I agree with Michael S. that sex is a fundamental component of the human person, and thus a fundamental component of Catholic legal theory. But I'm not sure I would go so far as to say that "[r]eflecting on the design of our bodies, our radical incompleteness, our intense desire (especially in males) to “use” another’s body to satisfy our own needs, and a whole host of related topics can offer insight into the origin and nature of community, the need for rules (and hence the need for promulgators of rules) to govern behaviour, the origins and nature of government and other governing structures (the corporation, etc.)."
Here's the tension, in my view: Our need for law derives in significant part from our fallen condition. We are selfish and we need rules to rein in our selfishness. But the ideal for sexuality (the lifelong coupling of a man and woman) is not in response to our selfishness, but to our incompleteness. Adam and Eve did not need the criminal law in the Garden of Eden, but they still needed each other. Corporate management does not need to face punishment for self-dealing because they are incomplete, but because they are selfish. An authentic view of sexuality allows us to transcend our selfishness; law accounts for our selfishness. I totally agree that our understanding of the human person must include an articulation of human sexuality. But I'm still not sure how far the articulation of human sexuality gets us toward a comprehensive theory of law.
Obama's Religious
Challenge -- Jerome Eric Copulsky
[Jerome Eric Copulsky is Director and Assistant
Professor of Judaic Studies at Virginia Tech.]
Last Friday, Barack Obama, the
charismatic junior senator from Illinois and possible Democratic presidential
hopeful, made news by speaking at an AIDS conference at Rick Warren's Saddleback
Church, one of the flagships of contemporary evangelicalism. To an
audience of more than 2,000 evangelical leaders, the senator spoke movingly of
his experiences in Africa, and set forth his vision for AIDS prevention and care
in terms shaped decidedly by his Christian faith. Although Obama received
a standing ovation, his invitation to Saddleback was met with hostility by some
conservative Christians, who rebuked Warren for sharing his pulpit with a
supporter of abortion rights.
Senator Obama's appearance at one of the
most "mega" of American megachurches and his emphasis on his own religious
convictions is not surprising. Back in June, in a spirited address to
"Call to Renewal," a progressive faith-based movement, Obama testified to his
own conversion and faith. Complaining that for too long Democrats have
been uncomfortable with the conversation about religion, "fearful of offending
anyone" or "dismiss[ing] religion in the public square as inherently irrational
or intolerant," Obama called for progressives "to acknowledge the power of faith
in people's lives," and to "join a serious debate about how to reconcile faith
with our modern, pluralistic democracy."
Some Democrats hailed Obama's
eloquent display of his faith. Others sharply criticized the senator for
giving credence to Republican allegations that the Democrats are allergic to
religion, or condemned him for pandering to the prejudices of the religious
right, or claimed he was undermining the Democrats' commitment to secular
governance.
Such praise and condemnation do not get to the heart of
the matter. The question is not whether religious motivations are
considered licit in the public sphere. The question is: How does one use
religious arguments in the to-and-fro of democratic deliberation and policy
formation? And it is here that the senator powerfully illuminates the
Democrats', and liberalism's, religion problem.
After recognizing
the "crucial role" that the separation of church and state has played in
defending American democracy and fostering the vitality of religious practice,
Obama remarked, "Democracy demands that the religiously motivated translate
their concerns into universal, rather than religion-specific, values. It
requires that their proposals be subject to argument, and amenable to reason
.... Politics depends on our ability to persuade each other of common aims
based on a common reality."
Obama rehearses a classic modern liberal
stratagem to grapple with the persistence of competing "comprehensive theories"
or conceptions of "the good": All preferences must be "translated" into a
universal, rational idiom if they are to compete in the public square. The
invitation to take part in political life is extended to "the religiously
motivated," so long as they are willing and able to explain their particular
views in terms accessible to those who don't share their revelation or
insight. They may not have to "leave their religion at the door," but they
will have to bring a translator along with them.
