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, November 7, 2005

Scalia, the Church, and Moral Quietism: A Response to Tom

By Rick Garnett

Like Tom, I think that several of Justice Scalia's arguments in his Pew Forum speech (which I remember well, in part because I was present at the event) are not convincing.  (In particular, I think that Justice Scalia's argument that if the death penalty is immoral, Catholics must resign from the bench, is quite weak).  And, I agree with Tom that the Church should not stay its teaching hand -- on a matter where the Church has a clear message to impart and that is not so technical or fact-bound that the Church's leaders probably lack the necessary expertise or competence  -- simply because most people (or even most Catholics) will disagree.  Tom continues:

[T]he very fact that the Pope didn't claim his anti-death-penalty exhortations were formally binding is all the more reason, it seems to me, to encourage them as moral statements.  The Pope took a moral stand and invited others to join him on that path solely on the basis of his arguments, without suggesting that those arguments were ecclesiastically binding.   

Justice Scalia's logic seemed to be that unless the Church is ready to label a public moral issue as one of those very few that are foundational or non-negotiable, then it should make no moral statements at all on the issue that would be politically unpopular (and thus "imprudent").  I always found that to be a strikingly extreme position of Christian timidity (and probably -- though theologians can correct me on this -- a degraded notion of "prudence").

I largely agree, but do have these concerns:  "Non-binding" moral arguments, made by bishops who are (Catholics believe) the successors to the Apostles and charged by Christ with teaching and guarding the faith, are (I worry) likely to be (a) misunderstood by those who hear them as "pronouncements" or "dictates", or (b) misused by Bishops (and bishops' conferences) seeking to promote a particular policy position by exploiting their position and moral authority, or (c) misused by those who happen to agree with the arguments, but couldn't care less about the Bishops and their teaching role.  These are not reasons for "quietism", but they are reasons (it seems to me) for caution.

Catholic law schools

By Richard Myers

Thanks to Father Araujo and Amy for their insightful reflections on this topic. I want to make a brief comment prompted by Amy's thoughts. 

I have mentioned this before when we have had these discussions. I think the place to start is with Ex Corde Ecclesiae. (I disagree with Tom Shaffer about this. I think Ex Corde and the lengthy debate about its implementation played an enormous role in stimulating discussion about the nature of Catholic universities and law schools. I think that Ex Corde has thus far largely failed to change the direction of most Catholic insitutions.)

The orientation provided by Ex Corde is critical. The first universities were "born from the heart of the Church." Law schools that want to be a part of this great and noble tradition ought to view themselves as Catholic insitutions. They do not inhabit some space between the Church and the world of (secular) legal education. As a Catholic institution, a Catholic law school ought to be an "authentic human community animated by the spirit of Christ."

I am increasingly of the view that the presence of a Catholic community is really essential. We tend to focus on the curriculum and this is certainly of great importance. It is important to have a jurispridence class where students can learn about the natural law tradition. It is important, we believe, to make a more systematic attempt to bring the richness of the Church's reflections on law and morality to bear on every course we teach. But, it is not enough that a student has an opportunity to learn something about the Catholic intellectual tradition or that the student has the opportunity to attend Mass. (Princeton is not a Catholic school just because Robby George is on its faculty; the University of Illinois is not a Catholic school because the Newman Center there has Mass several times a day.) The institution itself needs to be Catholic. I think it is really important that the institution has a rich liturgical life. Here at Ave Maria, we have a Mass of the Holy Spirit to begin the academic year. We have a Respect Life Mass in October. We have Mass three times a day and Eucharistic Adoration, etc., etc. These things are not on the periphery of the school, although they are obviously optional. It is important that the students see that faculty participate in these activities. I remember how important it was to me in college to have professors who took their Christian faith seriously. It sends a message that is most likely more powerful than our words when the students see their professors trying to integrate faith and reason in their professional work and trying, certainly imperfectly, to live out their faith in their family life and in everything else they do.

In order to have a Catholic community that sends these messages, the law school must have more than a critical mass of Catholics, if that is meant in the sense described in Grutter and Gratz. There must be a majority of Catholics on the faculty, and most likely in the student body as well. This should not be exclusive. One of the more interesting things to me about our short history here at Ave Maria is that we have attracted a relatively large number of Mormons. They are as enthusiastic about our mission as the Catholics. I think, and they have said this many times, that the Mormon students appreciate the links we try to draw between faith and reason and law and morality, and that they enjoy the community here (even though they don't obviously share fully in the liturgical life) and especially the community's support for family life.

