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.

Tuesday, May 17, 2005

Federal District Court Decision for Same-Sex Unions

By Thomas Berg

Last week a federal district court in Nebraska, in an opinion here, struck down the state constitution's ban on recognition of same-sex marriages, civil unions, and domestic partnerships.  The ban had been added to the state constitution by voter initiative in 2000.  Eugene Volokh has a comprehensive critique of the decision here.  Whatever one's perspective on recognition of same-sex unions or marriage as a policy matter -- and Eugene in no way belongs to the anti-gay-rights movement -- his post demonstrates why the court's decision is at best a big overreach as a matter of constitutional interpretation, and on some of its rationales is simply frivolous.

Tom B.

"Judge Not"

By Rick Garnett

This essay by Philip Kenicott, "Judge Not," from today's Washington Post, asks whether (what the author sees as) the outbreak of hostility to the persons and work of judges in popular discourse -- particularly among religious conservatives -- should worry Catholics, academics, and others who -- like judges -- inhabit spheres that are "protected" from the "leveling power of untrammeled democracy":

It's curious . . . the degree to which anti-judicial rhetoric borrows the language of anti-Catholicism. It's especially odd, today, that these (perhaps subliminally) anti-Catholic ideas persist in a debate that has aligned Catholics with traditional social conservatives over cases concerning abortion, homosexuality and euthanasia. The Catholic Church, though it may today be in agreement with conservatives on many social issues, has long been on the receiving end of rhetoric remarkably similar to that being directed at the federal judiciary. It has been derided as anti-democratic, for standing apart from the mainstream of American life, for importing "foreign" elements into American culture, for being intellectually superior, and governed by rules and values characteristic of an arrogant, priestly class.

Is this anti-Catholic terminology merely accidental? All the derisive talk of elite priesthoods is probably meant as no particular slight to Catholics. But that might be of little comfort if the interests of the Catholic Church and anti-judiciary activists ever diverge -- if, for instance, the Church (or any other church) ever needs to rely on the federal judiciary to protect it from legislative persecution. And if the anti-elitist rhetoric directed at judges today isn't just an occasional flare-up of ire sparked by particular decisions, but part of a broader ideological agenda within American public life, then other institutions that resemble the judiciary, and the Catholic Church, may have reason to be concerned as well.

Academia, which is also an institution set apart from the mainstream of American life, given to unpopular pronouncements and governed by rules that elevate and protect for life the tenure of often arrogant individuals, has already found itself under legislative attack. The leveling power of untrammeled democracy has a voracious appetite -- which is one of the arguments for creating spheres that are protected from its power.

Kennicott makes an interesting point, though it should be noted that there is no inconsistency between (a) worrying about the "voracious appetite" of the "leveling power of democracy" and (b) worrying about the decisions and attitude of judges who appear to be exceeding the scope of their (arguably un-democratic) power.  The complaint about judges is (or, at least, should be) not that they are judges, or that they are not elected, or that their rulings go against popular opinion; it should be that some are handing down excessively ambitious and legally incorrect rulings in contexts and with respect to issues to which their authority does not properly extend.  To think that not-democratically-accountable power is worrisome in some contexts (for example, the debate over whether or not a community should embrace a sweeping abortion license) is not (necessarily) to endorse "democracy" in all other contexts (for example, the debate over the divinity of Christ).

Rick

Monday, May 16, 2005

"Church Meets State"

By Rick Garnett

In Sunday's New York Times, Mark Lilla had this review of Gertrude Himmelfarb's latest, "The Roads to Modernity."

[T]he argument is that, unlike the anticlerical philosophes of the French Enlightenment, the British and American thinkers of the 18th century looked favorably on religion as a support to modern democracy. They saw that it could assist in forming good citizens by providing moral education and helping people be self-reliant. By teaching people to work, save and give, religion could prove a ballast to the self-destructive tendencies of both capitalism and democracy. There is, therefore, nothing antimodern or even antiliberal in encouraging American religion and making room for it in public life.

As intellectual history, this is a sound thesis. It is, however, incomplete, which is why we should be wary of drawing contemporary lessons from it. In truth, the leaders of the British and American Enlightenments shared the same hope as the French lumières: that the centuries-old struggle between church and state could be brought to an end, and along with it the fanaticism, superstition and obscurantism into which Christian culture had sunk.

The review proceeded pretty well, I thought.  But it ends badly:

The leading thinkers of the British and American Enlightenments hoped that life in a modern democratic order would shift the focus of Christianity from a faith-based reality to a reality-based faith. American religion is moving in the opposite direction today, back toward the ecstatic, literalist and credulous spirit of the Great Awakenings. Its most disturbing manifestations are not political, at least not yet. They are cultural. The fascination with the ''end times,'' the belief in personal (and self-serving) miracles, the ignorance of basic science and history, the demonization of popular culture, the censoring of textbooks, the separatist instincts of the home-schooling movement -- all these developments are far more worrying in the long term than the loss of a few Congressional seats.

