This welcome comes late -- after Steve's first post -- but it's worth extending anyway: Welcome, to MOJ, to Professor Steve Shiffrin (Cornell), a prominent First Amendment and church-state scholar and someone who has been, since we started this blog, an engaged and stimulating correspondent and comment-er.
Friday, November 25, 2005
Welcome to Steve Shiffrin
Are Universities Obsolete?
One of the most-often-discussed topics here at "Mirror of Justice" is the nature, future, and function of Catholic universities. So, I thought this reflection, "The Modern University Has Become Obsolete," might be of interest.
Wednesday, November 23, 2005
Another Disappointed Voice
I've been depressed all day about the Vatican's latest statement on homosexuality and the priesthood, perhaps more so because I somehow let myself become convinced the document was not going to be as bad as people were worried it might be.
Although I share the lack of understanding of what it means to be a supporter of "gay culture" that others have expressed, what really troubles me is the exclusion of those with "deeply rooted homosexual tendencies." There is no question that so long as celibacy is a requirement of the priesthood (whether it should or should not be is a different debate), that all candidates who appear incapable of living a celibate lifestyle - heterosexual or homosexual - must be excluded. But to categorically exclude, as the statement appears to, all persons with a homosexual orientation, regardless of their ability to live a celibate life, is difficult for me to reconcile with the Church's recognitions in earlier statements that homosexual orientation is innate and ought not be a ground for discrimination.
I suspect we have all known gay priest who live and have lived their lives faithful to their vows and to the teachings of the Church. We will all suffer the loss of such men in the future.
Persons with "homosexual tendencies" in the priesthood
The recent statement of the Congregation for Catholic Education presumably
was welcome for most, but by no means all, Catholic conservatives. I,
no conservative, find it disturbing. At the outset there are questions
about the nature of what is referred to as the "so-called homosexual
culture," about the apparently assumed link between
homosexuality and pedophilia, about what the statement says to gay
priests particularly those who have always been faithful to their vows,
the impact of the policy on the availability of the Eucharist (assuming
prospective applicants are truthful), and the extent to which the
policy might encourage dissembling at the outset of a priest's career
(a culture of careerism at higher levels by hiding one's views has been
remarked upon by Richard McCormick).
I pass over the question of the extent of deference that is owed to the
position taken by Church leaders (albeit rejected by many Catholic
theologians) on the immorality of same sex relations between committed
couples. I will simply say that I was heartened by a recent NCR
article,
http://natcath.org/NCR_Online/archives2/2005d/111105/111105m.php (subscription may be required)
He is concerned about
helping gays
“live with a profound spirituality,” I regret that the Congregation's
recent statement will be read to deny that gays can live such lives. It
will be read alongside the statement of the Congregation for the
Doctrine of the Faith maintaining that gays and lesbians should not be
able to adopt children because of their "disordered condition." The
latter statement was issued when its moral authority to speak about the
care of children was at a low ebb.
I understand the views of those who believe statements such as these
reinforce the moral authority of the Church because of its integrity,
consistency, and unwillingness to blow with the winds. But, if I am
right, the Holy Spirit will keep those winds blowing.
My thanks to Rick and Michael for encouraging me to join the site and
to Mark for issuing the invitation. I have been an engaged lurker for
some time.
Steve
Gay Seminarians
Count me among those who are profoundly confused, disappointed, and alienated by the Vatican's latest foray into the question of homosexuality. Having read the document, here are a small subset of the questions it raises.
(1) Given the requirement of celibacy, what is it that makes "deep rooted homosexual tendencies" more troubling for candidates than any other deeply rooted sexual drives?
(2) Is there some evidence, unmentioned in the document, that people with such "homosexual tendencies" are more likely to break their vows than people with deeply rooted heterosexual tendencies? If so, why isn't the evidence referenced? (In fairness, I'd be skeptical of the evidence if offered, but none is.)
