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.

Friday, August 20, 2004

Why Wheat Matters

By Rob Vischer

It's reassuring to see that, even in the dog days of August, readers are paying attention. My query on the Church's refusal to allow exceptions to the wheat-only communion rule brought immediate responses. Jim Zaleta finds it "entirely reasonable" that the "Church be able to specify the physical matter of the Eucharist to ensure the integrity of the sacrament," and points out that Christ is fully present in the wine, so the wheat-intolerant among the faithful are not deprived of participating in communion. On that point, Jeff Drocco says that the only really tough cases involve individuals who cannot consume wheat or alcohol. And Catherine Collingwood offers the following defense:

The Church does not have the authority to use anything other than wheat in the Eucharistic host. Our Lord had several options, but chose to use unleavened wheat bread and wine in the Last Supper. It is also noteworthy that he many times used wheat as a metaphor in parables and such -- never any other type of bread.

In the case of the girl from New Jersey, her family was offered several
options including at least one that was gluten-free (taking the Blood
only). They are insisting that none of those are acceptable. By
doctrine they are; taking the Blood only constitutes a whole Eucharist.
"Reasonable accommodation" does not mean "any accommodation" and the
Church has used wheat for thousands of years even though this girl is
hardly the first gluten-intolerant Catholic. Why should it change just
for her?

Also, there's an authority issue here. The priest who gave her the
rice-based host did so without authorization from his bishop. He
probably didn't ask because he knew the bishop would say no. That's a
clear violation in and of itself.

I have no quarrel with any of these explanations. Indeed, one reason I find Catholicism attractive is because of its insistence that, in the spiritual lives of the faithful, "stuff matters," not just one's internal disposition. It is, though, sometimes jarring to realize the degree to which it matters.

Rob

UPDATE: Moteworthy.com has some good insight on the issue. (Thanks to Jim Zaleta for pointing it out.)

"Democrats Can 'Do Better' on Abortion"

By Rick Garnett

Here is a thoughtful and heartfelt op-ed by Paul Contino, which echoes what some of my MOJ colleagues have been saying in recent months: "Sen. John F. Kerry's acceptance speech at the Democratic National Convention," he writes, "reminded me of why I am a Democrat at heart. In my lifetime, the Democratic Party has stood consistently on the side of the poor, the weak, the vulnerable. But I have not cast my vote for a Democratic presidential candidate in 12 years because the Democrats have refused to extend their protection to the weakest and most vulnerable - unborn children."

He then calls for Senator Kerry to "challenge those who are considering abortion to 'do better,' and [to] challenge the United States as a nation to 'do better' by them."

Rick

Thursday, August 19, 2004

Why does wheat matter?

By Rob Vischer

CNN reports on the plight of a wheat-intolerant New Jersey girl whose first communion was declared invalid by the Church because the wafer was wheat-free. Obviously, this sort of incident is deemed newsworthy because of the Church's seeming defiance of common sense and compassion in refusing to allow an exception to an arcane rule. These and similar news reports share an unspoken, but unmistakable undercurrent, along the lines of, "How can an organization beset by problems as severe as the priest sex abuse scandal fritter away its remaining goodwill by alienating the faithful with such narrow-mindedness?" As someone who did not grow up Catholic, I admit that a good answer eludes me, and I'm hoping a co-blogger or reader might offer some insight. Why will the Church not allow the faithful to participate in communion using a non-wheat wafer when wheat would cause them serious medical harm?

Rob

Vischer blurbed in Legal Affairs

By Rick Garnett

The latest issue of the always enjoyable Legal Affairs magazine features, among other things, a short review of, and comment on, our colleague Rob Vischer's paper, "Heretics in the Temple of the Law." (Unfortunately, a link to the blurb is not yet available. So, read the magazine!).

After summarizing Rob's paper, the reviewer writes: "It's a cheery message, but it is made less convincing by Vischer's failure to answer the big question facing religious lawyers: How can they reconcile their religious doctrine with the doctrine of the separation of church and state?"

With all due respect, I'm not sure Rob's "failure" to grasp (what strikes me as) this awkward question undermines his paper at all; in any event, he does engage, and takes seriously, the problem of religious lawyering in conditions of pluralism. Read Rob's paper, and see what you think.

Rick

Wednesday, August 18, 2004

Jerry Falwell's curious jurisprudence

By Rob Vischer

Jerry Falwell's Liberty University School of Law opens its doors this month. Given my general inclination toward the "marketplace of ideas" approach to life in a pluralist society, I'm all in favor of bringing fresh voices into the legal academy, even Jerry Falwell's. I do wonder why exactly he feels led to open a law school given the school's stated philosophy that "law should not be wielded as an instrument of political, social, or personal change, but . . . should serve the common good of mankind." It seems far-fetched to presume that the common good can be served without bringing about political, social, or personal change. And if there's no instrumental function of law other than maintaining the status quo, what exactly does Falwell envision his graduates accomplishing? His Moral Majority certainly seems to have had a broadly instrumental view of law, and I can't see how lawyers who are serious about cultural engagement can segregate the law from its political, social, and personal implications, whatever they may be.