Richard

         

          

The Rise of Identity-Based Jurisprudence (?)

By Rob Vischer

Today's Washington Post has an article on the coming Catholic Supreme Court, containing a complaint from the Feminist Majority Foundation that non-Catholics and non-believers are now underrepresented on the Court.  This is, of course, a dangerously silly perspective on the Court, but doesn't this complaint make a certain degree of sense given the current public discourse?  After all, President Bush himself advertised the relevance of Harriet Miers' religion to her nomination, and Tom DeLay's successful recusal motion in his criminal case simply takes the President's Miers defense to the next outlandish step.  In the Post article, Gerry Bradley may further this trend with his comment about the Catholic justices' "moral traditionalism, a position which is surely in line with their Catholic faith and which they hold, I should think, at least partly due to their faith."  And USC poli sci prof Howard Gillman also comments that many conservative Catholics went into the legal profession "because they felt the constitutional jurisprudence of the country was not reflecting their values," and that he thinks we're "seeing the fruits of those efforts now."

Am I overstating this trend of legal instrumentalism effectuated through judicial identity?  (Dennis Hutchinson, for example, is quoted in the article for the notion that judicial ideology trumps church doctrine.)  If the trend is real, does it simply represent the overdue articulation of the fact that judicial identity has driven jurisprudence all along, or have the culture wars brought us to a new, starker stage of identity-based jurisprudence?

Rob

The Sullivan/Scalia Position in Favor of Moral Quietism

By Thomas Berg

I agree with Rick that Andrew Sullivan is over the top in his blog post attacking Catholic leaders for taking moral stands and applying them to public officials is over the top -- including Sullivan's warning that such stands "unwittingly breathing new life into anti-Catholic prejudice, and new force behind the exclusion of Catholics from public life in a pluralist democracy."

Interestingly, though, Justice Scalia made a similar argument to Sullivan's in his Pew Forum speech on the death penalty a few years ago, criticizing the Pope and bishops for taking a stand against the death penalty:

I do not think it would be a good thing if American Catholics running for legislative office had to oppose the death penalty. Most of them would not be elected. If American Catholics running for governor had to promise commutation of all death sentences, most of them would never reach the governor’s mansion. I do not think it would be a good thing if American Catholics were ineligible to go on the bench in all jurisdictions imposing the death penalty, if American Catholics were subject to recusal when called for jury duty in capital cases.

I find it ironic that the church’s new, albeit non-binding, position on the death penalty, which if accepted would have these disastrous consequences, is said to rest upon, of all things, prudential consideration. Is it prudent when one is not certain enough about the point to proclaim it as an article of faith – and with good reason given the long and consistent Christian tradition to the contrary? Is it prudent to effectively urge the retirement of Catholics from public life in a country where the federal government and 38 of the states, comprising about 85 percent of the population, believe the death penalty is sometimes just and appropriate?

Now I acknowledge that Justice Scalia's argument is that when you are changing the historic position, and not yet willing to call the change a bedrock requirement, then you should consider these "prudential" factors.  But the very fact that the Pope didn't claim his anti-death-penalty exhortations were formally binding is all the more reason, it seems to me, to encourage them as moral statements.  The Pope took a moral stand and invited others to join him on that path solely on the basis of his arguments, without suggesting that those arguments were ecclesiastically binding.   

Justice Scalia's logic seemed to be that unless the Church is ready to label a public moral issue as one of those very few that are foundational or non-negotiable, then it should make no moral statements at all on the issue that would be politically unpopular (and thus "imprudent").  I always found that to be a strikingly extreme position of Christian timidity (and probably -- though theologians can correct me on this -- a degraded notion of "prudence").  I'm surprised that more conservatives didn't criticize him for the argument; it seems to me that people let their substantive support for the death penalty (and for Justice Scalia overall) obscure the implication of his position.

Tom

Schmitt Lecture on Cloning and Truth-Telling

By Rick Garnett

My colleague, Carter Snead (formerly General Counsel to the President's Council on Bioethics), is giving this year's Schmitt Lecture, sponsored by the Notre Dame Center for Ethics and Culture, at 4 pm in McKenna Hall at Notre Dame.  Here is more info.  Professor Snead's lecture is called, "Speaking Truthfully about Stem Cell Research and Human Cloning."