(3) How are we supposed to resolve the tension between the Vatican's statement that people with deeply rooted homosexual tendencies are to "avoid every mark of unjust discrimination with respect to them" followed by a document whose sole purpose is apparently to impose such status-based discrimination in its treatment of applicants to the seminary?
(4) What in the world does it mean to be a "support[er]" of "gay culture"?
(5) What exactly is the relationship between the timing of this document and the pedophilia scandal? (If the lesson the Church has learned from that scandal is that we need fewer gay priests, I'd say we're in for many more scandals to come.)
(6) Does a gay priest who breaks his vows cause any more scandal to the faithful than a priest who, say, carries on an illicit relationship with a female parishioner?
(7) How, as a practical matter, is a bishop to distinguish between someone with "transitory" homosexual inclinations and "deep rooted" tendencies?
(8) Presumably, those who "support the so-called gay culture" includes a number of straight seminarians who disagree with Church teaching on homosexuality. What other ethical teachings are elevated to such a level that disagreement with the official Church teaching categorically disqualifies a candidate for the priesthood?
(9) Given the serious threat this document ascribes to gay priests, why is this document limited to gay seminarians (as opposed to gay priests already ordained)?
(10) What is the connection between the document's treatment of homosexuals and its discussion, early in the document, of the priest's role as sacramental representation of Christ? Is this a suggestion that those with "deep rooted homosexual tendencies" cannot perform such a role (in the same way that the Church uses this role -- one that is problematic for any number of scriptural and theological reasons -- to categorically exclude women from the priesthood)?
Signs of the Apocalypse Dep't
Check out this story, "The Problem with an Almost Perfect Genetic World," in a recent issue of the New York Times:
MIA PETERSON is not a fan of tests. Because she has Down syndrome, she says, she cannot always think as fast as she would like to and tests end up making her feel judged. A recent driving test, for instance, ended in frustration.
Ms. Peterson, 31, the chief of self-advocacy for the National Down Syndrome Society, prefers public speaking and travel. And her test aversion extends to the latest one designed to detect Down in a fetus. "I don't want to think like we're being judged against," Ms. Peterson said. "Not meeting their expectations."
Heralded in the Nov. 10 issue of The New England Journal of Medicine, the new prenatal test provides earlier, more reliable results for all women than the current test, which is routinely offered to only older women who are at higher risk. But for people with Down syndrome and the cluster of other conditions subject to prenatal screening, the new test comes with a certain chill.
Because such tests often lead to abortions, people with conditions from mental disability to cystic fibrosis may find their numbers dwindling. As a result, some fear, their lives may become harder just as they are winning the fight for greater inclusion.
"We're trying to make a place for ourselves in society at a time when science is trying to remove at least some of us," said Andrew Imparato, president of the American Association of People With Disabilities, who suffers from bipolar disorder. "For me, it's very scary."
Some bioethicists envision a dystopia where parents who choose to forgo genetic testing are shunned, or their children are denied insurance. Parents and people with disabilities fear they may simply be more lonely. And less money may be devoted to cures and education. . . .
Rick
Anti-religious Admissions Standards?
This recent New York Times article, "University Is Accused of Bias Against Christian Schools," reports that, according to one evangelical Christian family:
[California's] public university system, which has 10 campuses, discriminates against students from evangelical Christian schools, especially faith-based ones like Calvary Chapel Christian School in Murrieta, where [Cody] Young is a senior.
Mr. Young, five other Calvary students, the school and the Association of Christian Schools International, which represents 4,000 religious schools, sued the University of California in the summer, accusing it of "viewpoint discrimination" and unfair admission standards that violate the free speech and religious rights of evangelical Christians.
The suit, scheduled for a hearing on Dec. 12 in Federal District Court in Los Angeles, says many of Calvary's best students are at a disadvantage when they apply to the university because admissions officials have refused to certify several of the school's courses on literature, history, social studies and science that use curriculums and textbooks with a Christian viewpoint.
