I'm happy to announce, on behalf of the MOJ crew, that we're being joined by Erika Bachiochi, a prolific writer on bioethics, feminism, and Catholic thinking and teaching about these matters. For a taste of her scholarly writing, check out "Embodied Equality: Debunking Equal Protection Arguments for Abortion Rights." Welcome, Erika!
Thursday, May 14, 2015
Welcome to Erika Bachiochi
Monday, May 11, 2015
For the "changing religion" files . . .
Hillary Clinton was in the news recently when she said, in a speech, that "deeply seated religious beliefs" "will have to be changed" in order to secure broader abortion rights, etc. Now, this story ("China orders Muslim shopkeepers to sell alcohol, cigarettes, to 'weaken' Islam") from China provides an example of a modern government seeking, for its own purposes, to weaken the hold of religious beliefs on its subjects. Here's a bit:
Chinese authorities have ordered Muslim shopkeepers and restaurant owners in a village in its troubled Xinjiang region to sell alcohol and cigarettes, and promote them in “eye-catching displays,” in an attempt to undermine Islam’s hold on local residents, Radio Free Asia (RFA) reported. Establishments that failed to comply were threatened with closure and their owners with prosecution.
Facing widespread discontent over its repressive rule in the mainly Muslim province of Xinjiang, and mounting violence in the past two years, China has launched a series of “strike hard” campaigns to weaken the hold of Islam in the western region. Government employees and children have been barred from attending mosques or observing the Muslim fasting month of Ramadan. In many places, women have been barred from wearing face-covering veils, and men discouraged from growing long beards.
Both stories, it seems to me, are reminders that claims about government "neutrality" with respect to religion are more aspirational than historical. Governments care about religious beliefs, and always have. And, governments are not limited to heavy-handed tactics like China's -- licensing requirements, accreditation standards, spending conditions, and (as we have been reminded recently) tax exemptions are available, too. I explored this idea, a decade or so ago, in this article, "Assimilation, Toleration, and the State's Interest in the Development of Religious Doctrine":
Thirty-five years ago, in the context of a church-property dispute, Justice William Brennan observed that government interpretation of religious doctrine and judicial intervention in religious disputes are undesirable, because when "civil courts undertake to resolve [doctrinal] controversies..., the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern." This statement, at first, seems wise and fittingly cautious, even unremarkable and obvious. On examination, though, it turns out to be intriguing, elusive, and misleading. Indeed, Justice Brennan's warning presents "hazards" of its own, and its premises - if uncritically embraced - can subtly distort our constitutional discourse.
This Article provides a careful and close examination of the statement's premises and implications, and concludes that, far from being a "purely ecclesiastical concern," the content of religious doctrineand the trajectory of its development are matters to which even a secular, liberal, and democratic government will almost certainly attend. It is not the case that governments like ours are or can be "neutral" with respect to religion's claims and content. As this Article shows, the content, meaning, and implications of religious doctrine are and have long been the subjects of government power and policy. Secular, liberal, democratic governments like ours not only take cognizance of, but also and in many ways seek to assimilate - that is, to transform - religion and religious teaching. And, it is precisely because such governments do have an interest in the content, and, therefore, in the "development," of religious doctrine - an interest that they will, if permitted, quite understandably pursue - that authentic religious freedom is so fragile.
Friday, May 8, 2015
"Silence" is coming . . .
Here's an update on the Scorcese production of Endo's "Silence" one of my -- HT Michael Perry! -- favorite novels.
Monday, May 4, 2015
"Polarization in the U.S. Catholic Church: Naming the Wounds, Beginning to Heal"
Last week, the University of Notre Dame hosted a conference called "Polarization in the U.S. Catholic Church: Naming the Wounds, Beginning to Heal." I participated, along with a number of other people who are familiar to MOJ readers, and had some really great conversations along the way.
