Over the past several months a new responsibility has garnered a great deal of my attention and daily efforts. However, I have done my best to remain alert to trends in society and the law that have some bearing on Catholic Legal Theory. Other contributors to MOJ have, needless to say, done well in pointing out various developments in law and society that bear in relevant ways on the core project of Mirror of Justice. I have let several opportunities to comment on some of these trends pass because my attention and energies had to be focused on other matters.
But, the time has come once again to offer some reflections on evolving conflicts between members of society and the state that emerge as a result of different understandings of human nature involving religious liberty and freedom of conscience. While I have offered my own commentary on these issues in past MOJ postings, I took the occasion last May to analogize these conflicts as trains traveling on the same track in opposite directions [HERE]. The trains are back on the same track and once again racing toward one another, this time in Lexington, Massachusetts. Yes, the place in which the shot heard round the world was fired.
The controversy, for the time being, is between the several families of Lexington and the public school system of that town. The families have objected to the school system’s mandate to teach, in a positive manner, about homosexuality and to the school system’s declaration that parents have no right to object and ask that their children be exempt from this instruction. If I recall correctly, back some decades ago when prayer at school events was the issue, the suggestion was previously made that objecting families could simply not attend the particular event. However, this eventually led to the Supreme Court’s decision in Lee v. Weisman (1992) in which prayer at a school event was a crucial issue. In the case involving the Lexington families, representatives of the school system have stated that the teaching in question is obligatory and that the only option is for the parents to withdraw their children from the public school system. Again, this theme of withdrawal from obligatory events was a theme briefly addressed in Lee v. Weisman. Unlike that case, however, where attendance at the graduation exercise where the non-sectarian prayer was to be offered was not obligatory to receive an education and graduate (daily prayers in school having been abolished earlier), attendance at school to receive an education and to graduate is obligatory.
It appears that much of the Lexington controversy emerged from the mandatory “diversity training” in which first and second graders read and listened to the story “King and King” and “Who’s in a Family”—two publications with very strong same-sex love stories. Representatives of the school system have argued that this diversity training is essential to a “legitimate state interest” that combats discrimination “on the basis of sexual orientation” and eliminates the perpetuation of stereotypes. These officials have also insisted that parents have no right to control the ideas that schools expose to their children once the children enroll in these public institutions.
Through their counsel, the parents involved in this case, Parker, et al. v. Town of Lexington, et al., No. 06-CV-10751-MLV, USDC, District of Massachusetts, have argued that they “have the right to direct the moral upbringing of their children.” Surely their claim can be substantiated on the relevant international legal right of parents to which the United States is obliged to follow since it is a party to the International Covenant on Civil and Political Rights. Article 18.4 of the Covenant specifies that, “The States Parties to the present Covenant undertake to have respect for the liberty of parents… to ensure the religious and moral education of their children in conformity with their own convictions.” The Covenant is based on the Universal Declaration of Human Rights which, in Article 26.3, specifies that parents “have a prior right to choose the kind of education that shall be given to their children.” As the travaux prèparatoires of the UDHR indicate, this provision came about to avoid and eliminate the attempt of the National Socialists in Germany to poison children’s minds through the unqualified state control of education. It would appear that the Lexington school system, by the position it has taken, is trying to do that which the Universal Declaration and the International Covenant on Civil and Political Rights forbid.
In the context of Catholic Legal Theory, we need to take stock of the fact that Pius XI in two of his encyclicals, Non Abbiamo Bisongno (1931) and Mit Brenneder Sorge (1937), expressed his concern about the totalitarian efforts of the state to control the educational process of children in Italy and Germany. For those of us interested in Catholic Legal Theory, we must be conscious of the concerns raised by Papa Ratti over seventy years ago. We might think that the day of the totalitarian state in which Pius XI lived is over. But, is it? The evidence from the Parker case might suggest otherwise.
In the coming weeks, I will be addressing some of these issues in more detail. On March 15, I shall be delivering a lecture at Boston College Law School entitled Regensburg and Beyond: Pope Benedict and Religious Liberty. I will also be delivering a paper, Conscience, Religious Liberty, and Totalitarian State at the conference on The American Experiment: Religious Freedom convened by the University of Portland from April 12-14.
In the meantime, the Parker case merits close attention as the trains once again head toward collision. And for those of us concerned about Catholic Legal Theory, religious liberty and the protection of conscience and parental rights, the work of our minds and the efforts of our prayers will surely be in order. RJA sj
Monday, February 19, 2007
"A Crisis of the Truth About Man"
Interview With Monsignor Mariano Fazio
Zenit.org).- A crisis in anthropology is at the root of the present trend of secularization, says the rector of the Pontifical University of the Holy Cross.
ZENIT interviewed Monsignor Mariano Fazio, who recently wrote "Historia de las ideas contemporáneas. Una lectura del roceso de secularización" (History of Contemporary Ideas: A Reading of the Process of Secularization), published by Rialp.
Monsignor Fazio is a professor of the history of political doctrines at the university and the author of various philosophical and historical works.
Q: Is secularization necessarily a negative process?
Monsignor Fazio: The book's thesis consists in affirming that there are two processes of secularization: a strong one, which is identified with the affirmation of man's absolute autonomy, cutting off any relationship with a transcendent authority.