There is more -- check it out. It strikes me that Charles Haynes gets it about right:
Charles C. Haynes, a senior scholar at the First Amendment Center at the Freedom Forum, which studies press and religious freedom, said the university was sending a chilling message to religious schools. "If you have to clean up your religious act to get courses accepted, that's a problem," said Mr. Haynes, who has reviewed the long complaint.
Discussing the university, he said: "They certainly have a right to say the student needs to take foundational courses. That's fair. But when you get into the business of saying how a particular subject is taught or if it has too much of a religious overlay, then I think you are crossing a line."
Rick
PRE-THANKSGIVING COMMENTS ON CAPITAL PUNSIHMENT
Thanks to Rick, Tom, and Patrick for their comments.
This is what I have learned from
E. Christian Brugger, who wrote his book—Capital
Punishment and Roman Catholic Moral Tradition (Notre Dame, 2003)--under the
watchful eye of no less a master than John Finnis.
1. The traditional position of the Roman Catholic Church has been that one
may never intentionally kill an *innocent* human being.
2. John Paul II’s position was more radical: One may never intentionally kill a human being. The “innocent” has dropped out.
3. Why may one never intentionally kill any human being (according to John Paul)? Because to do so is to act contrary to the charity we are called to have for every human being.
5. The Church’s (i.e., the magisterium’s) position on capital punishment is in a state of transition—and, as it now stands, is incoherent. The
Catechism tells us that the state may use capital punishment only if
necessary to do so for reasons of self-defense. Why incoherent? Because to engage in a legitimate act of self-defense is never intentionally to kill a human being, but to execute a criminal is always intentionally to kill a human being.
As I said, this is what I learned
from Brugger’s book. I wish that Rick,
Patrick, Tom, and I—and anyone else interested—could read the book together in
a discussion group. What a fruitful
discussion that would be!
As Rick knows, my own views on
capital punishment do not presuppose that John Paul was right in his belief
that one may never intentionally kill a human being. But that’s a story for another day.
Finally, about the retributive
theory of punishment. I stand by what I
said in my earlier posting. Having read
Patrick’s posting, it seems that I stand with Michael Moore on this.
But let’s move past that point to
the following inquiry: I assume that
Rick and Patrick do not believe that the retributive theory of punishment could
justify torturing a criminal (i.e., torturing him as punishment, not as a
method of interrogation). Why, then,
should we think that the retributive theory could justify executing a criminal? Is it because torturing him necessarily
violates his inherent dignity but executing him does not? (If so, it would seem that the inherent
dignity of every human being is a limit on what would otherwise be justifiable
according to the retributive theory, yes?) But why does executing him not violate his inherent dignity?
Rick’s suggestion (in an e-mail to
me) is this: “[An adequate]
justification [for capital punishment is] supplied by the need to communicate
adequately the magnitude of [the convict’s] wrong and to redress the disorder
caused by his offense.” But I suspect
that few of us would agree that of the available punishments for even the most
depraved crimes, only capital punishment
can “communicate adequately the magnitude of the wrong and redress the disorder
caused by the offense.” Have all the
jurisdictions that have forsaken capital punishment—Michigan,
for example, or England—thereby
forsaken their only means of
communicating adequately the magnitude of the wrong and of redressing the
disorder caused by the offense? Is that
a plausioble position? Is it plausible
to believe that the only way to restore the disorder caused by some heinous
murders is by killing—executing—the murderers? Isn’t it at least as plausible to believe that killing the murderers obscures the magnitude of the wrong they
did rather than communicates it, by obscuring the value of human life—of every human life? That is the position of the United States
Conference of Catholic Bishops in their recent statement of opposition to the
death penalty.
So, I agree with Michael Moore and
disagree with Rick and Patrick on the retributive theory of punishment. But even if I were to agree with Rick and
Patrick on that issue, I would still disagree with their claim that the retributive
theory of punishment can justify capital punishment. I agree with the bishops' (implicit) claim, in their recent statement, that it cannot.
