Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, December 11, 2006

Faith in Iowa Prisons

By Rick Garnett

Michael P. asks "how should we think about" the program discussed in this recent New York Times article.  For what it's worth, I think we should approach the article's account with some care, even skepticism. 

For starters, the title -- "Religion for a Captive Audience" -- seems a bit misleading, since no inmates are required to participate in the "Inner Change" program or others like it.  Second, it strikes me as relevant that the author, Diana B. Henriques, was also a lead contributor to the Times' recent four-part series on religious exemptions.  That series, I think, was seriously flawed, and missed the boat in a number of respects.

Finally, it is true -- as the story mentions -- that the federal-court decision invalidating the Iowa program cited some allegedly anti-Catholic incidents in support of the conclusion that the program violates the First Amendment.  As I argued in this amicus brief, though, the district-court judge went well beyond the facts, and his own expertise, in characterizing the theological content of the program and pronouncing on the views of Evangelicals and Catholics.  For more detail, check out the brief.

This is not to say that, under current constitutional doctrine, all things considered, the court erred in invalidating the program.  But, in my view -- and I'm certainly not one to downplay the reality of anti-Catholicism -- the anti-Catholicism theme in the opinion, and in the news story, is a red herring.

Essentially a Mother

By Rob Vischer

Tennessee law prof Jennifer Hendricks has won the AALS junior scholars paper contest with Essentially a Mother.  From the abstract:

Rather than following existing precedent on parental rights, the law of high-tech parenthood is tending sharply in the direction of denigrating gestation, defining parenthood exclusively in terms of genes or contracts. I show that conferring parental rights on gestational mothers would produce better outcomes and be more consistent with the best aspects of existing constitutional precedents.

Pope Benedict to us jurists

By Patrick McKinley Brennan

Most remarkable in the following, I think, is the unequivocal affirmation that the "moral law" must govern us in our social -- and, therefore, our political -- connections.  Pope Benedict generally avoids the idiom of law to describe the moral order, but when he talks to the jurists, he hits the nail on the head.    

VATICAN CITY, DEC 9, 2006 (VIS) - The Pope today received participants in the 56th national study congress, promoted by the Union of Italian Catholic Jurists, which is being held in Rome on the theme: "Secularity and secularities."

  The concept of secularity, said the Holy Father in his address to the group, originally referred to "the condition of simple faithful Christian, not belonging to the clergy or the religious state. During the Middle Ages it acquired the meaning of opposition between civil authorities and ecclesial hierarchies, and in modern times it has assumed the significance of the exclusion of religion and its symbols from public life by confining them to the private sphere and the individual conscience. In this way, the term secularity has acquired an ideological meaning quite opposite to the one it originally held."

  Secularity today, then, "is understood as a total separation between State and Church, the latter not having any right to intervene in questions concerning the life and behavior of citizens. And such secularity even involves the exclusion of religious symbols from public places." In accordance with this definition, the Pope continued, "today we hear talk of secular thought, secular morals, secular science, secular politics. In fact, at the root of such a concept, is an a-religious view of life, thought and morals; that is, a view in which there is no place for God, for a Mystery that transcends pure reason, for a moral law of absolute value that is valid in all times and situations."

  The Holy Father underlined the need "to create a concept of secularity that, on the one hand, grants God and His moral law, Christ and His Church, their just place in human life at both an individual and a social level, and on the other hand affirms and respects the 'legitimate autonomy of earthly affairs'."

  The Church, the Pope reiterated, cannot intervene in politics, because that would "constitute undue interference." However, "'healthy secularity' means that the State does not consider religion merely as an individual sentiment that can be confined to the private sphere." Rather, it must be "recognized as a ... public presence. This means that all religious confessions (so long as they do not contrast the moral order and are not dangerous to public order) are guaranteed free exercise of their acts of worship."

  Hostility against "any form of political or cultural relevance of religion," and in particular against "any kind of religious symbol in public institutions" is a degenerated form of secularity, said the Holy Father, as is "refusing the Christian community, and those who legitimately represent it, the right to pronounce on the moral problems that today appeal to the conscience of all human beings, particularly of legislators.

  "This," he added, "does not constitute undue interference of the Church in legislative activity, which is the exclusive competence of the State, but the affirmation and the defense of those great values that give meaning to people's lives and safeguard their dignity. These values, even before being Christian, are human, and therefore cannot leave the Church silent and indifferent, when she has the duty firmly to proclaim the truth about man and his destiny."

