Today is the Feast of St. Thomas Aquinas.
Monday, January 28, 2008
Happy Angelic Doctor Day!
"When Catholicism was the Target"
I have an op-ed in today's USA Today about the Pope's visit, JFK's speech, religion-and-politics, etc. Here's a bit:
Now, perhaps it reflects poorly on the state of political oratory that one of the most discussed, and most interesting, candidate speeches in the 2008 presidential campaign was delivered nearly 50 years ago. (At least until Mitt Romney's speech about his Mormon faith last month in College Station, Texas.) Nonetheless, we should not be too surprised by the Speech's staying power. After all, we Americans have long worried about, and wrestled with, the relationship between faith and politics.
At the same time, however, our public policies and aspirations have always been shaped by religious commitments and ideals. It is then appropriate, and healthy, that the religion-and-public-life themes elaborated in Kennedy's Houston speech remain part of our national conversation. Indeed, it would be strange, and almost un-American, if they were excluded or ignored.
Free Exercise v. Parental Rights
Howard Friedman comments on a recent Oregon Supreme Court case dealing with a dispute between divorced parents over whether their 12 year-old son should be circumcised. The court ended up remanding the case for further fact findings (which is probably what I would want to do as an appellate judge in a case like this) and thus did not take the opportunity to address whether a 12 year-old has free exercise rights.
I'm not sure we've ever discussed this question on MoJ. Courts have spoken of children as religious believers and actors -- e.g., in the Gobitis dissent (the case in which the Supreme Court upheld a compelled flag salute statute as applied to 10 and 12 year-olds), Justice Stone asserted that it would deny the children's "faith as well as the teachings of most religions to say that children of their age could not have religious convictions." In such cases, the children are on the same side of the dispute as the parents, and thus there is no need to navigate the tension between religious liberty and parental rights.
How would Catholic legal theory address this tension? I presume that neither value (the children's religious liberty nor parental authority) would serve as an absolute trump, but that there would have to be some sort of context-driven sliding scale. I'm not exactly sure what the sliding scale would look like, though. I also presume that the Church would not support free exercise rights for a child based on the same criteria by which courts would defer to a child's articulated preferences in custody disputes, and that there would need to be a much greater level of maturity shown. For older children, would it matter what the child aims to preserve or attain through the invocation of free exercise rights? If a 16 year-old child wants to attend church, but her atheist parents have forbidden her from having any exposure to religious teachings, does Catholic legal theory side with the parents or the child? Does anything change if the 16 year-old wants to stay home, but her parents compel her to attend church?
Saturday, January 26, 2008
Darwin, Evolutionary Biology, and Theology
Ernan McMullin, now emeritus at Notre Dame, is. as some MOJ readers know, an Irish diocesan priest who is also one of the preeminent historians/philosophers of science of his generation. In the January 26th issue of The Tablet, McMullin has a wonderful review of Francisco Ayala's book Darwin's Gift to Science and Religion. The review is well worth reading ... here.
Faith and Alcoholism
No doubt some MOJ readers are dealing with, or have family members and/or friends who are dealing with, a drinking problem. For a terrific piece on alcoholism, religion, and related matters, I recommend this essay in the January 26th issue of The Tablet: John Waters, Finding God in an empty glass. Click here to print/read.
I don't normally blog about politics but ...
... this was just too good to pass up. Check out this article in the Onion.
HT: Anthony Scaperlanda
Friday, January 25, 2008
Jesuit, sì; Catholic, not so sure (source: David O’Brien, who coined the phrase many years ago)
I begin by thanking Rick and Michael P. for their postings on the matter Majerus at Saint Louis University. I am inclined, not because of how I feel but because of who I am—a Catholic and a Jesuit (I hold that the latter must embrace and fall within the former identity)—to say that Coach Majerus has ventured into a realm where he should not have gone. I defer to the great wisdom of Ed Peters [HERE] who is both a civil lawyer and a canonist on the pertinent legal issues raised in this matter and has intelligently commented on the controversy involving Coach Majerus.
While being an admirer of the game of basketball, a coach I am not. I cannot critique Coach Majerus for things he has said and done on the basketball court in his capacity as a basketball expert. He has the authority to direct his team, but this does not mean he is beyond authority even on the basketball court. When he or a member of his team does something improper, the appropriate authority, i.e., the referee, can call a foul. And when it comes to matters of faith and Coach Majerus’s beliefs regarding the Catholic faith, he can also be held accountable by those who have the authority to judge such matters. In this latter context, Archbishop Burke possesses the proper authority to rule on matters of faith that emerge within his proper jurisdiction where someone has committed a foul. While I appreciate the coach’s assertion that he was educated by Jesuits, that does not mean he is above reproach on matters theological. In the past, a number of famous persons who led people astray were educated in schools where members of the Society of Jesus taught. That does not mean that former-students-now-famous-persons are beyond reproach on questions of faith regardless of the pedigree of their education.
