Here is an interesting interview with Prof. Steven Smith (San Diego) -- in my view, one of the most important and insightful law-and-religion scholars working -- about his new book and about the "fate of American religious liberty." (Especially as it becomes increasingly common for people to tendentiously dismiss concerns about religious liberty as "bigotry" or "dog whistles.") Here's a bit:
In Rise and Decline I suggest that our contemporary approach to religious pluralism might accurately be characterized as one of denial (or self-deception). We intone, over and over again, that government must be “neutral” toward all religions. And then we desperately try to ignore or obfuscate the fact that in cases of genuine conflict, there simply is no meaningfully neutral position. In this vein, a pervasive strategy is to criticize your opponent’s position for departing from neutrality (as it will, inevitably) while distracting attention (other people’s and your own) away from the fact that your own position is equally a departure from neutrality. There are various techniques for accomplishing this. But the language of “imposing values on others” is one very common (and often rhetorically effective) way of practicing this sort of deception or self-deception.
The exchange among Michael Hanby, George Weigel, and Rod Dreher, over at First Things, is very much worth a read. Hanby, in "The Civic Project of American Christianity", takes stock of our times, and writes:
"[A] revolution in fundamental anthropology will invariably transform the meaning and content of justice and bring about its own morality. We are beginning to feel the force of this transformation in civil society and the political order. Court decisions invalidating traditional marriage law fall from the sky like rain. The regulatory state and ubiquitous new global media throw their ever increasing weight behind the new understanding of marriage and its implicit anthropology, which treats our bodies as raw material to be used as we see fit. Today a rigorous new public morality inverts and supplants the residuum of our Christian moral inheritance.
This compels us to reconsider the civic project of American Christianity that has for the most part guided our participation in the liberal public order for at least a century. . . .
George Weigel (among other things) advises -- and makes a point that I think cannot be made often enough to those of us who aspire to some kind of constructive engagement with and expression about the whole "faith, culture, and public life" cluster of matters:
In a culture that has lost contact with reality, a Church in America equipping its people to be the missionary disciples they were baptized to be (a vocation that includes responsible citizenship) must, in its preaching and catechesis, help its people reestablish that contact. In circumstances as philosophically impoverished as ours, appeals to “metaphysics” and “anthropology” are likely to fail, save with a very small remnant. Similarly, attempts to fight the new Gnosticism with the weapons of logic deployed in service to moral truth are almost certainly doomed to be frustrated, because public life is not, in the final analysis, an exercise in logic alone. But offering the people of the Church a new way to see Things As They Are by looking at the world through the lens of biblical faith might offer a way forward. N. T. Wright puts what I’m trying to say succinctly when he argues that the entire burden of the Pauline letters is to teach new Christians to “think within the biblical narrative, to see themselves as actors within the ongoing scriptural drama: to allow their erstwhile pagan thought-forms to be transformed by a biblically based renewal of the mind” (emphasis added).
Dreher is (even) more pessimistic (or, as he says, "realistic"):
If by “Christianity” we mean the philosophical and cultural framework setting the broad terms for engagement in American public life, Christianity is dead, and we Christians have killed it. We have allowed our children to be catechized by the culture and have produced an anesthetizing religion suited for little more than being a chaplaincy to the liberal individualistic order. . . .
The civic project of American Christianity has come to an end, for how can we produce Christian civic life when we are not producing authentic Christians?
This is not to endorse quietism. I don’t think we can afford to be disengaged from public and political life. But it is to advocate for a realistic understanding of where we stand as Christians in twenty-first-century America. Our prospects for living and acting in the public square as Christians are now quite limited.
Put bluntly, given the dynamics of our rapidly changing culture, I believe it will be increasingly difficult to be a good Christian and a good American. It is far more important to me to preserve the faith than to preserve liberal democracy and the American order. Ideally, there should not be a contradiction, but again, the realities of post-Christian America challenge our outdated ideals.
There is posted at the Moment website a symposium on the topic "Do the Religious Beliefs of Supreme Court Justices Influence Their Decisions?" The participants are prominent journalists and writers about the Supreme Court, including (not naming all, but just the first three listed!) Tony Mauro, Lyle Denniston, and Robert Barnes.
I've addressed this issue several times over the years at this and other blogs -- as have many others! -- often in the course of replying to the suggestion or accusation that the Catholic justices are imposing Catholic teachings, rather than interpreting and applying the Constitution, in abortion cases. (In the symposium, Lyle Denniston writes that "[i]n his rulings on partial birth abortion, Justice Kennedy has especially been acting out his personal Catholic faith", but this in-my-view unfounded claim seems to reflect Lyle's view that Kennedy's stances in the abortion context are somehow inconsistent with his emphasis in other contexts on "liberty interests.")