  The Pope concluded by highlighting the need "to bring people to understand that the moral law God gave us - and that expresses itself in us through the voice of conscience - has the aim not of oppressing us but of freeing us from evil and of making us happy. We must show that without God man is lost, and that the exclusion of religion from social life, and in particular the marginalization of Christianity, undermines the very foundations of human coexistence. Such foundations, indeed, before being of the social and political order, belong to the moral order."

AGAINST COERCION

By Michael Perry

Sightings  12/11/06

Against Coercion
-- Martin E. Marty

Two events this season led me to go back to the Sightings archive, to a column dated October 29, 2001 ("Listening to Lactantius").  Giving evidence of our passion always to be current, we cited Lactantius from the years 302 and 303, because what he wrote then spoke so directly to current affairs.  Incident one here is the flap over new Congressman Keith Ellison of Minnesota, who brought the Qur'an along when he took the oath of office.  Some howled that this was outrageous in this Christian country.  While the use of the Bible at oath-taking time has always been voluntary, never coerced, using any other book, it was said, blasphemes against the God of America and demeans the tradition of godly Americans.

Incident two won't end until December 26, when partisans will begin to gear up for next year's "December Wars," when devotion to Christian Christmas gets upstaged by verbal war-makers.  One side wants Jesus-Christmas to be privileged and officially sanctioned in the "public square."  The other wants a Jesus-free public square.  While tempted to wish a plague on both their houses, I choose to tilt, by reference to Lactantius, for a theological angle and one side.

The public can fight over whether there is or is not enough Jesus-Christmas in the department stores, the malls, the corridors.  A half hour in such places should move one to pity the clerks who have usually sappy versions of Jesus-Christmas songs bombarding their ears all day, depriving them and their customers of any chance to experience awe and wonder.  Some in the public, and many in the opinion-world, however, want Jesus-Christmas to be privileged in the official public space and in the times that belong to the whole public.  If we do not "coerce" the Jesus-presence, it is asked, how can American tradition survive?  Is not all this a shunning of God?

Enter Lactantius, anticipator of James Madison, 1,400 years in the offing.  Both of them, wrote Robert Louis Wilken, had a "religious understanding of religious freedom."  Wilken also quoted the Vatican II bishops who preached "that the response of people to God in faith should be voluntary ....  In matters of religion every manner of coercion on the part of men should be excluded."  And then Lactantius -- the "first Western thinker to adumbrate a theory of religious freedom rooted not in notions about toleration but in the nature of religious belief."

Those who wanted Congressman Ellison to be a hypocrite, or to deprive him of his scripture, usually profess to seek sincerity in religion and attachment to sacred books, even if his was the "wrong one."  It's not mine.  And coercing people to be obeisant to a god in whom they do not believe would, in Lactantius's terms, be "inimical to the nature of religion."  The man of 302-303 asked, "Why should a god love a person who does not feel love in return?"  Scholar Elizabeth DePalma Digeser cites Lactantius: "Those who strive to defend religion with force make a deity appear weak."  And anyone who lacks the requisite inner conviction is "useless to God."

Those who have confidence in a "strong God," one who loves to be loved freely and not by coercion, no matter how light and how slight the weight of its force, will let Mr. Ellison vow as he chooses and will not impose Jesus on others.

References:
Elizabeth DePalma Digeser, The Making of a Christian Empire: Lactantius and Rome (Cornell, 2000); Robert Louis Wilken, "In Defense of Constantine," First Things (April 2001), http://www.leaderu.com/ftissues/ft0104/articles/wilken.html.

----------

Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

Sunday, December 10, 2006

Globalization and Catholic--or Is It Bangladeshi?--Social Thought

By Michael Perry

New York Times
December 10, 2006

Nobel Winner Warns of Dangers of Globalization
By WALTER GIBBS

OSLO, Dec. 10 — The Bangladeshi banker Muhammad Yunus, who invented the practice of making small, unsecured loans to the poor, warned today that the globalized economy was becoming a dangerous “free-for-all highway.”

“Its lanes will be taken over by the giant trucks from powerful economies,” Dr. Yunus said during a lavish ceremony at which he was awarded the 2006 Nobel Peace Prize. “Bangladeshi rickshaws will be thrown off the highway.”

While international companies motivated by profit may be crucial in addressing global poverty, he said, nations must also cultivate grassroots enterprises and the human impulse to do good.

Challenging economic theories that he learned as a Ph.D. student at Vanderbilt University, in Nashville in the 1970s, he said glorification of the entrepreneurial spirit has led to “one-dimensional human beings” motivated only by profit.

Dr. Yunus, 66, then took a direct jibe at the United States for its war on terror, telling about 1,000 dignitaries at Oslo’s City Hall that recent American military campaigns in Iraq and elsewhere had diverted global resources and attention from a more pressing project: halving worldwide poverty by 2015, as envisaged by the United Nations six years ago.

