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, April 25, 2016

NOMOS LVI ("American Conservatism") is (finally) out

NOMOS is "the annual yearbook of the American Society for Legal and Political Philosophy."  Volume LVI, on the theme of "American Conservatism" is now out . . . about nine-and-a-half years after the papers it contains were presented.  Get your copy here!  My own contribution, "The Worms and the Octopus:  Religious Freedom, Pluralism, and Conservatism," is included.  Here is the abstract:

A formidable challenge for an academic lawyer hoping to productively engage and intelligently assess “American Conservative Thought and Politics” is answering the question, “what, exactly, are we talking about?” The question is difficult, the subject is elusive. “American conservatism” has always been protean, liquid, and variegated – more a loosely connected or casually congregating group of conservatisms than a cohesive and coherent worldview or program. There has always been a variety of conservatives and conservatisms – a great many shifting combinations of nationalism and localism, piety and rationalism, energetic entrepreneurism and romanticization of the rural, skepticism and crusading idealism, elitism and populism – in American culture, politics, and law.

That said, no one would doubt the impeccably conservative bona fides of grumbling about the French Revolution and about 1789, “the birth year of modern life.” What Russell Kirk called “[c]onscious conservatism, in the modern sense” first arrived on the scene with Burke’s Reflections on the Revolution in France, and at least its Anglo-American varieties have long been pervasively shaped by his reaction. As John Courtney Murray put it, Burke’s targets included those “French enthusiasts” who tolerated “no autonomous social forms intermediate between the individual and the state” and who aimed to “destroy[]…all self-governing intermediate social forms with particular ends.” I suggest, then, that to be “conservative” is at least and among other things to join Burke in rejecting Rousseau’s assertions that “a democratic society should be one in which absolutely nothing stands between man and the state” and that non-state authorities and associations should be proscribed. In other words, to be “conservative” is to take up the cause of Hobbes’s “worms in the entrails” and to resist the reach of Kuyper’s “octopus.” At or near the heart of anything called “conservatism” should be an appreciation and respect for the place and role of non-state authorities in promoting both the common good and the flourishing of persons and a commitment to religious freedom for individuals and institutions alike, secured in part through constitutional limits on the powers of political authorities. Accordingly, one appropriate way for an academic lawyer to engage “American Conservative Thought and Politics” is to investigate and discuss the extent to which these apparently necessary features or elements of conservatism are present in American public law. Pluralism and religion, in other words, are topics that should provide extensive access to this volume’s subject.

Thanks to the dedication of Sandy Levinson, Joel Parker, and Melissa Williams for bringing this long project to completion!

Friday, April 22, 2016

Are the "barricades of the culture wars . . . collapsing"?

In this piece, commenting on (among other things) the awarding of this year's Laetare Medal to Vice-President Biden and Speaker Boehner, my former Notre Dame colleague Cathy Kaveny writes:

What has changed in the past seven years? We now have widespread recognition that the barricades of the culture wars are collapsing upon us. No war—even a culture war—can become an indefinite and customary state of affairs without disastrous consequences. We can only recover by learning how to work together again—despite our deep differences—and learning to see the good in one another. 

There is, to be sure, a lot to regret about the reality of the "culture wars" and the way they've distorted politics and harmed discourse -- among those things, in my view, is the common but unhelpful practice of labeling those with whom one disagrees politically as "culture warriors" -- although it seems to me that regret will not change the reality.  It is simply the case -- and it does not make one a "culture warrior" who is "obsessed" to notice it -- that there are determined, well-funded, and increasingly powerful institutions, actors, and forces at work in the culture, in politics, in the law, and in the academy (for example) that oppose strongly the moral vision, commitments, and witness of the Catholic Church and that are doing what they can -- and they can do a lot -- to marginalize the Church, her teachings, and her institutions in public life.  