Some of the participants observe, and I agree, that it is, if nothing else, interesting that the Court consists at present of six Roman Catholics, three Jews, and no Protestants. (Here's a WSJ thing I did on this subject a few years ago.) I also think that what Emily Bazelon (and several others in the group) said is basically right (at least with respect to some -- I would say a relatively small number of -- cases whether the relevant legal materials are underspecific):
[R]eligious beliefs are part of the sensibilities of some judges, and can inform how they approach cases, even if they don’t say so. It doesn’t make sense to think of the Court as Olympian and objective. The justices are just people, informed by personal background and history. Religion is a component of that.
That said, a few things that some of the participants said struck me as not quite right, or at least as incomplete. (I'm not counting here the symposium editor's report that "[j]ust a decade ago, the general consensus was that justices were like umpires, objectively presiding over the nation’s legal system.") For example, Lyle Denniston -- a widely and rightly respected Court observer -- states that "[i]n the past, Supreme Court justices were highly reluctant to allow their own values to come into play when ruling on religious matters." I am skeptical. For example, it seems clear to me that in the school-aid cases of the 1960s, 1970s, and 1980s -- cases that some of the participants characterize as "separationist" -- the "values", including the "religious" values, of the justices opposing the aid in question did plenty of work in shaping their views and driving their conclusions about the limits imposed by the First Amendment on allowing Catholic schools and students to participate in education-funding programs. It does not seem right to say that we moved away from the strict no-aid view simply because new justices, unlike their predecessors, were willing to allow their "religious" beliefs (or, more specifically, their Catholic beliefs) to color their decisions about aid. It seems more likely that this move owed a lot to a growing appreciation on the Court for the fact that the strict no-aid view owed more to Justice Black's and others' "own values" than it did to the requirements of the Fourteenth Amendment.
I also thought that Stephen Wermiel might overstate the matter when he says that "the separationist view", which he associates with Justice Brennan, has "all but disappeared" on the Court. Here, I think we need to be a bit more nuanced about what "separationist" means, and doesn't mean. For example, some of us think that the Court's 9-0 decision in Hosanna-Tabor is an (appropriately) "separationist" decision, one that vindicates what Wermiel calls "the essence of [Brennan's] separationist view—that having government involved in your religion demeans your religious beliefs." And, the strict separationist Justice Brennan supported strongly the idea -- the idea that is operationalized in the Religious Freedom Restoration Act, which was interpreted and applied in Hobby Lobby -- that it is appropriate to exempt religious believers and institutions, when it's possible, even from generally applicable laws that burden religious exercise, an idea that, unfortunately (as Paul discussed the other day), is increasingly regarded as a bigoted, right-wing "dog whistle."
I am so proud and pleased that a contingent of 690 (!) students, faculty, and staff from Notre Dame will be travelling to bear witness at the annual March for Life in Washington, D.C. (More here.) "What Would You Fight For?", indeed. Go Irish.
In the January issue of First Things, Archbishop Chaput's 2014 Erasmus Lecture, "Stranger in a Strange Land," is featured. I thought is was excellent, and was really moved by the closing paragraphs:
Each of our lives matters. Our journey does not end in the grave. What we do has consequences for our own eternity and those around us. Our lives gathered together as communities of faith and as a nation shape the conscience and the future of the “city upon a hill” that John Winthrop imagined and that we have inherited.
We were made by God to receive love ourselves and to show love to others—love anchored in the truth about the human person and the nature of human relationships. That’s our purpose. That’s why we were created. We’re here to bear each other’s burdens, to sacrifice ourselves for the needs of others, and to live a witness of love for the God who made us—not only in our personal lives, but in all our public actions, including every one of our social, economic, and political choices.
These words remind me of a C.S. Lewis passage, one that I've quoted in several of my own academic papers:
“There are no ordinary people. You have never talked to a mere mortal. Nations, cultures, arts, civilizations - these are mortal, and their life is to ours as the life of a gnat. But it is immortals whom we joke with, work with, marry, snub and exploit - immortal horrors or everlasting splendors. This does not mean that we are to be perpetually solemn. We must play. But our merriment must be of that kind (and it is, in fact, the merriest kind) which exists between people who have, from the outset, taken each other seriously - no flippancy, no superiority, no presumption.”
It's a few years old, but I stumbled across it again and thought that it definitely deserves regular re-reading. Here is John Garvey's address, in June of 2012, to the USCCB, "Religious Freedom and the Love of God." A bit:
. . . One thing we can say is that there has been a decline in respect for religious liberty. We can measure this in two ways. Think about a suit of armor. One measure of its protection is its scope, or the extent of its coverage. (A bulletproof vest covers the heart and lungs. A knight’s armor covers from head to toe.) The other measure is its strength. (A suit of armor will protect the knight against arrows but not against armor-piercing bullets.)