“Never in human history had such a bold goal been adopted by the entire world in one voice, one that specified time and size,” he said. “But then came Sept. 11 and the Iraq war, and suddenly the world became derailed from the pursuit of this dream.”

He said terrorism cannot be defeated militarily and the concept of peace requires broadening. “Peace should be understood in a human way, in a broad social, political and economic way,” Dr. Yunus said.

[To read the whole article, click here.]

The Mystery of Love

By Michael Perry

The Mystery of Love.  This PBS documentary, to be broadcast this Wednesday evening, looks to be well worth making time to watch.  Click here to read a piece about the documentary that was published in yesterday's New York Times.  Click here to go to the website for the show.

An Advent Reflection and a Word that Begins with “F”

By Robert John Araujo, SJ

In beginning this essay, I would like the readers to know that I’ll be addressing the “f” word that is so integral to this season. Some readers might be shocked by this introduction and what they have concluded about a word that begins with the letter "f." I have a suspicion that this introductory remark has triggered an arousal of curiosity. Why? Most likely because the reader’s attention would likely be fixed on the letter that appears in quotation marks. What, in God’s name could Araujo be up to by juxtaposing the holy season we now celebrate with that word. A bit more explanation is most assuredly in order.

The word some readers may have in mind connotes to many something harsh, vulgar, or profane. This reaction is largely a function of the culture in which we live. So, if the culture influences one’s thinking, it would seem that my reference is to this coarse word. But, what if I really had another word in mind—as I do in this case—and that word is: fidelity? Clearly, the reaction ought to be different. Catholics, in the exercise of their fidelity, are called to evangelize the culture; however, often the opposite is the case. Over the recent past there have been a number of MOJ postings on the issue of sexual orientation within the context of marriage. Michael P’s article that he just kindly posted examines several important dimensions of this issue in a Constitutional context. Earlier this year, attention was drawn to the Theological Studies articles by Stephen Pope, on the one hand, and by Todd Salzman and Michael Lawler, on the other. The latter two authors present a theory of “reconstructed complementarity” in their analysis and apparent critique of the Church’s teachings. Of course, it may well be that Professors Salzman and Lawler, in addition to Professor Pope, are faithful to the Church’s teachings about marriage. And their arguments, to the contrary, may well be intended to provoke discussion and a counter-critique to the views of those advocates and scholars who do believe that same sex unions are permissible under the law—both the Church’s and civil society’s. In short, it could well be that these three authors, in fact, remain faithful to the Church’s teachings that marriage is an exclusive union between one man and one woman but they wish to engage the arguments of those with different views on the matter. In the meantime, I wonder what advocates for same sex unions/marriages, who now principally advance their positions from arguments of equality (and equal protection of the law) and autonomy/self-determination (Planned Parenthood v. Casey) will say—if anything—to those who rely on their arguments as they contend for the right to marriage with multiple partners or something else. Are they not entitled to equality and autonomy, too?

Fidelity to the views of the Church is something to which I adhere out of an exercise of my free will. I have been critiqued before for this fidelity, and I suspect that I will be in the future—perhaps sooner than I would like. But faithful I shall strive to remain to what the Church teaches in a clear and thoughtful manner. I pray to be more like Mary, a prominent figure in the Church’s Advent celebration, who said, “I am the servant of the Lord…” Like others, we have been called to reform the culture as servants of the Lord; in contrast, we have not been asked by Him to be reformed by it. Fidelity, as Mary demonstrated, is a wonderful and extraordinary calling: fidelity to noble purposes; fidelity to the law that is just in the eyes of God; fidelity to one’s spouse and one’s family; fidelity to the Church; and, fidelity to God. I am aware that I may be critiqued by others who would argue that my position is a fundamentalist one. I am particularly conscious of the possibility of critique after recently watching some of the web archived discussions of the “Beyond Belief” symposia that took place last month. One commentator, Sam Harris, had this to say about religion and religious believers and their influence on society:

“The problem is not that religious people are stupid; it’s not that religious fundamentalists are stupid. You can be so well educated that you can build a nuclear bomb and still believe that you can get 72 virgins in paradise. The problem is that religion, because it has been sheltered from criticism in the ways that it has been, allows perfectly sane, perfectly intelligent people to believe, en masse, things that only idiots or lunatics could believe in isolation. If you wake up tomorrow morning convinced that saying a few Latin words over your breakfast cereal is literally going to turn it into the body of Julius Caesar, or Elvis, you have lost your mind. [Laughter from the audience is heard] But if you believe that a cracker becomes the body of Jesus at the mass, you’re very likely to be perfectly sane; you just happen to be Catholic.  But the beliefs really are equivalent, and they’re equivalently crazy. We do not respect stupidity in this country, but we systematically respect religious stupidity.”