(Only my friends will appreciate
the irony of my defending the bishops against Rick and Patrick.)
Happy Thanksgiving!
Michael
More on "gay culture"
I'm still looking for guidance on what the Vatican means in its statement that individuals cannot be admitted to seminary if they "support the so-called gay culture." Amy Welborn offers this:
[W]hen it comes to guidelines, as reasonable as it might seem to do the "no homosexuals in the seminary thing," it doesn't get at the problem. The problem is not, in simple terms, the homosexual priest. The problem is priests who don't believe what the Catholic Church teaches on sexuality, who don't preach it, who don't witness to it in the confessional, and who don't live it in their private lives. . . .
I've already heard lots of little snide remarks and questions about the "gay culture" aspect of the document. Well, this is an attempt to get at what I'm talking about, and to me, the whole thing would be far simpler if the document simply emphasized that a candidate for priesthood is indicating his sense that he is being called to minister to God's people as a Catholic priest. Brilliant. Which means that when it comes to this foundational revelation of what the creation of man and woman as man and woman implies, symbolizes and concretizes - they are on board. Completely. And they will embrace what the Church teaches, will teach it themselves, and will commit to helping, with compassion and understanding, Catholics live this out themselves. Again, brilliant.
I guess I have trouble seeing how targeting "gay culture" does the trick. Maybe I'm missing the nuance because I don't have a firm enough grounding in moral theology, but I see the Vatican providing more fodder for those who wish to caricature the Church's teachings on sexuality as driven in large part by anti-gay prejudice and fear. The question remains, in my mind, why not focus on celibacy? Why not focus on the "sexually permissive culture," instead of the "gay culture?"
Rob
Religion, Division, and the Constitution
I have posted a new paper, "Religion, Division, and the Constitution," on SSRN (it's forthcoming in the Georgetown Law Journal). Here is the abstract:
Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state programs or policies could “excessive[ly]” – and, therefore, unconstitutionally – “entangle” government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions and activities, but also through what he called their “divisive political potential.” Chief Justice Burger asserted also, and more fundamentally, that “political division along religious lines was one of the principal evils against which the First Amendment was intended to protect.” And from this Hobbesian premise about the “inten[t]” animating the First Amendment, he proceeded on the assumption that the Constitution authorizes those charged with its interpretation to protect our “normal political process” from a particular kind of strife and to purge a particular kind of disagreement from politics and public conversations about how best to achieve the common good.
This Article provides a close and critical examination of the argument that observations or predictions of “political division along religious lines” should supply the content, or inform the interpretation and application, of the Religion Clause. The examination is timely, not only because of the sharp polarization that is said to characterize contemporary politics, but also because of the increasing prominence of this “political division” argument.
The inquiry and analysis that follow have empirical, doctrinal, and normative components: What, exactly, is “religiously based social conflict” – or, as the Court put it in Lemon, “political . . . divisiveness on religious lines”? What, exactly, is the relevance of such conflict to the wisdom, morality, or constitutionality of state action? How plausible, and how normatively attractive, are the political-divisiveness argument and the “principle” it is intended to vindicate? How well do this argument and this principle cohere with the relevant text, history, traditions, and values? And what does the recent resurfacing of this argument in the Religion Clause context reveal and portend about the state and trajectory of First Amendment theory and doctrine more generally?
Working through these questions, I am mindful of John Courtney Murray’s warning that we should “cherish only modest expectations with regard to the solution of the problem of religious pluralism and civic unity,” and also of his observations that “pluralism [is] the native condition of American society” and the unity toward which Americans have aspired is a “unity of a limited order.” Those who crafted our Constitution believed that both authentic freedom and effective government could be secured through checks and balances, rather than standardization, and by harnessing, rather than homogenizing, the messiness of democracy. It is both misguided and quixotic, then, to employ the First Amendment to smooth out the bumps and divisions that are an unavoidable part of the political life of a diverse and free people.
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