I'm not entirely sure what Cathy means with her statement that "the barricades of the culture wars are collapsing upon us," but if she means that the institutions, actors, and forces I just mentioned are winning -- are overrunning the defensive "barricades" -- then I certainly agree.  They are not giving up or seeking a truce or peace, and there's no reason to think that they plan on finding ways to work together across deep differences.  Like Cathy, I think, I would very much prefer a politics that involved sincere and civil efforts to find common ground where it exists, to take half-a-loaf over nothing, to welcome incremental improvements and not insist on revolutions or routs, that didn't involve boycott threats and "bigotry" charges, etc.  I agree entirely with Cathy that politics is the art of the possible, that those who embrace the Church's social and moral teachings -- in their entirety -- have no choice but to not let the perfect be the enemy of the good, and that more "balance," compromise, and charity are needed in our politics.  I agree that it is "counterproductive" to insist on unattainable policy goals (though I think we cannot mute -- and Pope Francis is not telling us to mute -- our truth-telling about the injustice of our abortion regime).

At the same time:  it's a mistake to imagine that we can wish or good-will away the ongoing campaign against the Church's witness, work, and freedom.  This campaign is, again, a reality.  It has very real implications for, and poses non-imaginary threats to, our hospitals, universities, schools, social-welfare agencies, and social-justice activism.  It involves, first, conditions on funding, tax-exempt status, accreditation, and licensing, but it will not stop with conditions that we will be able, in theory, to take or leave.  By all means, let's work (and pray) for a better politics.  Let's be realistic, pragmatic, and -- perhaps -- resigned to certain new realities.  Let's also keep our eyes open.

"When Bernie Met Francis"

Interesting commentary by University of St. Thomas law prof Charles Reid, here.  An excerpt:

One of the most important contributions that Catholic social thought can make to today’s progressive politics is a theory of the state as guarantor of a just and fair economic playing field. Bernie Sanders and others would be well-advised to draw deeply from this tradition.

In doing so, they would find themselves at odds with the last three-plus decades of political discourse, which has been all about de-legitimizing the state. When Ronald Reagan said in 1981 that “government is the problem, not the solution,” he likely did not believe it himself. But his rhetoric was careless. And surely it stands behind much of the reckless talk and dangerous politics emanating from Donald Trump, Ted Cruz, the Tea Party fanatics, and the Ayn Rand libertarian right.

Wednesday, April 20, 2016

The New Battle of the Sexes

Deferring to the U.S. Department of Education's Title IX guidelines and a January 2015 statement from the DOE's Office of Civil Rights, a Fourth Circuit panel ruled in favor of a transgender student up and against the student's school yesterday, holding that the school violated Title IX when it restricted students' bathroom use to their biological sex (rather than chosen gender identity). Ed Whelan writes at Bench Memos: "The court, in short, ruled that discrimination on the basis of gender identity is discrimination on the basis of sex, and that Title IX 'requires schools to provide transgender students access to restrooms congruent with their gender identity.'” Whelan posts a portion of Judge Paul Niemeyer's dissent which is well worth reading. Here's the money quote: "Title IX’s allowance for the separation, based on sex, of living facilities, restrooms, locker rooms, and shower facilities rests on the universally accepted concern for bodily privacy that is founded on the biological differences between the sexes." 

The student's Equal Protection claim is pending before the district court thus was not at issue in the case decided yesterday. Still, Niemeyer's understanding of biological sex as the essential legal marker is in keeping with the line of Equal Protection cases that take seriously "inherent" biological difference, even as they treat "sex stereotyping" (what we'd now likely refer to as "gender stereotyping") as sex discrimination. Though I don't pretend this is a full analysis, I thought it'd be helpful to point out quickly some relevant language in the Court's decisions vis-a-vis biological difference.

Remember Justice Ginsburg writing for the Court in United States v. Virginia (1996) in which the Court struck down the historic male-only admissions policy of Virginia Military Institute:  “Inherent differences between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity." And Justice Kennedy writing for the Court in Nguyen v. INS (2001), upholding the INS' differential treatment of American mothers and fathers in their children's citizenship proceedings: "To fail to acknowledge even our most basic biological differences...risks making the guarantee of equal protection superficial, and so disserving it. Mechanistic classification of all our differences as stereotypes would operate to obscure those misconceptions and prejudices that are real." 

For sex discrimination law to serve its function--for the rule of law to govern--sex as a legal term has to mean something in particular.  