Rick

Sunday, November 6, 2005

Karl Rove, Joe Wilson, and the Body of Christ

By Thomas Berg

Last night I caught a short part of CNN's re-run Larry King interview with former Ambassador Joe Wilson, one of the people at the heart of the Plame-Libby affair.  In it Wilson noted that he and Karl Rove go to the same church (I think it's Protestant but am not sure), although to different services so they don't see each other, and needless to say they aren't reconciled as fellow Christians.  It just struck me as a particularly visible scandal of Christian disunity and "un-community" that (1) these two fellow church members are on opposite sides of such an intensely public fight (not just a good-faith disagreement), and (2) that it didn't seem even in the realm of options that their clergy would play any particular role in reconciling them and/or in calling one or both of them to account as Christians.  (I have my own view about who looks more out of step with Christian norms in this and certain other matters, but that's not my point.)

Back during the Clinton-Lewinsky scandal, theologian Stanley Hauerwas wrote a chapter in this book arguing that Christians should be more concerned with whether Clinton was disciplined by his church than whether he was impeached.  I'm not a fan in general of Hauerwas' theological ethical approach, but I do think that it properly reminds us to ask questions about whether the Christian church is playing any public role as a "polis" or "society" itself, rather than merely commenting on what goes on our civil polis or (even more inadequate) serving as an escape from the civil polis or society.  I realize that there can be things happening out of the public limelight in any situation, and that any such efforts can also be hampered by uncertainty as to the facts, by the consequences of pending legal investigations or proceedings, and simply by the recalcitrant will of one or both of the persons involved.  Nevertheless, this just struck me as a particularly visible example of how we, and American society in general, don't really expect the Christian church to play this role.

Tom

    

Bainbridge on Catholic judges

By Rick Garnett

Here is an essay by MOJ-er Steve Bainbridge, "Judges' Faith Does Matter," that is must-reading.  Discussing the obligations of Catholics in public life, and our obligation to avoid culpable cooperation with evil, Bainbridge notes:

We see that there are cases--albeit only in those limited class of cases in which a judge’s decision constitutes formal cooperation with evil--in which a Catholic jurist is religiously obligated to put his faith-based beliefs ahead of, say, his views of precedent. Conversely, however, it seems clear that judicial decisionmaking--even with respect to issues, like abortion, that raise very profound questions--under Church teaching does not per se constitute formal cooperation with evil.

Steve goes on to discuss a really good article by my friends John Garvey (of Boston College) and Amy Barrett (Notre Dame) on Catholic judges and death-penalty cases.

Steve also has a great post up in which he smacks down the latest by Amy and Andrew Sullivan, who are both unclear on the distinction between legislating and judging and on the relevance of that distinction to questions of culpable cooperation with evil.  Andrew Sullivan, I'm sorry to say, concludes his own intervention with this nonsense-laden paragraph:

[W]e are seeing . . . the political consequences of the Catholic hierarchy's slow collapse into fundamentalism. Once a Catholic is denied the moral capacity to separate her public duties from her private faith - or risk exclusion from the sacraments - then she is in an acute conflict between public duty and private conscience. Recusal may be her only option. But we now have five Catholics on the court. In Benedict's church, on critical Constitutional questions, we might face five recusals in abortion cases, which would make any ruling largely meaningless. This is the consequence of the Vatican's retreat from the Second Council's acceptance of religious freedom and conscience, and Benedict's deep qualms about a clear separation of church and state. The theocons want to reverse the Kennedy compromise. And in doing so, they may be forcing Catholics in public life to withdraw altogether or face the charge of a religious conflict of interest. In their zeal, the theocons are unwittingly breathing new life into anti-Catholic prejudice, and new force behind the exclusion of Catholics from public life in a pluralist democracy.

As regular Sullivan readers know, he has lost the ability in recent months to resist any opportunity to whack Pope Benedict with the "fundamentalism" club.  But, as he should know:  (1) There has been no "retreat" from the Council's "acceptance of religious freedom and conscience"; (2) that "acceptance" was never the same thing as the "Kennedy compromise"; and (3) Pope Benedict has no "qualms" about the "separation of church and state."  Sullivan is simply confused about what "separation", properly understood, is.

