You can watch/listen to Prof. John Inazu and Eboo Patel discussing "Pluralism in a Polarized Age: Navigating Our Deepest Differences Together", at the Lumen Christi Institute, here.
Tuesday, February 19, 2019
"Pluralism in a Polarized Age"
Thursday, February 14, 2019
Chapman, "Money for Missionaries"
Nathan Chapman (Georgia) has posted a fascinating new paper at SSRN. It's called "Money for Missionaries: Rethinking Establishment Clause History." (He workshopped this paper a while back, at Notre Dame, and I learned a lot.) Here's the abstract:
In Everson v. Board of Education (1947), the Supreme Court stated two principles that continue to animate Establishment Clause doctrine. The first is that courts should look to founding-era history—especially the history of "religious assessments," or taxes used to fund churches—to interpret the Establishment Clause. The second is that, based on this history, the government may provide limited secular goods to religious schools, but the Establishment Clause prohibits the government from directly funding religious education.
What Everson ignored, and what subsequent legal scholarship has likewise overlooked, is that the founding-era government did directly fund religious education: from the Revolution to Reconstruction, the federal government partnered with Christian missionaries to "civilize" American Indians. Initially ad hoc, this practice was formalized with the Civilization Funds Act of 1819, which authorized the government to distribute $10,000 per year to "persons of good moral character" to educate and “civilize” the tribes. For over fifty years, the government funded Christian missionaries who incorporated religious instruction and worship into their curricula. Curiously, no one ever raised a constitutional objection.
This Article is the first to provide a thorough analysis of the government-missionary partnerships and to explore why no one objected to their constitutionality. The evidence strongly suggests eighteenth and nineteenth-century Americans supported them because of a shared view of social progress that merged Christianization, education, and civilization. They simply could not have imagined separating Christianity and education. This evidence reshapes the conventional narrative of the historical development of non-establishment norms in the United States, especially the centrality of the Jeffersonian “taxpayer conscience” objection to religious assessments.
This history also has important implications for Establishment Clause doctrine. The challenge is ascertaining a constitutional principle from a practice that itself went unquestioned. The history does, however, suggest that the government may directly fund general education, even when that education entails incidental voluntary religious instruction. This principle complements the theoretical norm of “substantive neutrality” and supports the Supreme Court’s current doctrinal trajectory of easing restrictions on government funding of religious education.
Wednesday, February 13, 2019
Lumen Christi Summer Seminars
Many MOJ readers will likely be interested in the various Summer Seminars run by the Lumen Christi Institute. Check them out -- great line-ups of topics and speakers/presenters, and some cool destinations, too: "Business and Catholic Social Thought", "Economics and Catholic Social Thought", "The Thought of John Henry Newman", "The Thought of Rene Girard", "Augustine on God, Self, and Society", "Catholic Social Thought: A Critical Investigation".
Friday, February 8, 2019
Alabama execution without requested imam
Story here. It's not as obvious to me as it seems to be to some in the Twitter-verse that the Court's 5-4 split on the stay shows hypocrisy regarding religious freedom (because there are questions about procedure, timing, etc., and a general policy regulating who can be present in the execution chamber is reasonable) but, given what I know at the moment, it seems to me that the Court should have left the stay in place (and that Alabama and other death-penalty states should anticipate the need for chaplains of multiple faiths).
Tuesday, February 5, 2019
15 Years at Mirror of Justice
This week marks the 15th anniversary of the Mirror of Justice blog. Tempus fugit, and all that. I dug up my first substantive post, and I suppose I should not have been surprised that it was, like a lot of the things I've put up on this blog, about Christian "moral anthropology" and its implications for law and the legal enterprise:
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).
We've covered a lot of ground these past 15 years - and not just, although it sometimes might have seemed like it, four presidential elections. We've had about 15,300 posts and (I estimate) about 5 million page-views. Bloggers have come and gone -- although more than a few of us have been on board the whole time -- and engagement and activity have waxed and waned with current events, the life of the Church, and the academic calendar. We've talked about current events and politics, sure, but at our best the blog was not another "blog about current events and politics (by people who happen to be Catholic law professors)." We've argued some, and thrown some elbows, but I like to hope that, all things considered, we've shed some light and not just "thrown some shade."