From a Christian perspective -- though not only from a Christian perspective, but also from an anthropological one -- this is a very negative process, as the human person cannot be understood without his openness to the transcendent.
However, there is another process of secularization, which I have called "de-clericalization," which consists in the awareness of the relative autonomy of the temporal, which I judge to be profoundly Christian.
The distinction -- not the radical separation -- must be established between the natural and the supernatural order, and between political and spiritual powers. In other words, there must be coherence with "Give to Caesar what is Caesar's and to God what is God's."
If the first process could be identified with laicism, the second would be the affirmation of secularity.
Q: Your book on contemporary ideas seems to identify the latter with Western culture. Is this so?
Monsignor Fazio: I believe Western culture cannot be understood without Christianity. The two processes mentioned above spell a direct relationship with the presence of the Christian religion in the history of our societies.
It isn't possible to speak of Voltaire, Nietzsche or Marx without their position on Christian revelation. In this connection, secularization is characteristic of a culture of Christian origin, as is the Western. In other cultures there have been different processes, and the elements of secularization taking place in Asia or Africa have a Western origin.
Q: Liberalism, nationalism, Marxism and the scientific spirit are, according to you, "substitute religions." Is it unthinkable that they coexist with religion?
Monsignor Fazio: The ideologies that characterized the 19th and 20th centuries pretended to be complete explanations of man and his destiny.
In this sense they are incompatible with religions, which also attempt to give a total explanation of the world.
However, the ideologies mentioned in the book are not identical to one another, and there are some toned-down versions of them which are not so radically opposed to religion.
In my book I attempt to tone down the presentation of ideologies, though I criticize clearly the reductive anthropologies that are at their base.
Q: The contemporary world continues to be in a state of crisis. Is it basically an anthropological crisis?
Monsignor Fazio: I am convinced that the present crisis is a crisis of the truth about man; hence the insistence of Popes John Paul II and Benedict XVI to trust the power of reason, which can arrive at objective and normative truths.
I believe that John Paul II's magisterium can be presented as an attempt to make manifest the beauty of the truth about man. Truth can be known -- "Fides et Ratio"; it can be lived -- "Veritatis Splendor"; and it must be spread -- "Redemptoris Missio."
The present Pope is making a great effort to have us discover the natural law, which sheds light on the main problems of contemporary culture: family, life, peace, intercultural dialogue, etc.
ROME, FEB. 19, 2007 (
The average Wheaton College student might struggle to recognize Boston College or Brandeis as meaningfully religious institutions. Nevertheless, Alan Wolfe argues:
[E]vangelical colleges have much to learn from Catholic universities such as Boston College (BC) or the Jewish Brandeis. Each of these schools worries about losing its religious identity, since each has become remarkably successful, and success brings with it faculty and students who at BC have never been to mass and at Brandeis read their e-mail on Yom Kippur. For those who grew up in a world of strong religious attachments, the increasing religious diversity at BC or Brandeis represents a serious loss of community. Yet both BC and Brandeis recognize that in today's world, religion has gone from being an ascribed status to an achieved one; more and more Americans choose their religious identity rather than having it chosen for them.
In today's world, religious diversity is a fact of life, and the only choice for a college or university grounded in one faith is to open its doors to others. No doubt it will, in the process, lose some of the communal understandings that once informed it. But it will gain in return a religious identity made stronger by being exposed to, and having to defend itself against, other claims to truth, wisdom, justice, or the spirit. The community protected by faith statements at evangelical colleges can be a stifling one because it is so closed to challenge and disagreement.
Over at Touchstone, David Mills responds.
I just read Rob’s posting on the Scottish National Health Service’s action regarding the elimination of discriminatory language. I should like to see the entire text. I wonder if they will also remove language that discriminates among doctors, nurses, technicians, office staff, patients, vendors, visitors, and chaplains. It strikes me that offering patients different types of treatment based on their medical condition, even though warranted, is discriminatory, too. I don’t know how the National Health Service will handle the person who has no relatives, partners, friends, family, etc.—in other words, someone with absolutely no relations with any other human being. Sounds like more discrimination. Perhaps the National Health Service should concentrate on providing good medical service and rather than engage in attempting to engineer human nature. RJA sj
A paper of interest at MOJ:
"Why the Catholic Majority on the Supreme Court May Be
Unconstitutional"
University of North Carolina Legal Studies Research Paper
No. 960410
University of St. Thomas Law Journal, Vol. 4, 2007
Contact: MICHAEL J. GERHARDT
University of North Carolina at Chapel Hill -
School of Law
Email: [email protected]
Auth-Page: http://ssrn.com/author=509049
Full Text: http://ssrn.com/abstract=960410
ABSTRACT: In this essay, Professor Michael Gerhardt ponders two
possible problems with how presidents may have assembled the
current Catholic majority on the Supreme Court. The first is that
they may have unwittingly demonstrated their agreement with
social scientists who believe that neither the rule of law nor
Supreme Court precedent constrain justices, and the second is
that they may have violated constitutional prohibitions on
religious tests for federal office. After showing how both these
problems may have occurred, Gerhardt demonstrates how they were
avoidable at the time the current majority was assembled and in
future judicial selection.