In spite of this blistering criticism directed toward them by influential members of society who possess and exercise a powerful authority over its culture, many of the faithful labor to preserve their fidelity to God and His Church. I pray to remain in this latter group’s company and have made this a part of my ongoing Advent reflection and supplication.   RJA sj

Saturday, December 9, 2006

How Should We Think About This?

By Michael Perry

New York Times
December 10, 2006

Religion for Captive Audiences, With Taxpayers Footing the Bill

By DIANA B. HENRIQUES and  ANDREW LEHREN

Life was different in Unit E at the state prison outside Newton, Iowa.

The toilets and sinks — white porcelain ones, like at home — were in a separate bathroom with partitions for privacy. In many Iowa prisons, metal toilet-and-sink combinations squat beside the bunks, to be used without privacy, a few feet from cellmates.

The cells in Unit E had real wooden doors and doorknobs, with locks. More books and computers were available, and inmates were kept busy with classes, chores, music practice and discussions. There were occasional movies and events with live bands and real-world food, like pizza or sandwiches from Subway. Best of all, there were opportunities to see loved ones in an environment quieter and more intimate than the typical visiting rooms.

But the only way an inmate could qualify for this kinder mutation of prison life was to enter an intensely religious rehabilitation program and satisfy the evangelical Christians running it that he was making acceptable spiritual progress. The program — which grew from a project started in 1997 at a Texas prison with the support of George W. Bush, who was governor at the time — says on its Web site that it seeks “to ‘cure’ prisoners by identifying sin as the root of their problems” and showing inmates “how God can heal them permanently, if they turn from their sinful past.”

One Roman Catholic inmate, Michael A. Bauer, left the program after a year, mostly because he felt the program staff and volunteers were hostile toward his faith.

“My No. 1 reason for leaving the program was that I personally felt spiritually crushed,” he testified at a court hearing last year. “I just didn’t feel good about where I was and what was going on.”

For Robert W. Pratt, chief judge of the federal courts in the Southern District of Iowa, this all added up to an unconstitutional use of taxpayer money for religious indoctrination, as he ruled in June in a lawsuit challenging the arrangement.

The Iowa prison program is not unique. Since 2000, courts have cited more than a dozen programs for having unconstitutionally used taxpayer money to pay for religious activities or evangelism aimed at prisoners, recovering addicts, job seekers, teenagers and children.

Nevertheless, the programs are proliferating.

[Read on, here.]

Friday, December 8, 2006

More on Mary: Some Quotes and a Poem

By Elizabeth Schiltz

With apologies in advance to all the theologians, I just want to add another thought from a non-theologian trying to make sense of Mariology in general, and, especially today, of the Doctrine of the Immaculate Conception.  I'm currently trying to work through a collection of writings by Pope Benedict XVI and von Balthasar gathered in Mary:  Church at the Source for a reading group formed out of last June's meeting of Catholic legal scholars at Fordham.  The richness and depth of the ideas suggested by these readings is overwhelming.  Quoting Newman:  "When once we have mastered the idea that Mary bore, suckled, and handled the Eternal in the form of a child, what limit is conceivable to the rush and flood of thoughts which such a doctrine involves?"  I probably should have started with Michael S.'s recommendation, The Complete Idiot's Guide to Mary of Nazareth, but I didn't...

What is emerging from my reading, though, is the emphasis that both Benedict and von Balthasar place on the theological significance of Mary's "Yes" to God (and the doctrine of the Immaculate Conception) for both Christology and ecclesiology.  The probably much more accessible essays offered by Rob and Rick both made the same point about the significance of the Immaculate Conception that Benedict makes in the book I'm reading: 

Without this free consent on Mary's part, God cannot become man.  To be sure, Mary's Yes is wholly grace.  The dogma of Mary's freedom from original sin is at bottom meant solely to show that it is not a human being who sets the redemption in motion by her power; rather, her Yes is contained wholly within the primacy and priority of divine love, which already embraces her before she is born.  "All is grace."  Yet grace does not cancel freedom;  it creates it.  The entire mystery of redemption is present in this narrative and becomes concentrated in the figure of the Virgin Mary:  "Behold, I am the handmaid of the Lord; let it be to me according to your word" (Lk 1:30).