I continue to think it is the case -- it just has to be -- that the Christian proposal and story have something to say about law -- again, about the purpose and nature of law and the legal enterprise, not just the substantive content of particular enactments. There needs to be, I think -- and we should want there to be -- a meaningfully, interestingly "Catholic legal theory." Such a theory is -- or, at least, should be -- of interest and value to Catholics and non-Catholics alike. That we are Catholic should make a difference for how we teach, practice, study, understand, and craft law.
The flow (as well as the speed and, perhaps, the snarkiness) of the public conversation has changed over the last 15 years. Twitter wasn't around. Facebook, believe it or not, was launched on the same day as Mirror of Justice. (Arguably, we've done better at our mission than they have at theirs!) Legal practice, legal scholarship, and legal education have changed significantly, reflecting the ongoing Digitization of Everything. A lot that used to be said, in paragraphs, on blogs is now said, with a few words (or emojis or gifs) on Twitter.
It's not clear to me what the future holds for this blog-venture, or for blogging generally. I'd welcome others' thoughts! In the meantime, I want to say "thank you" to the many thousands of people who have checked in with MOJ over the years and to my co-blogging colleagues and friends. Let's all pray for the Church, for our vocation, and for each other.
Monday, January 28, 2019
Happy Feast of St. Thomas Aquinas
Here's a short video from Fr./Bishop Robert Barron on the Angelic Doctor, and if you haven't read Chesterton's Dumb Ox or Joseph Pieper's Guide, why not fix that?
Tuesday, January 22, 2019
The new attacks on school choice (in Indiana and, soon, elsewhere)
As I suggested a few days ago -- it seems like forever, since it was before this weekend's Twitter-mob-unpleasantness regarding Catholic high school students from Kentucky at the March for Life -- the attacks on the school (and on schools like it) where Mrs. Pence teaches should be seen as part of a well-funded and coordinated effort to (a) pre-emptively back-foot judicial nominees and (b) weaken school-choice programs. A news story here in Indiana provides some confirmation for point (b). Some lawmakers (who oppose Indiana's pathbreaking school-choice program) have seized on a recent discrimination lawsuit in which a teacher at a Catholic high school was fired after it became known that she had legally married her longtime partner of the same sex. As the story notes:
The school and Archdiocese have said in public statements that employees must support the teachings of the Catholic Church, including marriage being “between a man and a woman,” and that the expectation is clearly defined in employee contracts.
Some lawmakers have announced their plan to exclude from participation in the school choice program schools that "discriminate" -- whether or not this discrimination takes the form of enforcing contractual provisions that reflect the schools' understanding of their religious mission. Such exclusion would (as it is intended to do) dramatically reduce the number of high-performing schools that participate in the choice program.
This ("Confusion About Discrimination"), from 7 (!) years ago, appears to continue to be relevant. Stay tuned.
Thursday, January 17, 2019
Regarding the controversy surrounding Mrs. Pence's new Christian School employer
The news cycle being what it is, there is a story going around -- and being much remarked upon by Blue-Check-Twitter types -- the theme of which is surprise/shock/horror that the Christian school at which Mrs. Karen Pence has a policy of requiring staff and students to act in accord with a variety of familiar, traditional Christian norms regarding sexuality. (The story to which I linked, like most stories I've seen, says -- incorrectly -- that the school "bans" gay students and employees.)
Two things (at least) are worth noting about this: First, this story (and others like it) are tactical moves in an effort to "condition the environment" for situations when nominees to federal courts are revealed to have been involved with/sent their children to schools that have policies in place that reflect the abovementioned norms. Second, this story (and others like it) are tactical moves in an effort by opponents of school choice to -- having largely lost the battle over the "statist monopoly or parental choice?" debate -- cripple voucher and other school-choice programs by pushing legislatures (and enlisting business boycotts and pressure to push legislatures) to exclude from voucher programs those schools that "discriminate."