You can watch the video of the opening session -- which includes remarks by Michael Sean Winters in which he refers to my love of Duke Basketball as "crazed and heretical" -- here. And, here is the "Conference Rationale":
Universality (that is, small “c” catholicity) and, therefore, unity amid diversity, are acknowledged as fundamental characteristics of Roman Catholicism. But in recent years issues that are by now all too familiar to each of us have rent the Catholic Church in the United States—with the resulting divisiveness and vitriol playing out both in local churches and in public politics. Rather than the healthy debates characteristic of a living tradition, we have witnessed in our public politics—and often, also in the local contexts of everyday lives—an absence of genuine engagement and dialogue. Catholics of good will are alienated from one another. Sean Cardinal O’Malley has described the current climate of polarization as “a cancer in the Church.”[1] This is a disturbingly apt metaphor applied to the Church as the body of Christ.
The premise behind this conference is that, although particular “hot button” issues, including those surrounding issues of gender, sexuality, and authority, have divided American Catholics, there is much that yet binds us together as both Catholics and citizens. In fact, despite the magnified influence those at the poles can exert, sociological studies of polarization suggest that only 20% or less of the population occupy truly polar positions on these contested issues. Our goal, then, is to better understand the social and religious underpinnings of our divisions, to explore how our common beliefs and aspirations can help us heal some of the hurts that the divisions have caused, as well as how open dialogue with those with differing views of issues that have proved contentious might challenge us to revise and incorporate new understandings of them that might help bring healing and hope—unity in our diversity.
At this event we will provide both public and private opportunities for individuals to tell stories of wounding and brokenness. We will all hear from a genuinely diverse group of voices in the U.S. Church. We will engage the latest sociological data and use tools of social and political analysis to set the scene for theological reflection upon the present climate of moral and political polarization among Catholics. This will allow us to begin a dialogue about the “signs of the times.”
In so doing, we can then begin to think creatively about concrete steps we can take to contribute to the healing of the U.S. Catholic Church. In that process, we will listen to, and consider, members of groups within the Church—especially the Millennial generation and the growing number of U.S. Hispanic Catholics—that will comprise its faithful and its leadership in the next generation, since it is upon them that the Church will depend in shaping a vital and faithful witness in the world of the twenty-first century.
—Mary Ellen Konieczny and Charles Camosy, February 2015
Thursday, April 30, 2015
Esbeck on the Court, SSM, and religious freedom
Prof. Carl Esbeck has a thoughtful piece up at Public Discourse called "Redefining Marriage Would Erode Religious Liberty and Free Speech Rights of Citizens and Churches." A bit:
. . . [A] decision declaring state marriage laws void for animus would disparage those religious organizations and persons who believe deeply in marriage. Such a decision would stigmatize them as bigots akin to racists. That stigma would impede their full participation in democratic life, as their beliefs concerning marriage, family, and sexuality are placed beyond the constitutional pale. Because religious people cannot renounce their scriptural beliefs, a finding of animus would consign believers to second-class status as citizens whose doctrines about vital aspects of society are deemed presumptively illegitimate. The misattribution of animus would deprive believers and faith communities of their rights to the free exercise of religion, free speech, and democratic participation. Assaults on religious liberty, already under pressure, would intensify. . .
I made a similar suggestion in Commonweal, in this piece, after the Windsor decision.
Center for Ethics & Culture Call for Papers
One of the highlights of the year at Notre Dame is always the Notre Dame Center for Ethics & Culture's Fall Conference. Here is a link to the Call for Papers for this year's gathering, the theme of which is "Freedom." (I'm for it.)
Wednesday, April 29, 2015
SSM, religious exemptions, and tax-exempt status
Law-and-religion folks are familiar with the argument that the result and reasoning in the Bob Jones case should be extended and applied more broadly to cover other religious institutions that engage in what those who make the argument regard as invidious discrimination. It seems clear to me that, in the coming years, a variety of means -- including conditions on accreditation, licensing, grants, contracts, funding, public-forum access, and tax-exempt status -- are going to be used to bring the practices of religious institutions into what Nancy Rosenblum and others call "congruence" with the requirements of certain version of political liberalism.
With all that in mind, there was an interesting exchange in yesterday's oral arguments between Justice Alito and the Solicitor General:
Justice Alito: Well, in the Bob Jones case, the Court held that a college was not entitled to taxexempt status if it opposed interracial marriage or interracial dating. So would the same apply to a 10 university or a college if it opposed same-sex marriage?