Von Balthasar addresses the Christological significance of the Doctrine: 

As Christ's mother, Mary seems to enjoy a prius that no one else can equal.  But let us not forget that she got this prius, not from her physiological motherhood taken in isolation, but from her total personal attitude of faith as perfect readiness to serve.  And where does she get this faith if not from the grace that God communicates to the world thorugh the work of Jesus Christ?  Mary is, then, as much redeemed as everyone else is, only in a special way grounded in her mission to become the Mother of Jesus.  She is 'pre-redeemed' so that she can give birth to the Redeemer.

And Benedict addresses its ecclesiological significance:

At the moment when she pronounces her Yes, Mary is Israel in person; she is the Church in person and as a person.  She is the personal concretization of the Church because her Fiat makes her the bodily Mother of the Lord.  But this biological fact is a theological reality, because it realizes the deepest spiritual content of the covenant that God intended to make with Israel.

And, in a wonderful essay on the encyclical Redemptoris Mater, Benedict expands on the significance of Mary's maternity to the birth of the Church:

"...Mary's maternity is not simply a uniquely occuring biological event;  . . . she was and, therefore, also remains a mother with her whole person.  This becomes concrete on the day of Pentecost, at the moment of the Church's birth from the Holy Spirit:  Mary is in the midst of the praying community that becomes the Church thanks to the coming of the Spirit.  The correspondence between Jesus' Incarnation by the power of the Spirit in Nazareth and the birth of the Church at Pentecost is unmistakable.  'The person who unites the two moments is Mary."

So many quotes (I apologize), but the point I am trying to make is simple -- the Doctrine of the Immaculate Conception is, I think, as significant for making sense of the possibility of the birth of the Church as it is for making sense of the possibility of the birth of Jesus.

Theologians are probably cringing at the mash I'm making of this, so let me try to atone by sharing a favorite poem about Mary, by Rainer Maria Rilke.  Yes, I know, its title refers to a different Marian feast day, but it's still relevant (and beautiful).

The Annunciation

Not the angel entering frightened her

(take note of this).  However little others

startled at a sunbeam or the moon at night

peering into their room, she was

filled with indignation

at the form in which the angel

came; she scarcely knew

that such a sojourn for angels required effort.

(Oh, if we knew how pure she was.

Did not a hind lying in a forest once glimpse her, unable to take its eyes off her

so that, without pairing, a unicorn was conceived,

a creature made of light, the purest of creatures.)

Not his entering, but that he,

an angel with a young man's face,

bent closely down to her; that his gaze

and her raised eyes collided

as if suddenly outside all were empty,

and what millions saw, did, carried,

cramped into the two of them: just she and he;

looking and looked at, eye and feast for the eyes

nowhere but here at this point:  behold,

this frightens.  And they were both frightened.

Then the Angel sang his song.

Lisa

Same-Sex Unions and the Fourteenth Amendment

By Michael Perry

Michael Scaperlanda and some other MOJ-afficianados may be interested in this paper, which I just posted to SSRN.  To download/print/read, click here.

     
The Fourteenth Amendment, Same-Sex Unions, and the Supreme Court

MICHAEL J. PERRY
Emory University School of Law
       
Loyola University Chicago Law Journal, Vol. 38, p. 101, 2006
 

ABSTRACT:

On March 31, 2006, I was privileged to deliver the Keynote Address at the Symposium on "The Legal and Constitutional Issues Presented by Same-Sex Relationships," sponsored by the Loyola University Chicago Law Journal. This Essay, which is forthcoming in the Loyola University Chicago Law Journal, was the basis of my Keynote Address and draws on material in my new book, Toward a Theory of Human Rights: Religion, Law, Courts (Cambridge University Press, 2007). I explain in this Essay why I conclude that the Fourteenth Amendment requires states to recognize, by extending the benefit of law to, same-sex unions. (I am inclined to think that we are all "originalists" now; in any event, my explanation presupposes an originalist conception of constitutional interpretation.) I also explain, however, why my conclusion does not entail that the Supreme Court should rule that states are required to recognize same-sex unions. Along the way, I suggest that it would be much more problematic for the Court, in the name of the Fourteenth Amendment, to require states to recognize same-sex unions than it was for the Court in 1967, in Loving v. Virginia, to require states to recognize interracial marriages.

This Essay is part of a larger project, the point of departure of which is the following: Whether a law (or other policy) is unconstitutional is one question; whether the Supreme Court (in an appropriate case) should rule that the law is unconstitutional is a different question. Contemporary constitutional theorists are virtually unanimous in ignoring the analytic space between the two questions. That a law is unconstitutional does not entail that the Supreme Court should rule that the law is unconstitutional.

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