Here is a link to Sen. Kaine's op-ed in which he contends that Judge Gorsuch, if confirmed to the Supreme Court, "jeopardizes women's rights." As we were told often, during the campaign, Sen. Kaine is a practicing, educated, well formed Catholic, and so it is surprising and disappointing that he would, in his piece, present the very idea of "complicity" as if it were something exotic or troubling. Put aside disagreements about the Court's application of the RFRA in Hobby Lobby and put aside also questions one might have about the religious objections raised in that case or in the Little Sisters litigation. Kaine writes:
"All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others."
"The wrongdoing of others"? Who are these "others," and what did they do wrong? They are the women who work for Hobby Lobby, and their "wrongdoing" was their desire to make their own choices about using contraception.
Moral questions of complicity in others' behavior had nothing to do with the legal question in this case. The only legal issue was whether the owner's beliefs about contraception conflicted with the ACA. So Judge Gorsuch's decision to inject his own editorial comment about women's "wrongdoing" was an insulting characterization of a personal choice protected by the law. His two uses of the phrase "all of us" also suggest that he was making a point far broader than what the parties to the case had presented to him.
But, of course "[m]oral questions of complicity in others' behavior had . . . to do with the legal question in this case." The entire point of both sets of cases was that the RFRA claimants objected, for reasons they described as religiously-informed moral reasons, to being required by the coverage mandate to be complicit in what they regarded as wrong. (Indeed, probably the leading -- even if, to me, unconvincing -- academic criticism of Hobby Lobby focuses precisely on the dangers the authors see in incorporating "complicity" into religious-freedom law.) I understand, certainly, that Sen. Kaine (and, probably, most people) do not think that, in fact, the conduct in question is "wrongdoing" but that "ha[s] nothing to do with the legal question in [the] case[s]." (This response by Kaine to a fact-checker reflects a similar mistake.)
That's the title of a new piece by Timothy Stoltzfuss Jost in Commonweal. The subtitle: "Where Are the Lawmakers of Faith?" Tim, who is Mennonite, is Robert L. Willett Family Professor of Law at Washington and Lee University School of Law. I recommend Tim's piece (here) to all MOJ readers. I was privileged to be Tim's colleague during 1981-82, which was my final year at Ohio State (before heading off to Northwestern for a fifteen-year stint) and Tim's first year there.
Intervarsity Press has published a promising new book, "Restoring the Soul of the University," in which the authors insist that "Christian universities can recover their soul―but to do so will require reimagining excellence in a time of exile, placing the liberating arts before the liberal arts, and focusing on the worship, love, and knowledge of God as central to the university." (HT: TaxProf) Since I haven't read the book, I can't guarantee that the authors -- Perry Glanzer, Nathan Alleman, and Todd Ream -- offer big ideas that haven't been proposed by previous contributors to this genre. Even if the same basic insights repeat themselves, though, I think the insights gain new depth and nuance depending on the context in which they're offered. In this case, the context is promising for at least three reasons: 1) the authors are affiliated with Baylor, a university that has experienced turmoil stemming from its efforts to reclaim a robust Christian identity and (more recently) achieve prominence in college sports; 2) the book is coming out in the wake of an election in which white evangelicals propelled to victory a presidential candidate who was dismissive of the sort of intellectual pursuits embodied by the very idea of a university, Christian or not; and 3) over the past few years, American universities have become significantly less hospitable to claims rooted in traditional Christian morality, particularly around issues of sexuality.
Here's a quote from the authors that suggests they appreciate the scope of the challenge:
We think Christians should be romantic realists. Our love for God and faith and hope in God should lead us to be optimistic about the creative and redemptive work in which we are involved.
In our own research, we continually find inspiring examples taking hold around the world. For example, African Christians have created more institutions of higher education in the past two decades than the rest of the world combined. Not surprisingly, this growth happened when various African nation-states dropped their monopolies on higher education. Christian higher education tends to prosper when freedom for civil society flourishes as well.
Yet, since we recognize the sinful tendency in humanity to repress and reduce educational freedom, we also want to be realists. Throughout history, powerful political forces have sought to deform and destroy Christian higher education. Whether it involved the leaders of the French Revolution and Napoleonic wars who helped terminate one-third of Europe’s universities, the leaders of nation-states who appropriated and nationalized Jesuit universities in the 19th century, or the communists who took over whole university systems in the 20th century, politicians seeking domination have often destroyed diverse university systems (and with it, religious universities) to promote their ideological agenda. We thus pray for wisdom and strength for individuals and institutions that currently face those pressures, which could one day include those in North America.
King's College philosophy prof Bernard Prusak has put together an interesting symposium on the ethics of cooperation and the Affordable Care Act's contraceptive mandate. He has provided an overview of the contributions by three philosophers and a theologian:
[T]he three philosophers all reject the claim that giving HHS notice of opposition to the provision of contraceptives amounts to impermissible cooperation in wrongdoing. By contrast, Kate Ward [the theologian] concedes that “it is reasonable to regard even so seemingly insignificant an act as signing a document as formal cooperation in offering birth control to employees,” but the focus of her contribution is different: after observing that “determining whether an act is or is not cooperation is not sufficient for determining how one should proceed” and that “cooperation reminds us of the world’s moral complexity and the impossibility of avoiding any contact with evil,” she goes on to evaluate the Little Sisters’ case as an act of protest.
