Marge Simpson and Ned Flanders help us understand "Protestant Heaven" and "Catholic Heaven," here.
Thursday, October 26, 2006
"The Simpsons" on Heaven
Tuesday, October 24, 2006
"The End of Education"
My Notre Dame colleague, philosopher Alasdair MacIntyre, has this provocative essay ("The End of Education: The Fragmentation of the American University") in the latest issue of Commonweal magazine. The piece opens with this:
What should be the distinctive calling of the American Catholic university or college here and now? It should be to challenge its secular counterparts by recovering both for them and for itself a less fragmented conception of what an education beyond high school should be, by identifying what has gone badly wrong with even the best of secular universities. From a Catholic point of view the contemporary secular university is not at fault because it is not Catholic. It is at fault insofar as it is not a university.
(Cf., e.g., Marty Peretz.) Notwithstanding this initial focus on the Catholic university, the piece has a lot to say about universities, and university education, generally. I wonder, does it have anything to say about law schools and legal education?
Also, this paragraph seems worth keeping in mind, as we reflect on the recent op-ed by Notre Dame's Provost and President on Harvard's plans to institute a religion-class requirement:
Yet the major Catholic universities seem unlikely to accept this calling, if only because their administrative leaders are for the most part hell-bent on imitating their prestigious secular counterparts, which already imitate one another. So we find Notre Dame glancing nervously at Duke, only to catch Duke in the act of glancing nervously at Princeton. What is it that makes this attitude so corrupting? What has gone wrong with the secular university?
Friday, October 20, 2006
More on the New York contraception-mandate case
Here (thanks to Professor Friedman) is commentary on the decision by the New York Court of Appeals upholding that state's narrow religious-employer exemption to its contraception-coverage mandate. The commentary includes a line from the opinion that I had overlooked:
"[W]hen a religious organization chooses to hire non-believers it must . . . be prepared to accept neutral regulations imposed to protect those employees' legitimate interests in doing what their own beliefs permit," Judge Smith wrote. "This would be a more difficult case if plaintiffs had chosen to hire only people who share their belief in the sinfulness of contraception."
Why, exactly, is this true? That is, why should a religious organization's decision to "hire non-believers" require it to compromise its identity and commitments? It seems to me that this line of reasoning would have dramatic effects on, say, Catholic universities that (a) are committed to being meaningfully Catholic but who (b) believe also that their Catholic mission is enhanced by the presence of engaged, sympathetic non-Catholics.
Also, Eugene Volokh has some thoughts about the court's standard-of-review ("mystery scrutiny") in state-constitution free-exercise cases.
Sovereignty and Illiberalism
Paul Horwitz has a post over at Prawfsblawg about a new article by Angela Riley, "Sovereignty and Illiberalism," and also about Professor Riley's new course, "Illiberal Groups in the Liberal State." Both the article, and the course, look fascinating. Here's the blurb about the course:
Democracies within which ethnic, indigenous, religious or national minorities exist attempt to impose on them the values of the dominant society. Illiberal groups respond to this pressure with claims for equality, fair representation in the political process, and, perhaps most importantly, autonomy. This seminar will discuss the challenges of accommodating the rights and needs of illiberal groups within the liberal state. It will focus, in particular, on the pressing philosophical and legal questions. Of particular import will be an examination of U.S. Supreme Court jurisprudence (e.g., Boy Scouts of America v. Dale; Santa Clara Pueblo v. Martinez; Wisconsin v. Yoder; etc.) in which the claims of illiberal groups have been examined by American courts.
Professor Riley is taking suggestions, in the comments box, for additional readings.
Thursday, October 19, 2006
"Faith Center" op-ed
Here is a link to an op-ed piece of mine, which appears in the Los Angeles Daily Journal, about the Ninth Circuit's recent decision in the Faith Center case. In that case (more info here), the panel, per Judge Paez, concluded that a public library may exclude "religious worship" from a policy that opens library rooms broadly to "meetings, programs, or activities of educational, cultural, or community interest." My piece focused more on Judge Karlton's opinion, in which he wrote, among other things:
- Where government plays a role in the religious life of a pluralist society, there is the danger that government will favor the majority religion and seek to control or prohibit the rites of minority religions. Such favor can only lead to alienation and social unrest. . . .
- The wall of separation between church and state that Thomas Jefferson thought the First Amendment raised, in no way prejudices the practice of anyone?s religion. Instead, it serves the salutary purpose of insulating civil society from the excesses of the zealous. . . .
In the piece, I write:
[Judge] Karlton asserted that the "wall of separation between church and state that Thomas Jefferson thought the First Amendment raised, in no way prejudices the practice of anyone's religion." True enough. The separation of church and state is crucial to any clear vision of religious freedom. He continued, however: "Instead, it serves the salutary purpose of insulating civil society from the excesses of the zealous."
This claim - that the First Amendment should be applied by judges to safeguard a tranquil, God-free public square - is badly misguided.