Religious liberty these days is given a lot less scope. It protects priests but not teachers, Loyola but not St. Xavier, religious orders but not hospitals. Religious organizations like schools, hospitals, and Catholic Charities provide the public with valuable services. The government lets them do this work, but it is blind to their religious dimension. The problem with this way of parsing the work of religious institutions is that they do their work because of their religious beliefs. Catholic Charities does adoptions because the gospel tells us to care for the weak and vulnerable. Catholic universities exist because the gospel tells us to teach all nations. Migration and Refugee Services lives out the teachings of the Sermon on the Mount and Matthew 25. This is the heart of the Christian religion. Serving others – not just Catholics; all others – is not just a recommendation. It’s a requirement.
Religious liberty also has less strength. It is weaker than it once was. This happened as a matter of constitutional law in 1990 when the Supreme Court traded the rule of Sherbert v. Verner2 for the rule of Employment Division v. Smith.3 The first amendment rule once was that religious liberty is protected unless the government has a compelling reason to override it – like protecting the national security in time of war, or preventing the taking of innocent life. Now the rule is that religion is protected against discrimination; but otherwise the government can ignore religious claims for any legitimate reason (like the aesthetic preferences of a historic preservation code).
Smith invited religious people to seek protection from the elected branches of government rather than the judiciary, as a matter of statutory and regulatory law rather than constitutional law. In the last year we have seen the elected branches deny that protection. When the law forces Catholic Charities to choose between living the beatitudes and affirming behavior (like gay marriage) that the Church proscribes, freedom of religion is altogether lost. Catholic Charities has to set aside one or another of its beliefs: either the charity or the obedience they are called to in the gospel. . . .
Paramount Pictures is in talks to acquire U.S. distribution rights to Silence, and the tentative plan is to release the film November 2015, right in that holiday corridor where awards-bait pictures dwell. Silence is one of those pictures on Scorsese’s bucket list, an adaptation of the Shusako Endo novel that Scorsese has longed to make for more than a decade. The project finally came together whenEmmett/Furla/Oasis Films principals Randall Emmett and George Furla committed the production financing, with Corsan Entertainment co-financing. Shooting will get underway in Taiwan. The film takes place in the 17th century, where two Jesuit priests face violence and persecution when they travel to Japan to locate their mentor and to spread Christianity. The script is by Scorsese’s Gangs Of New York scribe Jay Cocks, and the filmmaker has pulled together a cast including Liam Neeson, Andrew Garfield, Ken Watanabe and Adam Driver.
Many, including our own Michael Perry, have explored the question whether the "morality of human rights", or claims about "human dignity", are meaningful if it is not the case that human beings are created, sustained, and loved by God. In this piece ("If There's No God, Are Humans Equal?"), philosopher Christopher Kaczor engages a version of the question. (The piece of a review of Our Declaration: A Reading of the Declaration of Independence in Defense of Equality, by Danielle Allen.) He asks, "[h]uman equality clearly cannot rest on qualities such as wealth, virtue, and intelligence, which are unequally distributed among us. So, what is it that makes all of us equal?" Good question!
I suppose it is not news that the political authorities in the People's Republic of China are not -- despite the sincere, or perhaps naive, hopes of some -- friendly to academic, political, or religious freedom. This story ("Maoists in China, Given New Life, Attack Dissent") ran yesterday on the front page (!) of the New York Times and is, in my view, a must-read . . . especially for administrators and officials of institutions of higher education (including my own) considering collaborations or parterships with such institutions in China. Here's a bit:
. . . Two years into a sweeping offensive against dissent, Mr. Xi has been intensifying his focus on perceived ideological opponents, sending ripples through universities, publishing houses and the news media and emboldening hard-liners who have hailed him as a worthy successor to Mao Zedong.
In instructions published last week, Mr. Xi urged universities to “enhance guidance over thinking and keep a tight grip on leading ideological work in higher education,” Xinhua, the official news agency, reported.
In internal decrees, he has been blunter, attacking liberal thinking as a pernicious threat that has contaminated the Communist Party’s ranks, and calling on officials to purge the nation of ideas that run counter to modern China’s Marxist-Leninist foundations. . . .
The Times story calls into serious question, it seems to me, the relatively optimistic thesis of this article ("China Warms to Catholic University's Mission"), which ran on the Times Higher Education site a few days ago.
The Grinches have failed (for now) again in the effort to undo educational-choice initiatives in Florida. The article's concluding paragraph puts the matter well:
In national debates over school choice, public education is increasingly coming to be understood not in terms of school buildings, but delivery of educational services. School choice measures such as personal learning scholarship accounts and tax credit scholarships allow those who know the needs of the child best— the parents— to choose an educational option that best meets the needs of the child. The recent court victory will allow hundreds of Florida families to do just that.
