Back in 2004, Alasdair MacIntyre wrote -- and provoked many by writing -- that "when offered a choice between two politically intolerable alternatives, it is important to choose neither." I didn't agree with him that the 2004 election presented such a choice, but many have suggested that the 2016 election does.
It's a reminder that Mirror of Justice has been around for a while that we are approaching the fourth presidential election to take place since MOJ started. The idea behind MOJ (I think!) was not to be a general "commentary on political stuff by some Catholic law professors" site and instead to be a "reflections on legal theory and things legal animated by the Gospel and the Church's social teachings"; still, unsurprisingly, a lot of us have blogged over the years about the task of coming to a decision, meaningfully and faithfully informed and guided by Christianity, about voting, i.e., about how -- this side of Heaven -- to best (albeit imperfectly) advance the common good of our political community.
A few weeks ago, in an incensed and perhaps ill-advised moment, I broke my longstanding rule against "political" status updates on Facebook and vented my post-Indiana-primary frustration that we had, somehow, settled on two "utterly loathesome, vapid, corrupt, and unworthy" candidates. Strong language, I admit, but -- I believe -- the adjectives fit. And, they fit (in different ways, to different degrees, and for different reasons) both of the two presumptive nominees. So, what to do?
I've said that, at present, I intend to simply write-in Mitch Daniels for President and then vote in other races in a way that I think will, all things considered, make more likely good results and less likely bad results on the issues I care most about. I should note that I do not agree with those who say that a Catholic is obliged to vote -- I don't think we are (we should engage with and contribute to common good of our political communities, and such engagement probably does generally involve voting -- but it doesn't necessarily). I'm also aware that there is more than a little preening and virtue-signalling involved in saying that I won't vote for either of these two nominees because (a) who are we kidding, my vote won't make a difference and (b) who are we kidding, it must be that I have some preference between these two nominees. Perhaps.
I take it as a given that, if the presumptive nominee of the Democratic Party is elected, then judges will be appointed, and administrative positions will be filled, and executive orders will be issued, and regulations will be imposed, and spending conditions will be attached, and the bully pulpit will be exploited, in ways and with implications that I will very deeply regret and that I think will be bad for religious freedom, the pro-life cause, education reform, pluralism, and other matters. (I would also deeply regret the election of someone whom I hold, in terms of character, in such low regard.) I also take it as given that if the presumptive nominee of the Republican Party were elected, while most of the foolish and even wicked policies he has purported to endorse or support would not actually be enacted, his offensive, nasty, bullying, and ignorant behavior and statements -- his coy winking at and pandering to truly disgusting online racism, nativism, and anti-semitism -- would make it impossible to have any respect for the Presidency, would threaten the country's economic and security well-being, and would make even worse the already depressingly bad state of politics and public discourse in the United States. I suspect he would not, unlike his opponent, be ideologically motivated to fill judgeships and administrative positions in ways that I would regret -- because, after all, it's not clear he's "ideologically" or philosophically motivated to do anything -- but . . . that doesn't feel like enough. On the other hand, and again, his opponent is also unworthy, corrupt, wrong, etc. And so it goes. Maybe, for this year anyway, Prof. MacIntyre is right.
Sunday, May 22, 2016
Michael Brendan Dougherty has an essay posted called "Why the Little Sisters of the Poor Shouldn't Settle for a Stingy Exemption." The piece echoes some things written by others over the past few years, making the basic point that arguing for exemptions from generally applicable laws can, all things considered, be bad for religious freedom (because, for example, such arguments tend to focus merely on the "sincerity" of the "beliefs" being burdened, rather than on the truth of the matter). He writes:
It is time for plaintiffs in religious liberty cases and for their advocates in the culture wars to try a different strategy. As the administrative state reaches deeper into our lives, and as it begins to provision positive rights to people through other private actors, the number and diversity of religious liberty cases are only going to grow. Right now, religious people ask for "exemptions" and "accommodations" to pursue their own goals because those goals are "religious." And they are granted narrow avenues to pursue these ends according to their (presumably quixotic) personal beliefs. Instead they should argue that their beliefs deserve the respect of the law because they are true, and that their actions deserve legal protection because they are good. . . .