Rob

What is the Vatican Saying About Women?

By Rob Vischer

Notre Dame law prof Cathleen Kaveny has written a good piece in the Washington Post dissecting the Vatican's recent statement on women.

Rob

Tuesday, August 17, 2004

Conference: Epiphanies of Beauty

By Rick Garnett

Here is a link to a conference, "Epiphanies of Beauty: The Arts in a Post-Christian World," sponsored by the Notre Dame Center for Ethics and Culture. And, here's the "blurb" and description:

"Even beyond its typically religious expressions, true art has a close affinity with the world of faith, so that, even in situations where culture and the Church are far apart, art remains a kind of bridge to religious experience." -- Pope John Paul II, Letter to Artists

Pope John Paul II addressed his 1999 Letter to Artists "to all who are passionately dedicated to the search for new 'epiphanies' of beauty, so that through their creative work as artists they may offer these as gifts to the world." In using the word "epiphany," the Holy Father drew attention to art as the manifestation, or "shining forth," of the glorious beauty of God's creation. Accordingly, as the pope says elsewhere in the letter, beautiful works of art serve as "a kind of bridge to religious experience," and thus as a genuine source of moral, spiritual and cultural renewal.

The Notre Dame Center for Ethics and Culture's fifth annual fall conference will examine the variety of ways in which the fine arts can help build a more genuinely Christian civilization in an era that is ever more deeply post-Christian in its character. Our first triennial series culminated in proposals on how to build a genuine culture of life, and last year's conference reflected on the renewal and formation at the heart of such a culture. This conference will focus our reflection on the fine arts and their place in a culture of life.

Rick

Florida school-choice decision

By Rick Garnett

Thanks to Howard Bashman, here is a link to the decision by a Florida appeals court, invalidating that State's school-choice program.

In a nutshell, the state court ruled that the program violates a provision of the Florida Constitution, which states that "no revenue of the state . . . shall ever be taken from the public treasury directly or indirectly in aid . . . of any sectarian institution." In the view of the majority, Florida's no-aid provision is more restrictive than the U.S. Constitution's "Establishment Clause." And, the court ruled that the no-aid provision did not violate the First Amendment's "Free Exercise Clause."

The opinion includes a long and -- in my view -- regrettably laundered version of the history of "no-aid" provisions like Florida's. These provisions were, as MOJ readers likely know, designed not to "separate church and state", or to secularize education generally, but to counter perceived Catholic influence. (For a discussion of these "Blaine Amendments" and their premises, see this paper). (It should be noted that the majority's suggestion, in a footnote, that expert opinion on the Blaine Amendments is evenly split on the question whether anti-Catholicism "played a significant role in the[ir] development" is quite mistaken. The Blaine Amendments were not, as the majority suggests, about "religious schools"; they were about "Catholic schools.")

The court's conclusion that Florida's exclusionary provision does not violate the Free Exercise Clause -- and that this result is supported by the Supreme Court's recent decision in Locke v. Davey -- is also debatable. In Davey, the Court agreed that the Free Exercise Clause did not require the State of Washington to fund college-level training in ministry and theology. I do not believe, though, that Davey necessarily authorizes more generalized discrimination in education-funding programs. On this matter, the dissent seems to have the better of the argument.

In any event, the opinion is worth a look.

Rick

Miscellanea from COMMONWEAL

By Michael Perry

This week's COMMONWEAL, which many of you no doubt read, is particularly rich, I think. There are two excellent "Open Letters"--one to John Kerry, the other to the U.S. Catholic bishops. There are also two articles well worth our attention--one by MOJ's own Rick Garnett, on "the Supreme Court on religious freedom"; the other by Charles Morris, "Economic Injustice for Most: From the New Deal to the Raw Deal". Each is these four items is included in the attached PDF document:

Commonweal.pdf

Michael

Moral obligation as hopeless burden

By Rob Vischer

A recent piece in the New Yorker raises some interesting questions about personal sacrifice and the moral life. Zell Kravinsky gave essentially his entire forty-five-million-dollar real-estate fortune to charity, but still felt like he had not done enough, so he made an unrestricted donation of one of his kidneys. His selflessness is inspiring to a certain extent, but he also provides a good case study in the hopelessness that arises from a rejection of the localized moral responsibility embodied in subsidiarity. Asked about his moral responsibility to his own children, Kravinsky asserts that "the sacrosanct commitment to the family is the rationalization for all manner of greed and selfishness," and denies that "two children should die so that one of my kids might live." Our culpability for others' deaths is expansive, in his view, for we cause death by our omissions as much as our action, so failing to donate our organs renders us, in his eyes, "murderers." (He embraces the universal focus of Peter Singer's approach to morality.)

Certainly moral responsibility does not end at the boundaries of the family unit (as subsidiarity emphasizes), and "saving for our kids" does serve as a too-convenient vehicle by which we ignore pressing needs around us. But that is not a reason for disregarding the primacy of the local altogether. Indeed, subsidiarity lets us address needs in a way that allows us to have a discernible impact, rather than being saddled with the crushing burden of all human suffering. Not surprisingly, the New Yorker article focuses on Kravinsky's pervasive despair.

Rob

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