No one can know how long this dumbing-down of American religion will persist. But so long as it does, citizens should probably be more vigilant about policing the public square, not less so. If there is anything David Hume and John Adams understood, it is that you cannot sustain liberal democracy without cultivating liberal habits of mind among religious believers. That remains true today, both in Baghdad and in Baton Rouge.

Now, I yield to no one when it comes to eye-rolling about "End Times" literature, but the suggestion that, say, the (entirely reasonable) desire of many faithful citizens to home-school their children "in Baton Rouge," or the (entirely reasonable) frustration of many sentient citizens with "popular culture," has any instructive connection with the death-dealing fanaticism of those who sever captives' heads on videotape in Baghdad is, well, unconvincing.  I agree with Lilla that (a) religious beliefs are relevant to political capacities and practices and, therefore, (b) religious beliefs matter.  But I'm more concerned about Lilla's call for Times readers to "polic[e] the public square," and the threat such a call poses to democracy, properly understood, than I am about the persistence of belief in miracles.  Nor, it should be noted, and contrary to Lilla's suggestion, is it the case that movements away from "mainline" liberal Christianity represents a "dumbing down" of the Faith.

Rick

THE THOMAS REESE AFFAIR

By Michael Perry

Michael Scaperlanda invited us to read Russell Shaw's op-ed piece in the Wall Street Journal (here.)  I read it.  In my judgment, the editors of Commonweal and The Tablet, whose views I posted below (here and here), make a much more compelling case.  In any event,  readers of this blog may be interested in this piece, from the May 14th issue of The Tablet:  The Thomas Reese Affair by Robert Mickens (here).

Michael P.

The Washington Post profiles Phillip Johnson

By Rick Garnett

Sunday's Post included this profile of Berkeley law professor and intelligent-design theorist Phillip Johnson.  A good, helpful read:

For centuries, scriptural literalists have insisted that God created Heaven and Earth in seven days, that the world is about 6,000 years old and fossils are figments of the paleontological imagination. Their grasp on popular opinion was strong, but they have suffered a half-century's worth of defeats in the courts and lampooning by the intelligentsia.

Now comes Johnson, a devout Presbyterian and accomplished legal theorist, and he doesn't dance on the head of biblical pins. He agrees the world is billions of years old and that dinosaurs walked the earth. Evolution is the bridge he won't cross. This man, whose life has touched every station of the rationalist cross from Harvard to the University of Chicago to clerk at the Supreme Court, is the founding father of the "intelligent design" movement.

Rick

Sullivan's confusion

By Rick Garnett

Super-blogger Andrew Sullivan offers some (unfortunately) misguided thoughts about the "separation of church and state".  Commenting on Archbishop William Levada's (unremarkable) observation that "from the perspective of society, the tendency to 'privatize' the moral dimension, so common to America with its slogan 'separation of church and state,' can potentially have disastrous consequences."  Sullivan asks, "for Levada, church-state separation is now merely a 'slogan,' not a fundamental principle of a free society? Another sign of where Benedict is going." 

In fact, the "separation of church and state", properly understood, is -- in Sullivan's words -- a "fundamental principle of a free society."  And, as Sullivan knows very well, Archbishop Levada (and Pope Benedict) would agree with this statement.  It is also a fact, though, that in American public discourse and constitutional law, "the separation of church and state" often functions as a mantra, a misleading figure of speech, and an often anti-Catholic "slogan."  (See, e.g., Philip Hamburger, The Separation of Church and State).  Sullivan, I'm sure, knows this very well, too.  I suspect, in fact, that Sullivan agrees with what Archbishop Levada actually said, namely, that the "separation of church and state" is often misunderstood as a principle of "privatization," according to which religious belief, expression, and commitment are required by democratic values to remain outside public discourse and civil society.  Nothing about a "free society" requires -- in fact, a free society cannot tolerate -- such a principle.

Rick

Prejean and Scalia on the Death Penalty

By Rick Garnett

Here is an account of what sounds like an interesting encounter.

Rick

Russell Shaw on Catholic Journalism

By Michael Scaperlanda

Several recent posts have dealt with the responsibilities of Catholic journalists arising from the resignation of America's editor, Fr. Reese, S.J.  Russell Shaw provided his analysis in Friday's Wall Street Journal:

"[E]diting a religious magazine is, for a priest, analogous to preaching a homily. Catholics rightly expect to hear their church's teaching expounded from the pulpit, and they have the same right to find it upheld in the pages of a Catholic journal edited by clerics and published by a religious order. Parallels are easy to find in other fields. Junior officers do not have the right to lecture the troops on the folly of the strategy and tactics devised by senior officers. Diplomats are not free to criticize their governments' policies before their foreign counterparts. And public officials of the church have no right to undermine its authoritative doctrine and policy in the eyes of the Catholic people.