Religion matters, and people care about it. The excesses of religious believers does not mean that judges should be particularly suspicious of the zealous. Those who crafted our Constitution knew better. They believed that both authentic freedom and effective government should be secured through checks and balances rather than standardization. It is both mistaken and quixotic to employ the First Amendment to smooth out the divisions that are an unavoidable part of the political life of a diverse people.
For a more developed argument that judicial observations or predictions of "religious divisiveness" should do little work in supplying the First Amendment's enforceable content, see this article of mine.
New York's contraception mandate upheld
The New York Court of Appeals has decided -- following the California Supreme Court -- that New York's contraception-coverage mandate, which exempts "religious employers" but defines "religious employers in a very narrow way," violates neither the federal nor the New York free-exercise clause.
For commentary on the California case, which is relevant to New York's decision, go here, or here, or here. As I wrote, more than two years ago -- time flies, when you're bloggin' --
But perhaps the most provocative and unsettling feature of the California law — and of the majority's constitutional defense of it — is the distinction that it both presumes and polices between "the inculcation of religious values" and (mere?) works of mercy. Justice Kennard confessed, in a short concurring opinion, "I have serious doubt that the First Amendment...allows California to limit its religious employer exemption to religious entities that have as their purpose the inculcation of religious values, denying that exemption to religious entities...that are organized for the purpose of feeding the hungry, caring for the sick, and providing shelter to the homeless." As well she should. The court's opinion, in Justice Brown's words, begs a crucial question: "may the government determine which parts of bona fide religious organizations are religious and which parts are secular...in order to infringe the religious freedom of that portion of the organization the government characterizes as secular?" Justice David Souter's concerns — expressed in Lee v. Weisman, a Supreme Court case about prayers at graduation — seem applicable here: "I can hardly imagine," he observed, "a subject less amenable to the competence of [government officials], or more deliberately to be avoided where possible," than "comparative theology."
The problem with the distinction that the act presumes is not simply that state actors are incompetent to draw and administer it. More fundamentally, we should worry that, by determining for its own purposes the meaning and significance of religious organizations' work, and by allocating burdens and benefits on the basis of state-crafted distinctions between "religious" and "secular" activities, the government can subtly but powerfully reshape and domesticate the content and challenge of faith. As Justice Brown put it, through the act, "the government is not accidentally or incidentally interfering with religious practice; it is doing so willfully by making a judgment about what is or is not religious." In a sense, the act's "religious employer" exemption's criteria reflect, and reinforce, a controversial, sectarian, privatized notion of what religion is, and what religious communities do: Religion is about belief and values, not service, sacrifice, and engagement. By requiring, as a condition of participation in public life, that Catholic Charities acquiesce to this notion, California is not only taking sides in an irreducibly religious debate about human sexuality. It also, in Justice Brown's words, "impoverish[es] our political discourse and imperil[s] the foundations of liberal democracy."
Cormac McCarthy and Moral Absolutes
I love Cormac McCarthy's work. It's not exactly cheery stuff, but the prose is incredible and the themes are deep. His new novel, "The Road," has been getting rave reviews, and I cannot wait to read it. Here, just for a taste, is William Kennedy in the New York Times:
Cormac McCarthy’s subject in his new novel is as big as it gets: the end of the civilized world, the dying of life on the planet and the spectacle of it all. He has written a visually stunning picture of how it looks at the end to two pilgrims on the road to nowhere. Color in the world — except for fire and blood — exists mainly in memory or dream. Fire and firestorms have consumed forests and cities, and from the fall of ashes and soot everything is gray, the river water black. Hydrangeas and wild orchids stand in the forest, sculptured by fire into “ashen effigies” of themselves, waiting for the wind to blow them over into dust. Intense heat has melted and tipped a city’s buildings, and window glass hangs frozen down their walls. On the Interstate “long lines of charred and rusting cars” are “sitting in a stiff gray sludge of melted rubber. ... The incinerate corpses shrunk to the size of a child and propped on the bare springs of the seats. Ten thousand dreams ensepulchred within their crozzled hearts.” . . .
The overarching theme in McCarthy’s work has been the face-off of good and evil with evil invariably triumphant through the bloodiest possible slaughter. Had this novel continued his pattern, that band of marching thugs would have been the focus — as it was with the apocalyptic horsemen of death in his second novel, “Outer Dark,” or the blood-mad scalp-hunters in his masterpiece, “Blood Meridian,” or the psychopathic killer in his recent novel, “No Country for Old Men.” But evil victorious is not this book’s theme. . . .
(Here is another review, from Slate.com.) Now, at one point in the book, the two main characters (the boy and his father) narrowly escape a gang of cannibals:
When six of the cannibals return to the house the man and boy barely escape the same fate. Hiding, afraid to breathe, the father tells the boy it’s going to be O.K. He says that often.