General Verrilli: You know, I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I don’t deny that. I don’t deny that, Justice Alito. It is it is going to be an issue.
Given the way most (not all) of the arguments for same-sex marriage have proceeded, it seems that Verrilli is exactly right.
Robin West on "The Freedom of the Church" and the social contract
Prof. Robin West has posted a forthcoming and characteristically powerful paper, here, called "Freedom of the Church and Our Endangered Civil Rights: Exiting the Social Contract." She is responding to, inter alia, this paper of mine and this paper by Steve Smith. Here is the abstract of Prof. West's paper:
In this comment I suggest that the “Freedom of the Church” to ignore the dictates of our various Civil Rights Acts, whether in the ministerial context or more broadly, created or at least newly discovered by the Court in Hosanna-Tabor, is a vivid example of a newly emerging and deeply troubling family of rights, which I have called elsewhere “exit rights” and which collectively constitute a new paradigm of both institutional and individual rights in constitutional law quite generally. The Church’s right to the ministerial exception might be understood as one of this new generation of rights, including some newly recognized by the Court over the last two decades, some with a slightly older lineage, and some sought after but not yet won by litigants — the point of which is to exempt their holders from legal obligations which are themselves constitutive of some significant part of civil society and to thereby create, in effect, separate spheres of individual or group sovereignty into which otherwise binding legal norms and obligations do not reach. They are “rights to exit” civil society and the social compact at its core, or at least, rights to exit some substantial part of it.
All three papers are set to be published in a forthcoming volume, edited by Chad Flanders, Zoe Robinson, and Chad Flanders. In my own contribution, responding specifically to West, I write:
In Robin West’s bracing and eloquent chapter, she expresses serious concern by the asserted “right of churches and church-affiliated institutions . . . to be exempt, on grounds of institutional religious liberty, from some otherwise binding legal obligations, including the obligations to comply with the antidiscrimination mandate of our various Civil Rights Acts when hiring, promoting, or firing those of their employees who quality as ‘ministers.’” These obligations, she emphasizes, “are no small thing. . . . [They] collectively constitute, rhetorically, our shared societal commitment to rid our workforce and our schools, and therefore our larger social world as well, of discriminatory animus and the effects of that animus; they are a public declaration of our collective promise to become a less insulting, less hurtful, more inclusive, more fully participatory, more generous, and fairer society.” To violate these obligations is not only to harm an individual; “[i]t is also to break faith with and to undermine the shared national project of creating a world of equal opportunity and full participation[.]” In her view, “it is not at all clear why our nations ministers, rabbis, and imams . . . should not be drawn from the full and diverse American public . . . , no less than are our nation’s public and private school teachers, police forces, firefighters, professors, health-care professionals, service providers, and retail, factory and construction forces.” The ministerial exception, in her view – and, more generally, the proposed “freedom of the church” – is an example of a “newly emerging and deeply troubling family” of “exit rights . . . , the point of which is to exempt their holders from legal obligations which are themselves constitutive of some significant part of civil society, and to thereby create, in effect, separate spheres of individual or group sovereignty, into which otherwise binding legal norms and obligations do not hold.”
West’s indictment of my (and others’) position regarding the religious-freedom rights of religious institutions and the implications for government regulations of some of those institutions’ internal, doctrinal, educational, liturgical, ministerial, and expressive affairs is clearly and forcefully set out. Her negative evaluation of the position rests, though, on assumptions that I reject and that I also regard as not well supported in our history and traditions.
Notwithstanding her repeated invocation of “our” commitments, declarations, obligations, projects, and aspirations, West’s social contract—insofar as it is asserted to include terms that commit religious communities to submit internal decisions regarding doctrine and polity for approval by political majorities—is a contract of adhesion. The issue in, say, Hosanna-Tabor is framed in terms of efforts by would-be “miniature sub-cultural worlds” to “exit civil society, and the complex of laws, tradeoffs, and reciprocal rights and obligations that in turn constitute some aspect of our society’s legally constructed social contract.” As I see it, though, the question under consideration is precisely whether or not this “complex” and this “contract” can justifiably, and consistently with our Constitution, history, and traditions, be said to extent to the relationship between a minister and a church. When West says that “it is not at all clear why our nation’s ministers, rabbis, and imams . . . should not be drawn from the full and diverse American public,” part of the answer is that the “ministers, rabbis, and imams” are not “our nation’s”; they are their respective communities’ and it is up to those communities to decide how and from where they should be drawn. The “freedom of the church” claim is not that these institutions should escape from an obligation that expresses “our” commitment to equal opportunity or “communitarian ideals of inclusiveness, participation and integration” but that they cannot justifiably be said to be under an obligation to select their ministers, teachers, doctrines, and beliefs in accord with commitments other than their own.