Michael was kind enough to link a post to Professor Howard Wasserman’s views on this matter concerning Coach Majerus. I dutifully read all of Professor Wasserman’s careful thoughts along with the web log comments responding to what he had to say. I think Professor W. does not appreciate or understand some major issues regarding the Catholic faith in spite of his being a visiting professor this year at Saint Louis University, and, I am sorry to say, I guess Michael doesn’t either since he expressed his concurrence with the good Professor W.
Having said that, I am of the view that Professor Wasserman has explained his view in a helpful way so that I can take stock of his perspective even though I consider that it is wrong. But I cannot say the same of one commenter to the Wasserman posting who has this to say:
This post regards the hypocrisy of the Church, and specifically Burke; so, this is your heads up (to quell the pending psuedo[sic]-religious debate): Burke has no right. No. [sic] Right. The Court found that SLU does not control the school so Burke should keep his Kerry-hating lid trapped. Yes, you have the right to spew your hate (as does anyone) but no right to influence it’s President to fire the Fat Man. The Catholic Church has an unrivaled history of murder, bigotry, hate, expulsions, crusades, massacres, forced conversion and pogroms—many say which continue to this day. How quick we are to forget, Rev. Anyone rememebr [sic] the Second Vatican? [sic] The Society of St. Pius X? Hypocrites should shut the hell up.
This quotation is a direct one. I have not changed or corrected anything in it, although I have noted some mistakes in its expression. I hasten to add that these are not the views of Professor Wasserman since he expressed his position in a different manner. Sadly, the author of this response has little or no understanding of the Catholic faith or the proper role of a bishop in matters of faith. But, this view is out in the blogosphere taking its toll and making its impact on those who can be impressed by this kind of rhetoric. This posting reveals a kind of sentiment that one encounters more and more today: if you don’t agree with me, you hate me! Nothing could be farther from the truth when it comes to what Archbishop Burke has said and may do regarding Coach Majerus. Still, the author of this commentary holds a radical and erroneous view that the Church (our Church, to borrow from earlier postings) cannot correct those whose views depart from the faith and its vital, essential teachings. And this is what Coach Majerus has done: his views on important issues (such as abortion and embryonic stem cell research) depart from the teachings of the Church to which he claims membership. It therefore becomes the responsibility of the principal teacher, i.e., the local ordinary—Archbishop Burke, to correct those whom he has been ordained to teach and to lead when they fall into error. Coach Majerus has the responsibility to lead his team on the basketball court and to steer his charges away from making mistakes involving the game of basketball. When they do make mistakes, he has the duty and the authority of their coach to correct the mistakes made by members of the basketball team. In a parallel fashion, Archbishop Burke has his duty to lead the faithful and those who claim that they belong to the faith, and if Coach Majerus has different views on these matters which differ from those of the Church, he has committed a foul to which Archbishop Burke is the referee who has the corresponding obligation to take corrective action. RJA sj
More on Majerus
With respect to the dust-up about Rick Majerus's comments, about which Michael blogged here, a few thoughts:
Like (I gather) Michael, I don't think, at the end of the day, it's reasonable to expect the President of Saint Louis University to admonish Majerus for expressing views contrary to the (clear) teaching of the Catholic Church. That said, I think it's important to be more clear than many -- at least, the many I've heard discussing the matter on ESPN -- have been about the reasons why, and why not, this is true.
For starters . . . note to Michael Wilbon (of ESPN's "Pardon the Interruption"): This is not a matter of Majerus's "freedom of speech." Even if we put aside the fact that neither Archbishop Burke nor S.L.U. is the government, there is nothing about the "freedom of speech" that means you cannot be criticized in return. Let's move on. . .
Second, perhaps more noteworthy than Majerus's statements about his "pro-choice" views -- what a shocker! some Catholics are wrong about abortion! -- is his later statement, commenting on Archbishop Burke, "He's entitled to his opinion, but I should be entitled to mine." Well, d'uh. The issue is not about who's "entitled" to their opinions. The question -- and it is a tricky one -- is whether it is appopriate for someone in his position -- a professing Catholic, at a Catholic university -- to publicly endorse a position that is contrary to Catholic teaching, thereby effectively using that university as a platform, or as a credibility enhancing credential, in a way that could cause scandal. Majerus is getting a lot of praise for his said-to-be courageous insistence on taking stands for things he believes in. Fair enough. One would hope that some might question the appropriateness of his using his S.L.U. position to convert his views on a controversial position from "a private person's views" to "the views of the Saint Louis University basketball coach."
To be clear, I don't think a university, Catholic or not, can or should expect that none of its faculty or staff, even one as visible as the basketball coach, is ever going to say misguided things. I do not think that a Catholic university -- even one that is serious about its Catholic mission -- should criticize or admonish faculty for saying such things. (One wonders, though, what S.L.U.'s, or ESPN's, reaction would have been had Majerus appeared at a Tom Tancredo rally and complained about immigration, or at a League of the South rally and complained about Emancipation.)