This sort of
translation, however, is no easy feat. If one maintains that his religion
is universal, he may not see how his values are to be regarded as merely
"religion-specific." How do you translate into secular terms religious
truths that are not accessible to unassisted or unreformed human reason?
If faith has the transformative effect that Obama and others claim that it does,
wouldn't some reasons be opaque to those whose hearts have not yet been
turned? Who determines the "common reality" that we all share?
Indeed, the very notion of a "religiously neutral" common reality is subject to
serious contention.
While Obama rightly stresses the political virtue
of compromise, appealing to a shared rationality and the necessity of
compromises may alleviate, but will not solve, the problems that religion raises
for politics. Indeed, Obama's speech exposes the fundamental tension
between certain kinds of religious faith and a serious commitment to the untidy
practice and inevitable compromises of political life, particularly in an
increasingly pluralistic, liberal democracy.
Yet, Obama helps us remember
that the distinction that we need to be aware of is not between religious and
secular Americans, but between those who believe that political life will
require certain concessions and those who have contempt for Enlightenment
principles such as religious liberty upon which this nation is founded, who see
democratic procedures as only the means by which to impress their vision of the
common good on the rest of the country. This is a distinction between
different kinds of religious attitudes, which does not conform to a simple
distinction between religious conservatives and religious
liberals.
Democrats don't need to get more religion; they need to
learn more about it. They can present their positions in moral terms,
without feeling compelled to cite chapter and verse or make appeals to what
Jesus would do. They should know that being more comfortable employing
religious language or making public confessions of faith will not persuade those
who are already otherwise convinced. And they should recognize that,
despite their best efforts, they will still have to contend with their less
scrupulous opponents denouncing them as "godless."
Obama, whose
appearance before the evangelicals received both applause and fierce
condemnations, already knows this.
References: Senator Obama's
"Call to Renewal" keynote address can be found here:
http://obama.senate.gov/speech/060628-call_to_renewal_keynote_address/index.html. His remarks at the 2006 Global Summit on AIDS and the Church at the Saddleback
Church Campus can be found here:
http://obama.senate.gov/speech/061201-race_against_time_-_world_aids_day_speech/index.html.
----------
Sightings comes from the Martin Marty Center at the
University of Chicago Divinity School.
In the past, I've blogged about the situation in the Darfur region of the Sudan, mentioning the ongoing work of the Catholic Workers movement to draw attention to the genocide occurring there. About ten days ago, Susan Stabile posted a message from a Mirror of Justice reader wondering what we, as ordinary Americans, can do and expressing the frustration that many of us feel in seeking an effective response. The following message should provide some hope and a means of providing concrete assistance to those who are suffering and to restoration of security in the region.
Professor Ellen Kennedy of the University of St. Thomas in St. Paul sent this message to faculty colleagues, with the heading: "Genocide Intervention Network - A Christmas Story":
Colleagues,
I want to tell you a Christmas story that will warm your hearts – and perhaps motivate you to make a difference in the world.
As you probably know, we have a campus chapter of the Genocide Intervention Network. GI-Net is an organization that has over 600 chapters throughout the country and an international presence; its mission is to educate about genocide, advocate with elected officials and other leaders for a non-violent resolution to conflict, and raise funds to protect those whose lives are at risk. At present the focus is the genocide occurring in Darfur, Sudan. Over 400,000 people have been killed and more than 2.5 million people have been displaced from their homes and villages.
The Student Advisory Board of our chapter has launched a “Ten for Ten” campaign this holiday season. Instead of receiving gifts this year, they are all asking ten of their family and friends to donate $10 each to the national GI-Net office. The national office has raised over $250,000 to assist the limited African Union peacekeeping troops with non-weapons-based support in Darfur. And of those ten, our students also hope that at least one will ‘pay it forward’ to ask another ten to give their support.