That's the title of the book by Cathleen Kaveny that was published one year ago this month (Harvard University Press). Professor Kaveny is the Darald and Juliet Libby Professor at Boston College, where she holds a joint appointment (School of Law, Department of Theology).
On Friday, April 7, 1:30-5:00 PM, at the McMullen Museum of Art, 201 Commonwealth Avenue, Boston, there will be a program, focused on Professor Kaveny's book, entitled "Prophecy Without Contempt: A Conversation About Religion, Identity, and Exclusion in Our New Political Era". The three speakers are an extraordinarily impressive group: Jonathan Lear, John U. Nef Distinguished Service Professor, Committee on Social Thought and Department of Philosophy, University of Chicago; Charles Taylor, Professor Emeritus, Department of Philosophy, McGill University; and Rowan Williams, 104th Archbishop of Cantebury and Master of Magdalene College, University of Cambridge. Professor Kaveny will respond. The program is presented by The Clough Center for the Study of Constitutional Democracy, Boston College.
With the helpful guidance of Richard Reinsch's Brownson anthology, I have lately begun trying to understand the constitutional thought of Orestes Brownson. I am interested in the nature of our Union, and Brownson promises to be very helpful in arriving at clearer thinking on that topic.
Through something of a roundabout way, I recently found myself reading Brownson's 1843 oration at Dartmouth College, "The Scholar's Mission." This mission, he says, is nothing less than "INSTRUCTING AND INSPIRING MANKIND FOR THE ACCOMPLISHMENT OF THEIR DESTINY."
It seems to remain a matter of some dispute what the precise source of JFK's "ask not" exhortation may have been. Some hear echoes of an Oliver Wendell Holmes Jr. speech, and others of Warren G. Harding. Yet another possibility identified by others is this Brownson oration. It includes the exhortation: "Ask not what your age wants, but what it needs; not what it will reward, but what, without which, it cannot be saved; and that go and do, do it well; do it thoroughly; and find your reward in the consciousness of having done your duty, and above all in the reflection that you have been accounted worthy to suffer somewhat for mankind."
So argues Thomas Groome in today's New York Times. He writes:
By tradition and by our church’s teaching on social justice, many Catholics could readily return to voting reliably Democratic. But for this to happen, their moral concerns regarding abortion must get a hearing within the party, rather than being summarily dismissed. How might that happen?
To begin with, Democratic politicians should publicly acknowledge that abortion is an issue of profound moral and religious concern. As a candidate, Barack Obama did just that in a 2008 interview, saying, “Those who diminish the moral elements of the decision aren’t expressing the full reality of it.”
Democrats should not threaten to repeal the Hyde Amendment, which forbids federal funds to be used for abortion except in extreme circumstances. They could also champion an aggressive program to promote adoption by strengthening the Adoption Assistance Act of 1980 and streamlining adoption procedures. The regulations in many states seem designed to discourage it.
Democratic politicians should also continue to frame their efforts to improve health and social services as a way to decrease abortions. The abortion rate dropped 21 percent from 2009 to 2014. That downward trend would most likely end if Republicans eliminate contraception services provided through the Affordable Care Act.
As I see it, these called-for developments -- while they would be welcome -- would not really do much to change the minds of those who regard, perhaps with regret, the Democratic Party as "the Abortion Party." The first proposal -- "acknowledge that abortion is a matter of profound . . . concern" -- is obviously sound, but it need not be accompanied by any changes in platform or policy. The second -- don't repeal the Hyde Amendment -- is also welcome, but it really involves simply maintaining a 40-year status quo. And the final one -- "continue to frame efforts" -- is about messaging, not policy. It seems to me that what could make a difference (but is very unlikely to happen, given the political givens) would be if the Democrats decided that their positions on abortion should roughly track those of the population as a whole.
The Court heard oral arguments today in a case that has very important religious-freedom and church-state dimensions and implications but has "flown under the radar" in the public conversation. As SCOTUSblog describes, "Advocate Health Care Network v. Stapleton (consolidated with two other related cases), . . . asks whether the Employee Retirement Income Security Act’s exemption for church plans applies to pension plans maintained by church-affiliated organizations." Here is the brief of the USCCB, which is well worth a read.
A few days ago, John Gehring, of "Faith in Public Life," wrote a kind of "what I saw behind the scenes" piece about a "conservative Catholic gathering in DC's Trump Tower." Among other things, the piece offered what was characterized as an account of some remarks by my friend and colleague, Carter Snead, who directs the Notre Dame Center for Ethics & Culture. Based on Gehring's account, Gary Caruso -- who works in the Department of Homeland Security and who has a regular column in The Observer (the student-run newspaper at the University of Notre Dame) -- wrote a critical, indeed more-than-a-little snarky attack on what he called the "near-sighted vision" of the Center.
As regular MOJ readers might remember, I'm a huge fan of the Center's work on campus and beyond. The annual Fall Conference the Center puts on is one of the highlights of the academic year. And, it turns out -- as Snead carefully and charitably sets out here -- that Gehring's account, and Caruso's attack, were misleading and misguided. Snead concludes with this: "We welcome everyone of good will who shares our love of civil discourse, Notre Dame, the Church and its much-needed countercultural teachings on human dignity and the common good."