Friday, January 11, 2019
Pappin on Rosenblatt, "Liberalism Against the Church"
Add to the conversation on liberalism, Catholicism, integralism, etc., this First Things review, by Gladden Pappin, of Helena Rosenblatt's The Lost History of Liberalism. He concludes with this:
The political development of Europe,” Pierre Manent once wrote, “is understandable only as the history of answers to problems posed by the Church.” The Lost History of Liberalism reinforces Manent’s observation even while Helena Rosenblatt colors the goals of early liberalism in golden hues. However noble early liberalism’s project of moral improvement may have been, its self-perception always included the specific aim of overthrowing the Church. As that institution has suffered under liberal advances, so has the morality and liberality that liberals claim they want to secure.
Though this is hardly its intention, The Lost History of Liberalism offers a counterpoint to the hopes of Catholics seeking rapprochement with liberalism. In spite of her best efforts to make liberalism’s interest in public morality stand on its own two feet, Rosenblatt shows that liberal public morality is always in opposition to the accounts of morality and public life offered by the Church. Liberals have never been seriously interested in the ways Catholics have sought to make peace with liberalism. The more liberals return to their roots, the more apparently shared ground will give way. The future lies in anti-ecclesiastical liberal ressourcement on the one hand, and anti-liberal ecclesiastical ressourcement on the other.
As one of those who continues to resist some aspects of the current Catholic (and other) critiques of liberalism (properly understood, which is to say, as I understand it!), I have to say this is bracing stuff. Stay tuned!
The Peter Steinfels article on the PA grand-jury report
I am very glad that Commonweal published this piece by Peter Steinfels ("The PA Grand-Jury Report: Not What It Seems"). The article should be required reading for Catholics and non-Catholics, journalists and citizens. Peter makes, among other things, some of the points I tried to make (but he makes them better) in this post ("Disentangling the Crisis") a few months ago. It's a long read, but -- again -- a must-read nevertheless.
My sense is that many Catholics are reluctant to take issue with reports and news stories about clerical abuse and episcopal cover-ups, for fear of seeming to minimize or excuse the grave wrongs committed by some. This reluctance is understandable. And yet, it is very important that Catholics and others be told the truth and understand what did, and what did not (or, what might not have) happen. Here's a bit, from near the end:
What does the report document? It documents decades of stomach-churning violations of the physical, psychological, and spiritual integrity of children and young people. It documents that many of these atrocities could have been prevented by promptly removing the credibly suspected perpetrators from all priestly roles and ministry. It documents that some, although far from all, of those failures were due to an overriding concern for protecting the reputation of the church and the clergy and a reckless disregard for the safety and well-being of children. It also documents that a good portion of these crimes, perhaps a third or more, only came to the knowledge of church authorities in 2002 or after, when the Dallas Charter mandated automatic removal from ministry. It documents, well before 2002, many conscientious attempts to determine the truth of accusations and prevent any further abuse, often successful though sometimes poorly executed or tragically misinformed. It documents significant differences between dioceses and bishops and time periods in the response to allegation of abuse. It documents major changes in vigilance and response in some dioceses during the 1990s and, as far as the evidence shows, dramatic changes after 2002.
What does the report not document? It does not document the sensational charges contained in its introduction—namely, that over seven decades Catholic authorities, in virtual lockstep, supposedly brushed aside all victims and did absolutely nothing in the face of terrible crimes against boys and girls—except to conceal them. This ugly, indiscriminate, and inflammatory charge, unsubstantiated by the report’s own evidence, to say nothing of the evidence the report ignores, is truly unworthy of a judicial body responsible for impartial justice.
Why the media were so amenable to uncritically echoing this story without investigation, and why Catholics in particular were so eager to seize on it to settle their internal differences, are important topics for further discussion.
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