 

 

Monday, April 18, 2016

Great news: Notre Dame scraps plans for "liberal arts college" collaboration with China

The story is here.  For almost two years now, I've been very nervously awaiting the outcome of the decision-making process regarding the proposal to set up a "liberal arts college" in cooperation with the government in the PRC.  From the start, I thought (and said) that the proposal was not an attractive or defensible one, that it would involve close collaboration in real violations of academic freedom and human rights, and that it would compromise not only the University's integrity as a Catholic institution but as a university dedicated in a particular way to the liberal arts and the pursuit of truth through open inquiry.  In any event, the outcome and news are good.

Pray for the suffering Church in China.

Notre Dame legend, Prof. David Solomon, to retire

Prof. David Solomon -- a longtime professor of philosophy at Notre Dame -- is retiring at the end of this semester.  (Here's a very nice tribute to him that appeared the other day in the campus newspaper.)  It's impossible to overstate the importance of Prof. Solomon's contributions not only to the formation and education of thousands of Notre Dame students but also to the University's Catholic character and mission.  Among other things, Prof. Solomon was the founding director of the Notre Dame Center for Ethics & Culture, which has been for nearly 20 years a center of vibrant inquiry and engagement on issues ranging from bioethics to J.R.R. Tolkien.  The Center's annual Fall Conference is, for many of us, among the highlights of the academic year.  

When I first came to Notre Dame, in 1999, I met Prof. Solomon through a mutual friend and colleague and, pretty quickly, my daily ritual included a bagel and coffee with David and a few others at Lula's, South Bend's initial effort at a campus-y coffee shop.  My first daughter spent a lot of time, as a baby, crawling around under the tables there and wiping crumbs on Prof. Solomon.  He welcomed and inculturated my wife and me into the University community and his love for and dedication to the place were inspiring and infectious.  It's very hard to imagine life at the University without him, his wit, and his generosity.  If you care about Catholic higher education -- and all MOJ readers should -- then you have good reasons to be grateful to David Solomon.  

UPDATE: This tribute by Fr. Bill Miscamble is excellent.  A bit:

David has loved being a teacher and a philosopher and his labors have allowed him to seek the good and to touch the lives of many students. Of course, as a philosopher he has emphasized the role of the intellect, but this has never been done by him at the expense of the heart. No doubt over time he has come to appreciate ever more deeply and in the manner of St. Thomas that love must have the final word, for only love can truly complete the intellect’s knowledge. He has given of himself for his students, his colleagues, and his friends and Notre Dame is a much better place because of him.

Sunday, April 17, 2016

"Conversations" with Kristol . . . and Robert George (on history, Unger, Hegel, etc.)

I really enjoy Bill Kristol's "Conversations" podcasts.  Some of my favorites (I listen when "running") have been with Mitch Daniels, Justice Alito, and Leon & Amy Kass.  And now, there's the latest, which features our own Robby George.  It's really good.  Check it out.

Here's a bit, from the transcript, on "history":

GEORGE: It’s a tough challenge, but things always seem impossible until people do them. We are still, even those of us who are conservatives, to some extent in the grip of the Hegelian-Marxist idea that there are laws of history and society that generate outcomes quite independently of what individual actors or people organize together do. Now, that’s a really stupid view.

KRISTOL: Somehow deep in the modern world. Progress goes in one direction, more or less.

GEORGE: Just think of how much traction folks on the Left get out of accusing their adversaries of being on the wrong side of history. Many of their adversaries are actually concerned about that. They’re worried about being on the wrong side of history, as if history were endowed with the powers of judgment with God to determine what’s right and what’s wrong, separate the sheep from the goats on the last day, so to say. But of course, history – this is why I say it’s stupid – history is an impersonal sequence of events. It has no power to judge than a rock outcropping or a golden calf. It’s just literally an idol.

KRISTOL: It’s a powerful idol. Bill Buckley doesn’t get enough credit for standing athwart history. That was a very important thing just to say. He didn’t believe history had a movement either, I don’t think. But he thought it was important to show people that a young, well-educated, intelligent, fun-loving person could say no. You know, one forgets just in the mid-50s how bold that was, I think, and how much people did believe in a sort of decayed version of Hegelian-Marxist history with a capital H.