Third, one can think that, at the end of the day, S.L.U. should not directly criticize Majerus for his comments, and also -- see, for example, this comment by my colleague Cathy Kaveny -- that this was a missed opportunity for a different, and perhaps more constructive, response by the Archbishop, without embracing the (silly, I think) view that Majerus's comments are somehow none of the Archbishop's business. Majerus, after all, is a Catholic. It's entirely appropriate, it seems to me, wholly and apart from the question what the University should do, for the Archbishop to use the statements of one of the area's most visible Catholic laypersons as an occasion to remind the Catholics he has been charged -- he believes, by God -- with teaching and pastoring of an important moral truth about the dignity of human life.
Finally, and contrary to what I've seen suggested in some of the sports-blogsphere, the fact that S.L.U. should not directly admonish Majerus for his misguided views does not mean that Catholic universities should not, as a general matter, care about the connection between their mission and identity, on the one hand, and the intellectual life of their faculty and students on the other. It would be unfortunate if the upshot of l'affaire Majerus were that the mistaken view that a Catholic university can only be a "university" if it cordons off the faith from its intellectual life became more accepted.
Judicial Independence?
It has been a busy and exciting week at the OU College of Law on the occasion of our alum Robert Henry’s investiture as Chief Judge of the 10th Circuit. The 10th Circuit has been sitting at OU all week. On Tuesday night four of the judges spent a couple of hours talking with students at a Federalist Society event. Thursday morning Justice Sandra Day O’Connor sat with one panel, and Friday morning our three courtrooms were occupied by separate panels of judges hearing arguments. Thursday afternoon Justice Stephen Breyer gave the annual Henry Lecture (endowed by Robert Henry, his cousin Governor Brad Henry, and the Henry family) and Thursday night after dinner OU President David Boren engaged in a fireside chat (sans the fire) with Justices O’Connor and Breyer.
Judicial independence was stressed by both justices – in the lecture and during the evening discussion.
In the first part of his provocative lecture, Breyer argued that it was the obligation of the people (and their political leaders) to accept the Court’s constitutional rulings even when they disagreed with them. Here he contrasted President Jackson and President Eisenhower, suggesting that we have made “progress” toward this goal of being a people respecting the rule of law defined partly as the law laid down by the Court.
In the second part of his lecture, Breyer discussed the obligation of the Court and used Dred Scott as an example of the Court getting it “wrong, wrong, wrong.” He did not, however, circle back to Part One of his talk to discuss who had the better response to Dred Scott, Lincoln or Douglas. But to be consistent with the conclusions drawn in Part One of the lecture, he would have to side with Douglas unless another rule is operative when the Court doesn’t just get it “wrong” but gets it “wrong, wrong, wrong.”
When judges are acting as judges, I strongly back judicial independence. They need that insulation from outside pressure when making decisions, especially unpopular decisions. But, when the Court gets a constitutional issue not just “wrong” but “wrong, wrong, wrong,” should we, with Douglas, hold ourselves bound by that decision giving it the title Law, or should we, with Lincoln, conclude that the Court’s holding is not binding in the political sphere? What do you think?
Hamilton Hamilton Hamilton Hamilton
I wonder whether the current quest for judicial independence is a quest to insulate the judiciary from an active Lincoln-type (more than mere words) criticism of the Court’s work. To reject complete judicial independence and follow Lincoln (and Hamilton) raises many questions. When should we take action against the Court? Obviously (at least to me), it can’t be when we merely disagree with the Court’s conclusion. Is it anytime the Court writes an opinion that would merit no more than a “C” if written by one of our students? (I can think of several!) Or, is more required? Is it only on those occasions when the Court gets it so wrong that in John Hart Ely’s words (referring to Roe) it is not just bad constitutional law but that it is so bad that it is not law at all? (Or, to use Breyer’s words, when the Court gets it “wrong, wrong, wrong.”) Or, is still more required? Is it only when the Court gets it “wrong, wrong, wrong” and the case is one of those epoch cases like Dred Scott and Roe? And, then, what action should be taken? Do we ignore, as a political matter, the Court’s ruling as Lincoln Lincoln Hamilton
I can understand why judges would try to convince the public that they are entitled to an almost absolute independence. Looking at human nature, the framers assumed that each political power center would attempt to protect and grow its turf, therefore it supplied check and balances. What baffles me is the degree to which Congress has abrogated its responsibility to provide a check on the Court in some fashion at least in those instances where the Court gets it “wrong, wrong, wrong” in an epoch case.
As Justice Breyer continues to explore the web of interlocking relationships in our polity, I hope he will address whether the people (and their representatives) have a right and maybe even a duty to push back against the Court at least when the Court makes a “wrong, wrong, wrong” decision of epoch proportions. After his lecture, Justice Breyer said that he will wrestle with Lincoln
A Mother's Sacrifice
Lorraine Allard died Jan. 18, 2008. After discovering cancer in her liver, Lorraine's doctors encouraged her to abort her unborn child so that she could begin treatment. She refused saying that "If I'm going to die, my baby is going to live." Click here for the article.
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