More on "Hello, Catholics"

By Rick Garnett

As I mentioned a few days ago, Daniel Finn has an essay in the latest issue of Commonweal called "Hello, Catholics:  Republicans and the Targeting of Religious Voters."  Finn observes that "the Republican Party [won the last election" by a margin of passionately religious-minded voters who cite moral concerns as their chief reason for voting" and asks "[w]hy has this happened? And why didn’t it happen a generation or two ago? "  Finn suggests (following a recent Harvard study) that the answer has to do with "strategic extremism," "the choice of an extreme political stance designed to attract more voter support."  According to this study, at this particular time, it is religious voters who are most attractive to politicians considering this strategy.  That is, churchgoers are useful to politicans. Finn continues:

But are politicians useful to churchgoers? Has the churchgoing public’s large political investment in moral issues, especially abortion, been duly rewarded? . . .

Let us examine how this applies to the politics of abortion. For all the principled talk about the right to life, the evidence suggests that opposing abortion is a strategic issue for the Republican Party. Republicans have held the White House during five of the seven four-year presidential terms since 1980, and have controlled one or both houses of Congress through most of that time. Has the party ever really made abortion a legislative priority? [RG:  Yes, I think it has.  Remember, Roe limits what legislatures can do.]  The number of abortions has remained about the same under Democratic and Republican presidents, even apparently rising somewhat since George W. Bush’s election.  [RG:  This "ris[e]" did not, in fact, happen.]  Republicans remain perennially the champions of Christians opposed to abortion-without actually bringing about any change. (Even partial-birth abortion legislation doesn’t reduce the number of abortions; it just requires that another method be used.) [RG:  There have been many changes in abortion-related policy under this Administration].  President Bush puts far more personal energy and White House clout behind tax cuts and Social Security “reforms,” and it is hard not to interpret his tepid follow-through on abortion as a Republican attempt to retain the support of its religious coalition without taking substantive action on the issue.  [RG:  What, exactly, could have been done -- consistent with Roe -- that has not been done or, at least, attempted?]

For Catholics, the question boils down to this: How many decades of inaction on abortion would be sufficient evidence for us to conclude that political mobilization on the issue is a misuse of scarce ecclesial resources-resources that should be directed to support a wider range of goals? With the appointment of a new chief justice for the Supreme Court, and the nomination of Harriet Miers to replace Sandra Day O’Connor, it is possible that the new Court will overturn Roe v. Wade. But if the Court does not overturn Roe, will Catholics then decide they’ve misallocated their political capital?

[RG:  It is worth flagging the possibility that abortion is not, in fact, the only issue on which a conscientious Catholic might conclude the Republicans are preferable to the Democrats.  It is also worth turning the tables and asking, "looking back on the Clinton years, and on the Clinton Administration's policies and actions relating to, say, the death penalty, welfare reform, military force, trade, etc. -- was enough progress made toward these other "goals" to justify supporting that Administration's absolutist abortion stance and policies?]

Some will reply that unsuccessful efforts in support of a just cause are warranted, even necessary, perhaps, for living a moral life. But those who recognize that politics is “the art of the possible”-and that moral people can at times be badly used in the political process-may better conclude that moral responsibility requires accountability for a broad range of issues.  [RG.  Agreed.  But to agree to this claim does not require one to agree with Finn's conclusions about voting.]

. . .  Moral perfectionists take the position that if abortion is the most fundamental moral issue today, then striving for political change on abortion should outweigh pressing for change on all other issues. So powerful and pervasive is this mistaken belief that I would not be surprised if at least some of these moral perfectionists misunderstand this essay and claim that it indirectly advocates abortion simply because it questions the political judgments the church has made in opposing abortion.  [RG:  To be clear, I do not so misunderstand Finn's essay.  I only mean to suggest that Finn is -- without being explicit about it -- relying heavily on a claim that, on every issue other than abortion, the Democrats are to be preferred by conscientious, faithful Catholics, who in good faith want to live and vote in accord with the Church's social teachings.]

Fundamental values should, of course, be protected by law. But in our efforts to use public policy to do so, good Catholic moral theology and Aquinas himself require that we avoid the pitfalls of singlemindedness.  [Fair enough.  On the other hand, abortion is more than just another issue, and one might think that concern about our tolerance -- even our celebration -- of abortion on demand is not a narrow, "singleminded" focus on a particular, but more of a worry about deeply rooted moral blindness in our culture.]

Let me be clear. . . . I do not intend to take Democrats off the hook on abortion. They have too often sided with extreme voices, badly overstating the claims of individual autonomy. The point here, though, is to put both parties on the hook for the full range of issues that Catholic moral analysis addresses.