GEORGE: We’re still in its grip today. Can I say one more word about that, Bill, before you move on? You’ll probably find it surprising that I was not taught this view, but strongly reinforced in this view when I was a student at Harvard Law School by a leftwing professor. It was actually Roberto Unger who strengthened my belief in the radical contingency of history and my skepticism about the Hegelian-Marxist idea of a progressive history because although he was on the Left, he was a radical anti-Marxist when it came to the idea of laws of history and society. Radically skeptical about them, as well he should be. And you know, I don’t agree with various other aspects of his thought – on this, I think he was absolutely right – but he was a very strong influence on me.

KRISTOL: That’s interesting. I remember he was such a prominent – considered far on the Left in a way. Radical Left, as you say. More radical than Marxist almost.

GEORGE: And some people both on the Left and the Right just regarded him as a very sophisticated Marxist. When he himself said, “No, I’m not that. You’ve misunderstood me,” people were puzzled.

There was an exchange he had in the University of Minnesota Law Review years ago after his first book was published, Knowledge and Politics, when Tony Kronman who later became a very prominent law professor, Dean of Yale Law School. Tony Kronman in a review of Knowledge and Politics just identified Unger as a sophisticated sort of Frankfurt School Marxist. Unger wrote back in saying, “No, you’ve completely misunderstood me.” Kronman couldn’t understand, and Unger said, “The thing that you most misunderstood me about is I can’t be a Marxist because I do not believe in a dialectic of history. I don’t believe in the inevitability of anything. I believe in the radical contingency of history. That idea is much more comfortably categorized as a Catholic idea.” Unger himself was not a believer. But he said, “That’s much more easily categorized as, say, a Catholic idea than as a Marxist idea.”

Friday, April 15, 2016

Sex and Gender in the Literature

Last week I participated in an intense and deeply informative conference on "gender theory," co-sponsored by the Catholic Women's Forum at the Ethics and Public Policy Center and the Catholic Information Center. We heard from a scientist, historian and economist, as well as philosophers, theologians, and lawyers. Should these papers be published--and that is the hope--I will be sure to post here. But in the meantime, I wanted to post a few excellent resources for anyone trying to make sense of what has become a leading--and confusing--issue today. 

Here is a collection of studies drawn from scientists and researchers on sex differences in the brain, posted yesterday on MercatorNet, originally published in the journal, The Family in America. A few money quotes: 

. . . The truth is that virtually every professional scientist and researcher into the subject has concluded that the brains of men and women are different. . . . [T]he nature and cause of brain differences are now known beyond speculation, beyond prejudice, and beyond reasonable doubt.

As a result, “There has seldom been a greater divide between what intelligent, enlightened opinion presumes—that men and women have the same brain—and what sciences knows—that they do not.” Therefore, they proclaim in frankness, “It is time to cease the vain contention that men and women are created the same."

And this one is especially interesting: 

Given that cultures are different and that male and female differences are demonstrated to varying degrees in different cultures, where would you imagine gender differences between male and female to be most pronounced?

In traditional, developing cultures, where men and women have to depend on each other for daily survival, where today’s food is collected, prepared, cooked, and consumed today?

Or . . .

In modern cultures that are more technologically, economically and politically advanced, where men and women have the resources and cultural freedoms to become and do what they desire?

It appears that when they enjoy greater freedom—financially, politically, and culturally—men become more stereotypically masculine and women more stereotypically feminine. This is, however, most true for women.

The New York Times summarized the findings of personality tests in more than 60 different countries and cultures: “It looks as if personality differences between men and women are smaller in traditional cultures like India’s or Zimbabwe’s than in the Netherlands or the United States.” The New York Times concludes: “The more Venus and Mars have equal rights and similar jobs, the more their personalities seem to diverge."

I'd also recommend UVA professor Steven Rhoades 2005 book, Taking Sex Differences Seriously, and Leonard Sax's Why Gender Matters? Additionally, this paper by Sister Prudence Allen, the learned philosopher and author of the three-volume series The Concept of Woman (Vol 3 available in November 2016), is very helpful as a historical-philosophical approach. She also has an excellent, clarifying chapter in Not Just Good, but Beautiful, the collection of presentations of the Humanum colloquium in Rome last year. 