In West’s chapter, she acknowledges that some exit rights, sometimes, “empower individuals to buck the dictates of an oppressive majority or an intrusive state.” “At least some of these rights,” she states – the right of the pregnant woman over body, for example – “may seem wise, at least to some of us, and at least some of the time: the parts of the social contract from which exit is sought and sometimes granted often appear to be, and may in fact be, foolish, draconian, or just witlessly intrusive.” Still, she insists, exit rights have costs—they can undermine equality and “splinter civil society”—and these costs should be but, she charges, are not acknowledged by those who explore and defend the “freedom of the church.”
As I tried to establish earlier in this chapter, though, it seems to me that the “freedom of the church,” reasonably understood and operationalized, does (or at least can) serve to “empower individuals to buck the dictates of an oppressive majority or an intrusive state.” It does (or at least can) serve, contrary to West’s claim, to “enhance individual liberty within civil society by expanding or deepening the rights of individuals to participate in that society.” It is true that seeing and respecting the just limits on the political authority’s ability to define, and enforce compliance with, “our” commitments and obligations does have, sometimes, costs, in that some projects that a majority, or maybe just a vanguard, would like to pursue cannot be accomplished efficiently or completely. West sees this fact as, sometimes, “tragic” and I agree that sometimes it is. Still, these just limits are morally necessary and attractive, and they include, in my view, limits on the regulatory power of governments over the “freedom of the church,” rightly understood.
Monday, April 27, 2015
Bishop Kevin Rhoades on the Indiana RFRA controversy
Here is a very good opinion piece by my local bishop, Bishop Kevin Rhoades, on the recent controversy in Indiana surrounding the enactment, and quick revision, of a RFRA-type law. (I weighed in here and suggested, among other things, that critics were misunderstanding or misrepresenting the law's content and probably effects.) Bishop Rhoades writes, among other things:
Where does the Catholic Church stand? I think it is important to recall the important teaching of the Second Vatican Council in its Decree on Religious Liberty. It declares that “the human person has a right to religious freedom. Freedom of this kind means that all people should be immune from coercion on the part of individuals, social groups and every human power so that, within due limits, nobody is forced to act against his or her convictions nor is anyone to be restrained from acting in accordance with his or her convictions in religious matters in private or in public, alone or in associations with others. The Council further declares that the right to religious freedom is based on the very dignity of the human person as known through the revealed word of God and by reason itself. This right of the human person to religious freedom must be given such recognition in the constitutional order of society as will make it a civil right.” The Council further teaches that “the exercise of this right cannot be interfered with as long as the just requirements of public order are observed.”
The Church believes and teaches that the right to religious freedom is founded on the very dignity of the human person. It is not an “absolute” right in that there are “due limits” and “just requirements of public order.” It seems to me that the RFRA laws are in accord with this teaching of the Church. They seek to protect our religious liberty, while also allowing for exceptions when it comes to a “compelling government interest,” since the Church also speaks of “due limits.” The “common good” would be such a limit. . . .
Friday, April 24, 2015
Roundtable, "The Catholic Legal Theory Project: Concept and Goals"
The Scarpa conference is winding down with a Roundtable conversation, involving all ten (!) of the participants. For starters . . . is there a tension between, on the one hand, talking about "creating conditions" for exploring ideas and, on the other, Patrick Brennan's critique of "dialogue" as that term is sometimes used. Rob and Marc say, "not necessarily." One can emphasize the importance of "exchange of ideas" in the educational context (and the law-school context) while at the same time sharing Patrick's concern that "dialogue" becomes, as he put it, the object of "worship" rather than a way of interacting and a means to or method for an end.
