Saturday, December 13, 2014
For everyone planning on attending the AALS Annual Meeting in DC -- and for any law professors or law students who'll be in the area in early January! -- here's information about the upcoming Lumen Christi / Law Professors Christian Fellowship event, featuring our own Rob Vischer and Prof. Barbara Armacost (U. Virginia). Sign up now!
Over at First Things, Mark Bauerline has a helpful report about a recent lecture by Philip Hamburger -- author of (among other things) the crucially important book, Separation of Church and State -- on the "wall of separation" metaphor, public schools, religious freedom, and anti-Catholicism.
Monday, December 8, 2014
From his concurring opinion, in McDaniel v. Paty (1978):
That public debate of religious ideas, like any other, may arouse emotion, may incite, may foment religious divisiveness and strife, does not rob it of constitutional protection. . . . The mere fact that a purpose of the Establishment Clause is to reduce or eliminate religious divisiveness or strife does not place religious discussion, association, or political participation in a status less preferred than rights of discussion, association, and political participation generally.
Adherents of particular faiths and individual churches frequently take strong positions on public issues including . . . vigorous advocacy of legal or constitutional positions. Of course, churches, as much as secular bodies and private citizens, have that right. . . .
The State's goal of preventing sectarian bickering and strife may not be accomplished by regulating religious speech and political association. The Establishment Clause does not license government to treat religion and those who teach or practice it, simply by virtue of their status as such, as subversive of American ideals, and therefore subject to unique disabilities . . . . Government may not inquire into the religious beliefs and motivations of officeholders -- it may not remove them from office merely for making public statements regarding religion, or question whether their legislative actions stem from religious conviction . . . ..
In short, government may not, as a goal, promote "safe thinking" with respect to religion, and fence out from political participation those, such as ministers, whom it regards as overinvolved in religion. Religionists, no less than members of any other group, enjoy the full measure of protection afforded speech, association, and political activity generally. The Establishment Clause, properly understood, is a shield against any attempt by government to inhibit religion as it has done here . . . . It may not be used as a sword to justify repression of religion or its adherents from any aspect of public life. . . .
Our decisions under the Establishment Clause prevent government from supporting or involving itself in religion, or from becoming drawn into ecclesiastical disputes. [n26] These prohibitions naturally tend, as they were designed to, to avoid channeling political activity along religious lines, and to reduce any tendency toward religious divisiveness in society. Beyond enforcing these prohibitions, however, government may not go. The antidote which the Constitution provides against zealots who would inject sectarianism into the political process is to subject their ideas to refutation in the marketplace of ideas, and their platforms to rejection at the polls. With these safeguards, it is unlikely that they will succeed in inducing government to act along religiously divisive lines, and, with judicial enforcement of the Establishment Clause, any measure of success they achieve must be short-lived, at best.
Monday, December 1, 2014
Thanks to Bernard Prusak, at dotCommonweal, for this account of a recent lecture by Notre Dame's President, Fr. John Jenkins, on the "Challenge and Promise of Catholic Higher Education." You can watch the video of Fr. Jenkins's talk here. Here's a bit from Prusak:
Part 3 begins at 38:30 and takes up the two questions laid down by parts 1 and 2: 1) If some model like a revived neo-scholasticism isn’t the way for Catholic colleges and universities to go, then what is? That is, how else can Catholic higher education be coherent and distinctive? 2) What do Catholic colleges and universities have to say about the “higher purposes” of learning and inquiry? In other words, what answer can Catholic higher education give to the “danger” presented by the accelerating commodification of education?
Jenkins’ answer to both these questions is the same: what can orient and shape Catholic colleges and universities, and what can inform these institutions’ self-understanding and presentation of themselves, is the long tradition of Catholic thought. As he acknowledges, Jenkins is drawing here from Alasdair MacIntyre, who defines a living tradition as “an historically extended, socially embodied argument, and an argument precisely in part about the goods which constitute that tradition.” As MacIntyre also writes (again in After Virtue), “Traditions, when vital, embody continuities of conflict.” Jenkins’ proposal is that the Catholic tradition, rooted in the doctrines of creation and redemption (minute 39), provides both “a rich set of values not readily accessible at our secular peers” and a set of commitments that “open up the possibility of interesting debate” and distinctive research programs and curricula (minute 42). Though coming toward its end, this is the heart of the paper. . . .
Friday, November 28, 2014
My friend and colleague, Bob Rodes -- who taught at Notre Dame Law School for nearly 60 years and who published in seven different decades -- died on Tuesday morning. During his career, he wrote about church history, courtly love, workman's compensation, maritime law, religious freedom, liberation theology, symbolic logic, legal ethics, . . . . He had been working on (yet) another book, a collection of his articles on church-state relations. Here is a very nice announcement and collection of reflections. For an insightful and warm introduction and overview to Bob's work, check out this piece, written by his colleague and friend, Tom Shaffer, called "The Christian Jurisprudence of Robert E. Rodes, Jr." Here is an excerpt from the announcement mentioned above, by my colleague Judge Kenneth Ripple:
His junior and senior colleagues relate remarkably similar stories about his deep and lasting impact on their lives. U.S. Seventh Circuit Judge and Professor Kenneth F. Ripple provided an apt metaphor in describing Bob’s impact on the Law School: “Every great institution has, as Scripture describes them, ‘living stones’ —individuals who, sometimes at great personal sacrifice, become the foundation of all the accomplishments that come afterward. At Notre Dame Law School, Professor Bob Rodes will always be a supporting part of the foundation of this very special law school. He loved his students; he loved his colleagues; and he loved what he called the ‘legal enterprise’ in which we all work together. He was the voice of the Spirit, always reminding us of our better selves.” . . .