The Holy Father has strongly opposed what he calls "gender ideology" in a number of documents, including Laudato Si and now Amoris Laetitia. Here is #56 in the latter:

Yet another challenge is posed by the various forms of an ideology of gender that “denies the difference and reciprocity in nature of a man and a woman and envisages a society without sexual differences, thereby eliminating the anthropological basis of the family. This ideology leads to educational programmes and legislative enactments that promote a personal identity and emotional intimacy radically separated from the biological difference between male and female. Consequently, human identity becomes the choice of the individual, one which can also change over time”[Quoting the Relatio Finalis, 2015]. It is a source of concern that some ideologies of this sort, which seek to respond to what are at times understandable aspirations, manage to assert themselves as absolute and unquestionable, even dictating how children should be raised. It needs to be emphasized that “biological sex and the socio-cultural role of sex (gender) can be distinguished but not separated”. On the other hand, “the technological revolution in the field of human procreation has introduced the ability to manipulate the reproductive act, making it independent of the sexual relationship between a man and a woman. In this way, human life and parenthood have become modular and separable realities, subject mainly to the wishes of individuals or couples”. It is one thing to be understanding of human weakness and the complexities of life, and another to accept ideologies that attempt to sunder what are inseparable aspects of reality. Let us not fall into the sin of trying to replace the Creator. We are creatures, and not omnipotent. Creation is prior to us and must be received as a gift. At the same time, we are called to protect our humanity, and this means, in the first place, accepting it and respecting it as it was created. 

I've shared some of my take on all this here at MOJ, and also in Mary Hasson's book, Promise and Challenge, from the first gathering of the Catholic Women's Forum. First Things is due to publish another article soon. 

Wednesday, April 13, 2016

Alice Paul: “Abortion is the Ultimate Exploitation of Women”

Yesterday, President Obama designated the “Belmont-Paul Women’s Equality National Monument” in Washington, D.C.  This is the building that not only served as the headquarters of the Women’s Party beginning in 1929, but was the home for such early leaders of political rights for women as Alice Paul.

AlicePaul_1901

Not surprisingly, while President Obama justly sang the praises of such giants in the struggle for human dignity as Alice Paul, the historical narrative was decidedly slanted to fit current liberal political themes.  Scrubbed from the historical record and never mentioned in President Obama’s speech was the courageous and consistent stance that Alice Paul took against abortion over the decades, speaking up when others promoted the Equal Rights Amendment and womens equality as supposedly linked to abortion “rights.”

Just a few months ago, Marjorie Dannenfelser of the pro-life Susan B. Anthony List wrote in Time magazine (here): “Many of today’s feminists see abortion as one of the touchstones of their movement. Yet many of the early leaders of the women’s suffrage movement in the U.S. believed that the rights of mother and child are inextricably linked and that the right to life and the right to vote are rooted in the inherent dignity of each human person.”

Alice Paul would have emphatically agreed.  Living until her 90’s and the 1970s, Alice Paul called it like it is, saying that “Abortion is the ultimate exploitation of women.”

McConnell on the Religious Non-Profits' (and Administrations) supplemental arguments

Mark Silk says that the religious non-profits "caved" in the contraception-coverage-mandate litigation.  I think he's quite wrong.  As Michael McConnell shows, here, the matter is far more complicated.  And, the latest round -- far from showing that the Little Sisters et al. were overreaching (or, as some persist in mistakenly insisting, distracted or pulled off course by their lawyers).  Conclusion:

On a highly polarized issue, the Supreme Court deserves credit for seeking a solution that protects the rights of religious parties under RFRA while still accomplishing the government’s goal of free access to contraception. The Little Sisters have always said they simply want to be left alone to carry out their good works without violating their religious beliefs. Their supplemental brief proves the point, showing that there is no inherent conflict between their religious beliefs and the government’s goals. The government’s brief seems to acknowledge the handwriting on the wall. Because it can use a less restrictive means to accomplish its interests, it must.