The boy asks: “We wouldn’t ever eat anybody, would we?”
“No. Of course not. ...”
“No matter what.”
“No. No matter what.”
“Because we’re the good guys.”
“Yes.”
“And we’re carrying the fire.”
“And we’re carrying the fire. Yes.”
Here's a question, which resonates, I think, with the recent renewal of interest in some quarters in "torture warrants": What has to be true about the world in order for it to be true -- really true -- that there are some things that "the good guys" do not do, no matter what? That is, what are the premises of the claim implicit in the father's assurance to his son that, "no matter what," to be a "good guy" is to be someone who does not do certain things, e.g., kill other human beings for food?
Misunderstanding "separation," redux
Following on the heels of Rep. Katherine Harris (see here), Julaine Appling, of the Wisconsin Family Research Institute, is reported here to have said, in the context of a same-sex-marriage debate, the "separation of church and state" is a "fictitious wall" and a "fabrication." Certainly, few concepts are at the same time so important, so misused, and so misunderstood as separation.
Consider this, from Pope Benedict (in The Salt of the Earth). After observing that, in fact, it was Christianity that brought the separation of Church and state into the world, he continues:
“Until then the political constitution and religion were always united. It was the norm in all cultures for the state to have sacrality in itself and be the supreme protector of sacrality. . . . Christianity did not accept this but deprived the state of its sacral nature. . . . In this sense, this separation is ultimately a primordial Christian legacy and also a decisive factor for freedom. Thus, the state is not itself a sacred power but simply an order that finds its limits in a faith that worships, not the state, but a God who stands over against it and judges it.”
Or this, from Deus Caritas Est:
Fundamental to Christianity is the distinction between what belongs to Caesar and what belongs to God (cf. Mt 22:21), in other words, the distinction between Church and State, or, as the Second Vatican Council puts it, the autonomy of the temporal sphere. . . . The State may not impose religion, yet it must guarantee religious freedom and harmony between the followers of different religions. For her part, the Church, as the social expression of Christian faith, has a proper independence and is structured on the basis of her faith as a community which the State must recognize. The two spheres are distinct, yet always interrelated.
The Nietzsche Family Circus
This is hours of fun.
For a "Catholic Legal Theory" connection, I'll add this (cribbing, sort of, from Alasdair MacIntyre's "Three Rival Versions" book): "In the end, it's St. Thomas or Nietzsche." Discuss.
Wednesday, October 18, 2006
Bainbridge on "The Communitarian Connundrum"
Here's our own Steve Bainbridge, commenting on communitarianism:
. . . Civic virtue also can be created by secular communities. As James Q. Wilson observes, "something in us makes it all but impossible to justify our acts as mere self-interest whenever those acts are seen by others as violating a moral principle." Rather, "[w]e want our actions to be seen by others—and by ourselves—as arising out of appropriate motives." Voluntary communities strengthen this instinct in two ways. First, they provide a network of reputational and other social sanctions that shape incentives. Virtuous communities will use those sanctions to encourage virtue among their members. Second, because people care more about how they are perceived by those close to them, communal life provides a cloud of witnesses about whom we care and whose good opinion we value. We hesitate to disappoint those people and thus strive to comport ourselves in accordance with communal norms.
The nanny state is a poor substitute, at best, for the virtue inculcating power of faith and voluntary community. We may fear the faceless bureaucrat, but he does not inspire us to virtue. Conduct that rises above the lowest common moral denominator thus cannot be created by state action. But while the state cannot make its citizens virtuous, it can destroy the intermediary institutions that do inculcate virtue. As Richard Epstein observes, "Communities can be destroyed from without; but they cannot be created from without; they must be built from within."
To be clear, I am not arguing for some libertarian utopia in which the state has no role beyond that of a night watchman. As Edmund Burke once observed, there is "a limit at which forbearance ceases to be a virtue." At that limit, the state properly steps in.
The Calvinist principle of sphere sovereignty offers one way of thinking about the line between legitimate and illegitimate uses of government power. Social institutions—including both the state and the corporation—are organized horizontally, none subordinated to the others, each having a sphere of authority governed by its own ordering principles. Expansion of any social institution beyond its proper sphere necessarily results in social disorder and opens the door to tyranny. The trouble with the state thus is not its existence, but its expansion beyond those functions prescribed by custom and convention, which were legitimized by ancient usage, into the pervasive nanny state perpetually grasping at aspects of social life to drag into its slavering maw.
From a perspective founded on sphere sovereignty, the progressive communitarian's basic flaw is his willingness to invoke the coercive power of the state in ways that deny the right of mankind acting individually or collectively through voluntary associations to order society. In contrast, conservatives are unwilling to sacrifice ordered liberty at the altar of community. A conservative properly insists that individuals be left free to define for themselves what conduct shall be deemed trustworthy or honorable, rather than being forced to comply with, say, Geoffrey Stone's definition of what makes for a good community.
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