Wednesday, November 26, 2014
Prof. John Witte is one of the most prolific and important law-and-religion scholars now working, and he has been a wonderful friend and generous mentor to me and to many others. This news, about his appointment to the very prestigious Woodruff Professorship (an honor he now shares with our own Michael Perry!), is wonderful. From the press release:
John Witte Jr.—acclaimed teacher, prolific scholar and director of the Center for the Study of Law and Religion—has been named Robert W. Woodruff Professor of Law at Emory University School of Law.
Witte, an internationally recognized legal historian and expert on Christian jurisprudence, marriage and family law, religious liberty and human rights, came to Emory in 1985. He has spent the past 29 years breaking ground in the field of law and religion, while remaining committed to his first calling as a teacher.
“The Woodruff professors are more than teachers and scholars of distinction; they serve a broad constituency that transcends individual departments and programs,” says Provost Claire Sterk. “As a leading authority on law and religion with an impressive body of scholarship, Professor Witte has earned a place among Emory’s most distinguished faculty.”
Witte has taught more than 5,500 students in courses such as criminal law, constitutional law, legal history, marriage and family law, religious liberty, human rights, and law and religion. Emory Law students have elected him Most Outstanding Professor 12 times. The Black Law Students Association has also elected him Most Outstanding Professor. More than 100 students have published books and articles under his supervision.
Emory University has recognized his teaching with two Crystal Apple Awards, the Emory Williams Distinguished Teaching Award, the Distinguished Faculty Lecture Award and the University Scholar Teacher Award, which was matched by a national award from the United Methodist Church Board of Higher Education.
Witte has delivered more than 350 public lectures around the world and is a regular keynote speaker at academic conferences. He has published 220 articles, 15 journal symposia and 27 monographs and anthologies, with five monographs under contract.
“Professor Witte’s writings and lectures have put him at the forefront of law and religion scholars around the world,” says Dean Robert A. Schapiro. “His work is known and praised by scholars of law, theology, philosophy, ethics, politics and history alike.” . . .
Sunday, November 23, 2014
Like Greg, I think that a Catholic must be a Catholic before he or she is a partisan and that it is entirely appropriate for leaders to invoke Biblical themes and words in public-policy speeches (although there seems to me to be a clear and tiresome double-standard used by most commentators with respect to such invocations). And, for what it's worth, I am inclined, at present, to think that the substance of the order is good policy. We do need, and have needed for a while (as both President Bush and Sen. McCain believed), "comprehensive" and just immigration reform.
I am not sure I'm on the same page, though, with respect to what I take to be Greg's suggestion that we can characterize the speech as "masterful" or make confident predictions about the President's political goodwill without first coming to some conclusions about the "legality of his executive order." A well-delivered speech with inspiring content is, it seems to me, praise-worthy if it is delivered in the context of an act that the speech's deliverer believes, in good faith, to be lawful. But, if delivered to defend an action that the deliverer believes or should know is not legally authorized, then it seems to me that even a speech that is excellent in terms of craft is not praise-worthy.
Respect for the rule of law -- which, in our context, means respect for the structural features and limits in our Constitution and for the President's obligation, even if he or she is frustrated by Congress's failure to enact the legislation he or she would like to see enacted, to faithfully execute the laws Congress has made -- is, it seems to me, as "Catholic" a principle as is welcoming solidarity with the immigrant and the stranger. (And again, to be clear, I believe that our immigration policies should be in keeping with this welcoming solidarity.)
All that said, I do not yet have a firm view on the issue of the order's legality, but I do have serious concerns and questions. And, I believe that even those of us who approve of the substance of the order should care, a lot, about whether the order really is within the President's constitutional authority. We should be troubled -- conservatives and liberals, Catholics who embrace the Church's social teachings those of us who support immigration reform, all of us -- by what seems to me to be the widespread attitude that the "power" question does not really matter, as long as we like the policy, and that Congress's failure (or, shouldn't we say, decision not) to act somehow creates power in the Executive.
Today is the Solemnity of Christ the King. In my experience, preachers in Catholic parishes don't know quite what to do with this Feast. Usually, the day's "message" or "theme" has been (again, in my experience) something to the effect that we should ask if we are "putting Jesus first in our lives" (and, certainly, we should).
And yet . . . especially in light of the emerging (and much needed) focus in the Church on religious liberty and the realities of both aggressive secularism and persecution, it's worth (re-)reading Quas Primas, the encyclical of Pope Pius XI that instituted the feast day in 1925, and remembering that this institution's purpose sounded more in political theology than in personal piety and devotion. This feast -- which we celebrate, again, this Sunday -- is a reminder that government is not all, that there are things which are not Caesar's, and that everything, in the end, is "under God."
So . . . Here is a little Solemnity-appropriate reading: Pope Pius XI's Quas Primas. Great stuff. "Viva Cristo Rey!"
UPDATE: More, on Miguel Pro, S.J., here.
Friday, November 21, 2014
In a few days, I'll be joining what looks to be a fascinating group of scholars at Princeton's Program in Law and Public Affairs for a conference called "Religions, Rights, and Institutions." I'm presenting on a panel called "Secular Carve-outs in a Religious World; Religious Carve-outs in a Secular World." I expect to be challenged by several of the papers, including Mary Ann Case's "Why 'Live-And-Let-Live' Is Not a Viable Solution to the Difficult Problems of Religious Accommodation in the Age of Sexual Civil Rights" and Larry Sager's "Why Churches Can Discriminate". Stay tuned!
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