Fair enough. Someone should make the argument -- notwithstanding the very small chance of the argument gaining any traction in our present circumstances -- that the Little Sisters (and others) are not only "religious" in believing, but correct in believing, that, say, the contraception-coverage mandate is unjust. (And, I definitely agree with Dougherty's assessment of Judge Posner's performance at oral argument in Notre Dame's case.)
Still, the givens are the givens, and the Little Sisters (and their lawyers) have to use the arguments and categories that are available, and try to secure from the (overreaching) state the concessions they can get.
Wednesday, May 18, 2016
Here's my contribution to the symposium on the Court's recent (and somewhat cryptic) per curiam opinion in the Little Sisters of the Poor case. A bit:
. . . Regardless of what happens in the ongoing contraception-coverage saga, though, there are more than a few troubling signs that this policy of accommodation and the commitments it reflects are falling out of favor and even being squarely rejected. More and more, the enterprise of accommodation of religion, which is so crucial to the creation and maintenance of civic friendship in a diverse political community, is linked in the public mind and in political arguments with reactionary and even “bigoted” resistance to or reservations about the ongoing and dramatic shifts in attitudes and laws regarding sexuality, family, marriage, and identity. Increasingly, commentators’ emphasis seems to be shifting from the invaluable work that religious civil-society institutions do to the ways in which their norms and practices differ from those of the liberal state. There is decreasing appreciation among scholars and officials for religious organizations’ freedom-enhancing role and the good of pluralism and increasing worry that these organizations’ distinctiveness might, in some cases, complicate the state’s ambitions or undermine its goals. In some quarters, there is more fear that the accommodation of religion will somehow endorse or involve an insult to a third party’s sense of dignity than there is that state action will violate the right to religious freedom that human dignity demands.
To quote the symposium contribution of my friends and colleagues Nelson Tebbe, Micah Schwartzman, and Richard Schragger, it is a “demand of justice” that political authorities in diverse and sometimes disagreeing communities avoid, to the extent their obligations to promote and protect the common good allow it, burdening religious exercise or violating religious conscience. We should hope that, going forward, this demand will be heard and heeded. There is no denying, though, that to the extent the right to religious freedom is regarded as a luxury good, a license to do wrong, or as special pleading by the culture war’s losers, it is increasingly vulnerable. This should concern us all, because believers and nonbelievers alike benefit from a legal and cultural commitment to religious freedom and have a stake in the legal regime that respects and protects it.
Monday, May 16, 2016
Here's the Call for Papers for the always-enjoyable-and-inspiring annual Fall Conference of the Notre Dame Center for Ethics & Culture:
Each year on the campus of Notre Dame, the Center hosts its interdisciplinary Fall Conference, the most important venue for truly fruitful dialogue and exchange among the world's leading Catholic thinkers, as well as those from other traditions, on pressing and vexed questions of ethics, culture, and public policy. The Conference attracts five hundred to six hundred participants annually and features more than one hundred paper presentations in disciplines ranging from philosophy, theology, political theory, and law to history, economics, science, and the arts.
Our 17th annual Fall Conference, "You are Beauty: Exploring the Catholic Imagination," will consider “aesthetic contemplation sublimated in faith” (“Letter to Artists,” Pope St. John Paul II), exploring the relationship between the imagination, beauty, truth, and religion in a variety of contexts, particularly the arts, music, architecture, literature, philosophy, theology, political theory, and the sciences.
To submit a paper for the Fall Conference, please email a one-page abstract and a CV to [email protected] by July 1, 2016. Notification of acceptance will be made by August 15, 2016. The conference will take place November 10 - 12, 2016 at the University of Notre Dame.