These students have made a commitment to lend a hand, to raise their voices, and to take a stand for the people in Darfur who are dying at a rate of more than five hundred every single day. These students are ordinary Midwest kids – but they’ve realized that the words ‘never again,’ uttered after the Holocaust, have rung hollow. They are committed to making ‘never again’ mean ‘never.’
Will you join them in this effort? Your tax-deductible contribution to the Genocide Intervention Network (a registered 501-C3; tax ID number 20-2278405) will help African Union troops to protect women and children against gender-based violence in Darfur.
Please participate with our students in the spirit of giving with the most precious of gifts – the gift of safety. You can send your donation to the Genocide Intervention Network, 1333 H Street NW, Washington, DC 20005, and note that it’s part of the “Ten for Ten” campaign. If it’s more convenient, you can send it to me at Mail MCH 316 at UST and I’ll send it on to Washington.
With best wishes for the holidays,
Ellen
For more information about the national organization, please see
www.genocideintervention.net
MOJ-friend Chris Eberle and I, along with Notre Dame philosophy prof Robert Audi and Arizona philosophy prof Gerald Gaus, will be discussing "Religious Commitment in Liberal Democracy" at the annual meeting of the American Philosophical Association (Eastern Division) later this month. Details below (lifted from Larry Solum's Legal Theory Blog):
December 05, 2006
Program Annoucement: Religious Commitment at the APA Eastern Division
One of many programs at the APA Eastern Division that may be of interest:
Thursday Afternoon, December 28 Session III – 2:00-5:00 p.m.
III-A. Symposium: Religious Commitment in Liberal Democracy 2:00-5:00 p.m.
Chair: Robert Audi (University of Notre Dame)
Speakers:
Michael Perry (Emory University)
Gerald Gaus (University of Arizona)
Commentator: Chris Eberle (United States Naval Academy)
It’s never too early for a blog endorsement. University of
California, Los Angeles, public policy professor Mark Kleiman, who
writes at The Reality-Based Community, pledges his support for Barack
Obama in the 2008 Democratic presidential race. His reasoning: Obama’s well-received speech at Rick Warren’s megachurch. Kleiman writes:
I’m well known to be a Wesley Clark fan. If Clark runs in 2008, I
wouldn’t expect him to make the rookie mistakes that cost him so much
in 2004. And his national security cred would be a huge plus. Compared
to a Dukakis, a Gore, a Kerry, or a Hillary Clinton, he’s way more
culturally Red-compatible. But I can’t see him getting a standing
ovation at a conservative megachurch after talking about condoms. I’ve
heard him talk about the importance of faith, and I don’t doubt he’s
sincere. But he sounds like (I don’t say he is, but he sounds like)
someone who believes in religion. Obama, with the Bible in his
cadences, sounds like (I don’t say he is, but he sounds like) someone
who believes in God.
Kleiman also thinks secular Democrats need to focus more on their
preferred policies and less on their preferred theological positions.
He writes:
For all Obama’s excellent policy-wonkery, that sort of language, and
thinking, makes him far more strange to me than Wesley Clark is. But it
makes him far more familiar and far more comfortable to tens of
millions of people whose votes we need. As long as we elect a President
who shares my policy preferences (and has the personal integrity,
intelligence, judgment, energy, sense of humor, and intellectual
humility needed to do the job), I don’t much care whether we elect a
President who shares my metaphysics.
Once again, the Lumen Christi Institute and the Law Professors Christian Fellowship are co-sponsoring a conference to be held in tandem with the AALS annual meeting. This year's "Conference on Christian Legal Thought" looks great. Here's the (MOJ-heavy!) line-up:
Modesty and the Limits of Law
David Skeel, University of Pennsylvania School of Law Robert Cochran, Pepperdine University School of Law Helen Alvare, Catholic University of America School of Law John Breen, Loyola University Chicago School of Law
Law and Christian Feminism
Elizabeth Schiltz, University of St. Thomas School of Law Susan Stabile, St. John University School of Law Marie Failinger, Hamline University School of Law
Christian Legal Scholars and Scholarship
Kenneth Starr, Pepperdine University School of Law Patrick Brennan, Villanova University School of Law
More information on times, dates, location, and registration is available here.