Finn concludes with several "cautions":

The first is that prolife Christians who take religious perfectionism into politics act irresponsibly if they do not count the moral cost of demoting other issues of Catholic social thought.  [Fine.  And, it is also irresponsible to overstate the progress -- from a CST perspective -- that might be achieved on other issues by demoting abortion, or to downplay the progress that has -- within Roe's limits -- been made by Republicans on abortion, or to overlook the Democrats' own failures -- from a Catholic perspective -- on issues other than abortion.]  The second is that while Christians may take moral perfectionism into politics, the politicians appealing for their support surely do not. Decades of political promises without discernibly different results for abortion under Republican and Democratic administrations should be treated as prima facie evidence of the strategic use of Catholics and other Christians by politicians whose narrow interests are served by allowing the current impasse on abortion to continue while appearing to work for a resolution. Statements of support come cheap; pay attention to results.

I'm sorry for the long post.  Finn's essay is well worth reading, and it raises important questions. 

Friday, November 4, 2005

Catholic Law Schools: Thoughts on History and a Suggestion

By Amy Uelmen

I’ll throw in my two cents for our discussion on the recent National Catholic Reporter piece on Catholic Law Schools. 

First, a couple thoughts on “how did we get here?”  Some might describe the trajectory of the history of Catholic legal education as the gradual loss of a beautiful synthesis between legal education and the Catholic intellectual tradition – and I can see how this leads to a certain pessimism.  But I just can’t find much evidence for that story – please help me out if you have other sources which could support that theory.  I think the more solid account is that Catholic legal education was about access for an ethnic minority that otherwise would not have made its way the professional sphere.  I think this changes how we see our project significantly.  Efforts to work out what the Catholic intellectual tradition means for legal education then becomes a challenging and rather new project, in large part flowing from the teachings and insights of the Second Vatican Council.  I think that makes a big difference in the tenor of our conversation.

On the question of why the symbol of the cross is problematic and even offensive for some: history is helpful here too.  As theologian Mary Boys put it in a beautiful article—“The scandal of the cross consists in this: Christians in their history have made it a sign of conquering hate rather than sacrificial love.” (Mary C. Boys, The Cross: Should a Symbol Betrayed Be Reclaimed?, Cross Currents, Spring 1994: 44:1).  I’m with John Paul II in the need to recognize the ways in which we have completely blown it as a community—we need to both recognize the damage and working for healing.  Religious symbolism is complex for many reasons, and I don’t think it is necessarily an expression of an outright rejection of Catholicism or the tradition as a whole. 

I don’t mean to say this is the end of the story.  Last year we had a beautifully profound and transformative discussion with some of the faculty here about the meaning of the cross.  Our discussion included articulation of both the fears and anxieties that the symbolism of the cross has generated for non-Christians, as well as its profound and central meaning for Christians.  Even on these tough topics, we can listen to one another and learn from each other—even with the painful weight of history and need for reconciliation on many levels.

And with that, I’d like to make a suggestion.  What would happen if the focus of our conversations about Catholic identity and education became… love?  I have the sense that love might help us find a way through and beyond students’ and colleagues’ awkwardness in how they express themselves, so that we can understand what might be fear, anxiety, or perhaps just lack of understanding behind their comments or questions… I have seen how love does create a space of trust which leads to a genuine exchange of gifts through which Catholics and non-Catholics can learn from each other.

My favorite litany of Mary is not “mirror of justice,” but “refuge of sinners”—because how many times have I experienced God’s unconditional love in the very midst of my own limitations and lack of love?  Often when I walk into school I ask Mary for something of her love, so that whoever crosses my path—colleagues, students, whoever—of whatever religious background or political stripe—can find in me a space—even a refuge—of welcome and understanding.  And I believe this then can create the most fertile ground for an exchange on the place for the treasures and depths of the Catholic intellectual tradition in the law school curriculum.

Amy

"Sacred Mountains and Beloved Fetuses"

By Rob Vischer

A work in progress by NYU philosophy prof Elizabeth Harman has been posted on the Legal Theory blog.  In the paper, Harman argues that attitudes that attribute moral status do not endow moral status.  Why then should we respect the wishes of members of an indigenous tribe who believe that a particular mountain is sacred and is harmed by hiking, but not the wishes of abortion clinic protesters who believe that protecting a fetus is of vital moral importance?  Her explanation: "the anti-abortion protesters' love of [the woman's] fetus does not bring the fetus's death to be bad for the protesters, while by contrast the hikers' hiking on the mountain is bad for the tribe members in virtue of their worship of the mountain."   

Rob

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