That doesn't mean marching in lockstep. Differences in approach and emphasis are welcomed, and there is ample room for spirited debate over truly open questions, such as the conditions under which capital punishment is allowable. But the fundamental obligation, for the editors of America and other such publications, is to represent the church faithfully and to convey its teachings loyally."

For the full article, click here.

Saturday, May 14, 2005

"This will not help faith to thrive"

By Michael Perry

[From the May 14th issue of The Tablet:  The International Catholic Weekly, published in London.]

14/05/2005

This will not help faith to thrive

Editorial 

The internationally renowned Jesuit magazine, America, bears the name of a country that has traditionally regarded freedom of speech as one of its core values. The resignation of its editor-in-chief, Fr Thomas Reese SJ, as a result of prolonged pressure from the hierarchy, dramatises the way American Catholicism is being pulled between two cultural norms. One stresses the importance of open and honest debate and the other expects deference to church authority and those who wield it. These norms are inevitably in tension, but they are not, with goodwill on all sides, mutually incompatible.

Yet they are being made to seem so in the United States, where goodwill between Catholics of different opinions seems an increasingly scarce commodity. For nearly seven years Fr Reese provided a forum for the expression of various points of view on matters of great concern to the life of the Catholic Church in the United States , some of which were highly controversial. The Congregation for the Doctrine of the Faith, both on its own behalf and in apparent response to pressure from some American bishops, began to ask the Jesuit authorities in America to rein him in. His province defended him but came to see the battle with Rome as “unwinnable”. The CDF, under its then Prefect, Cardinal Ratzinger, was demanding either a new editor or a board of censors with power to overrule the editor in the name of the American bishops. Fr Reese was clearly a thorn in the CDF’s side. He was both accessible to the media and progressive, at a time when an increasingly conservative and intransigent hierarchy wanted to see the Church in America steered to the right.

His resignation rescues the Jesuits from a dilemma, and may be intended also to illustrate the attitude to free speech in the Church taken by the man who is now Pope Benedict XVI. According to Jesuit sources, the CDF never made clear precisely what it took exception to in the articles in America which it challenged. So it was not possible to mount a theological defence. This suggests the CDF’s real worry was that the articles’ cumulative impact conveyed a strong implication that the senior pastors of the Church in the United States, supported by Rome, were leading it in the wrong direction; and that the Society of Jesus, which owns and publishes America, tacitly shared that critique. It is worth recording that in England and Wales, where the bishops continue to enjoy the confidence of the great majority of Catholics, such a complaint is far more often heard coming from the right than from the centre or left. But nor is there any question of silencing such criticisms.

The underlying issue is of concern throughout the Church: that debate and discussion are necessary parts of the process by which the Catholic faith develops. The action of the CDF against Fr Reese is bound to have a chilling effect, drawing the permissible limits of criticism and dissent ever more narrowly. This is a risk-averse philosophy which is of no benefit to the faith and intelligence of the Catholic laity in particular, and betrays a certain lack of confidence in the Holy Spirit. It is not disloyalty but honesty to acknowledge that there are usually two sides to an argument. As Cardinal Newman said in his seminal essay “On Consulting the Faithful on Matters of Doctrine”, to cut the laity off from participation in the Church’s thinking “in the educated classes will terminate in indifference, and in the poorer in superstition."
_______________

Michael P.

Thursday, May 12, 2005

How Specific Should Catholic Social Thought Teaching Be?

By Thomas Berg

On the Legal Scholarship Network, Michele Pistone of Villanova Law School posts "The Devil in the Details: How Specific Should Catholic Social Thought Teaching Be?," also published recently in the Journal of Catholic Social Thought.  The abstract:

The article explores Catholic social teaching's tradition of generality, and assesses the wisdom of, and potential for, change to a more specific orientation. The article enlightens the reader as to reasons for the traditional approach to Catholic social teaching, what might be gained by the articulation of a more concrete social teaching, the assertion that a more specific social teaching will require greater lay input, a suggestion for a possible mechanism for accomplishing this, and the benefits of greater lay input, particularly via the aforementioned mechanism. The article also makes some recommendations as to when, how, and to what degree the Church should aspire to a more detailed formation of its social teaching.

UPDATE:  Professor Pistone tells me that because of a glitch at LSN, an earlier version of her article got posted on the website to which I linked.  The up-to-date version will be posted in the near future; stay tuned and I'll mention it.

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