

With respect to his second point -- about the best terminology to use -- I guess it is not clear to me that "subsidy" necessary says anything about intent, but I don't have any objections to the terms he usees . . . so long as we do not forget that for many (most?) of the Democrats in Congress, it is a desired side-effect of this legislation that access will be increased to abortion-services.  I understand, of course, that Bob and I are in the same place, and regret equally any such side-effects of health-insurance regulation.

Finally, I certainly hope that neither Bob nor anyone else "heard" me to be saying that the intent / double-effect questions are not interesting or important.  Yes, absolutely, a conscientious legislator would need to engage these questions.  My point is just that I am happy to assume, for the sake of discussion, that a pro-life, conscientious legislator could in good faith come to the conclusion that he or she is not culpable for any bad abortion-related side-effects of what he or she thinks is, on balance, a good piece of policy.  That such a legislator could avoid culpability, though, would not mean -- it seems to me -- that there are not serious pro-life concerns about the enactment of the policy.

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