Last March, Cardinal William Joseph Levada, head of the Vatican's Congregation for the Doctrine of the Faith, issued a directive to the Archdiocese of San Francisco's social service agencies, instructing them to stop placing children in need of adoption with homosexual households. This led San Francisco's Board of Supervisors to pass a resolution calling for the Cardinal to withdraw his directive. The resolution said that it is "an insult to all San Franciscans when a foreign country, like the Vatican, meddles with and attempts to negatively influence this great City's existing and established customs and traditions such as the right of same-sex couples to adopt and care for children in need." Upset with that resolution, a Catholic civil rights group sued San Francisco, claiming that the resolution violates the Establishment Clause. The suit asked the court to enjoin the Board of Supervisors from criticizing and attacking religion and religious beliefs. (See prior postings 1, 2.)
On Thursday, in Catholic League for Religious and Civil Rights v. City and County of San Francisco,2006 U.S. Dist. LEXIS 86698 (ND CA, Nov. 30, 2006), relying in particular on a 2002 Ninth Circuit decision, a California federal district court dismissed the claim against the Board of Supervisors, finding that the Supervisors' Resolution has a secular purpose and effect. It also rejected the claim that the resolution constitutes excessive entanglement, saying that "it is merely the exercise of free speech rights by duly elected office holders."
This is a bit late, but . . . the Supreme Court declined to review a "dispute over a Maine law that bars the use of public funds to send students to private religious schools." The discriminatory treatment of religious schools and parents who choose them continues. Sigh.
Catholic legal theory needs to account for the rule of law and the extent to which extralegal values have a role to play in adjudication. Over at Balkinization, Brian Tamanaha dissects Judge Posner's vision of "pragmatic adjudication," as outlined in a recent debate with Brian Leiter, as a threat to the rule of law. In his writing, Judge Posner has argued that the duty of judges is "always [to] try to do the best they can do for the present and the future, unchecked by any felt duty to secure consistency in principle with what other officials have done in the past." Here's an excerpt from Tamanaha's critique:
My argument is that Posner’s descriptive claim is wrong: most judges strive to come up with the best—the strongest—legal outcome as dictated by the applicable rules. They do this whether the legal rules are clear or complicated and uncertain. When no strongest legal answer exists, which does happen, they may well try to figure out the most reasonable result in the manner that Posner suggests (what else can they do?). Of course, rule-bound judges still pay attention to results and consequences. When the outcome dictated by the rules is extremely unpalatable, they will struggle with the law to avoid this result. This does not change the fact that their overarching orientation is to try to figure out what the law requires, and to duly comply. This orientation is essential to a rule of law system.
This, too, is a realistic view of judging. Like Posner, I am a pragmatist. And my argument is that, for pragmatic reasons, owing to the harmful consequences to the rule of law that will follow from adopting Posner’s approach, judges should reject his pragmatic adjudication. . . .
The danger is this: if people within and outside the legal culture succumb to his view that judges already in fact decide cases in this manner, and should decide cases in this manner, more and more judges will begin to reason in this fashion. Then his descriptive claim will be correct, and, I fear, we will discover the untoward consequences of his prescriptive claim.
On this final point, the dialogue between Judge Posner and Professor Leiter was worrisome for another reason. It was an event sponsored by the Federalist Society at the University of Chicago Law School. Yet this group, explicitly dedicated to promoting the appointment of judges who commit themselves to follow the law, hardly challenged his ideas, which are fundamentally antithetical to this objective.
There's a long post over at my home blog on the emerging phenomenon of workplace chaplains. I ponder whether (a) it's a good diea from a business perspective and (b) whether there are significant liability risks, especially with respect to religious harassment claims. In short, yes and yes.