But, for the law, anyway . . . what is that end (Tom asks)? Is it the goal or purpose of human law to bring people, in Patrick's words, to "salvation in Jesus Christ?" It is, Patrick insists, to "create conditions" -- to the extent circumstances permit -- "conducive to the supernatural common good." Shifting to law schools, Michael Moreland says that the project of Catholic law schools cannot be entirely a project of evangelization; academic excellence will and does matter. At the same time, as John Breen and others emphasized, "academic excellence" should not be understood entirely apart from the Catholic mission and character of these schools.
What is the role, post-2008, of the Catholic legal scholar, doing Catholic Legal Theory, at a Catholic law school? (Dean) Rob Vischer takes this as an important and difficult question. Our scholarship has to matter to (even if not only to) the student experience and students' success and outcomes. Otherwise, it is difficult to justify the use of (in effect) students' resources to subsidize that scholarship. Patrick responds by noting that no one forces students to pay for legal scholarship; they can attend schools where faculty are not expected to engage in scholarly activities and work. (He then illustrates and elaborates with some stories about Henry Monahan.) And, Marc and Lisa recalled ways in which their scholarship -- in Law and Religion, or in Catholic feminist theory -- enriched their teaching and relationships with children.
Tom Berg recalled to Rob Vischer the fact that he (Rob) had said in his own talk that the value of Catholic Legal Theory is that it is true. That's reason enough -- more than! -- for faculty to engage in such scholarship. And if a socialist can be expected to subsidize Law and Economics scholarship, there would not seem to be anything strange about expecting law students to pay also for the scholarship of those who are engaged by and with Catholic Legal Theory. (Marc wonders, though, if a line of inquiry has to be true, or believed to be true, in order to be a worthy academic endeavor.)
Michael Scaperlanda shifted gears . . . what does this project mean outside the law schools, in practice and for practitioners? A member of the audience suggested that maybe we should, in law schools -- in order to better prepare advocates -- spend more time understanding the actual substantive claims, including religious claims, that will often motivate clients. As Kevin notes, though . . . it is not always the case (perhaps not even often the case) that the faculty in Catholic law schools are equipped to prepare students in this way. Sounding a similar note, Michael Moreland warned about "extrinsicism" in the treatment or introduction of "Catholic" materials. But again . . . what is the "impact" of Catholic Legal Theory on the practice of law? Marc suggests there isn't much, in terms of how one files one's briefs, etc. But . . . what about how one balances one's work and personal life, how one treats one's family and friends (and clients and co-workers)? Here, the impact can be real and significant. Patrick, recalling Judge Noonan's work and example, noted that Catholics have particularly good reasons for understanding and appreciating what law is and does to people (see Persons and Masks of the Law) and so he thinks that highlighting the human and personal dimensions of these materials is a good way to be a Catholic law teacher.
Now . . . what about Mirror of Justice? What's it about? What's it for? What has it done and what could it do better? (One suggestion: More Chesterton! Indeed. And more cowbell?) Does it have value and, if so, what it is? Michael suggests that, perhaps, the blog sometimes lacks a focus (or when focus comes, it's on particular elections). Susan hopes we can find more ways to get active discussion and dialogue going among the bloggers. Rob wonders if the blog-form is being eclipsed by even more "short form" media -- A 500 word post takes a lot more time to write, and to read, than a 140 character Tweet. John points out that, despite the blog's opening post, the substantive focus of the blog has perhaps narrowed (maybe in response to the times and events) to religious-freedom questions. Lisa also recalled that part of the "original mandate" was not to zero in on First Amendment questions or "hot button" social issues. Of course, as Marc pointed out ("pedantically," he says), the blog (like any blog) needs content. ("Feed the beast!") This need makes it the case that it's better for people to feel free to post -- and to actually post -- in a kind of free-form and fresh way. Kevin observed that people sometimes miss the fact that blogs can be about "quick hits" or about stay-a-while engagement. And . . . the content stays "out there," for a while, and people might find the thoughts we leave years later.
Thanks very much to Villanova, to John Scarpa, and to Patrick Brennan for hosting!
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