Prof. Robin West has posted a forthcoming and characteristically powerful paper, here, called "Freedom of the Church and Our Endangered Civil Rights: Exiting the Social Contract." She is responding to, inter alia, this paper of mine and this paper by Steve Smith. Here is the abstract of Prof. West's paper:
In this comment I suggest that the “Freedom of the Church” to ignore the dictates of our various Civil Rights Acts, whether in the ministerial context or more broadly, created or at least newly discovered by the Court in Hosanna-Tabor, is a vivid example of a newly emerging and deeply troubling family of rights, which I have called elsewhere “exit rights” and which collectively constitute a new paradigm of both institutional and individual rights in constitutional law quite generally. The Church’s right to the ministerial exception might be understood as one of this new generation of rights, including some newly recognized by the Court over the last two decades, some with a slightly older lineage, and some sought after but not yet won by litigants — the point of which is to exempt their holders from legal obligations which are themselves constitutive of some significant part of civil society and to thereby create, in effect, separate spheres of individual or group sovereignty into which otherwise binding legal norms and obligations do not reach. They are “rights to exit” civil society and the social compact at its core, or at least, rights to exit some substantial part of it.
All three papers are set to be published in a forthcoming volume, edited by Chad Flanders, Zoe Robinson, and Chad Flanders. In my own contribution, responding specifically to West, I write:
In Robin West’s bracing and eloquent chapter, she expresses serious concern by the asserted “right of churches and church-affiliated institutions . . . to be exempt, on grounds of institutional religious liberty, from some otherwise binding legal obligations, including the obligations to comply with the antidiscrimination mandate of our various Civil Rights Acts when hiring, promoting, or firing those of their employees who quality as ‘ministers.’” These obligations, she emphasizes, “are no small thing. . . . [They] collectively constitute, rhetorically, our shared societal commitment to rid our workforce and our schools, and therefore our larger social world as well, of discriminatory animus and the effects of that animus; they are a public declaration of our collective promise to become a less insulting, less hurtful, more inclusive, more fully participatory, more generous, and fairer society.” To violate these obligations is not only to harm an individual; “[i]t is also to break faith with and to undermine the shared national project of creating a world of equal opportunity and full participation[.]” In her view, “it is not at all clear why our nations ministers, rabbis, and imams . . . should not be drawn from the full and diverse American public . . . , no less than are our nation’s public and private school teachers, police forces, firefighters, professors, health-care professionals, service providers, and retail, factory and construction forces.” The ministerial exception, in her view – and, more generally, the proposed “freedom of the church” – is an example of a “newly emerging and deeply troubling family” of “exit rights . . . , the point of which is to exempt their holders from legal obligations which are themselves constitutive of some significant part of civil society, and to thereby create, in effect, separate spheres of individual or group sovereignty, into which otherwise binding legal norms and obligations do not hold.”
West’s indictment of my (and others’) position regarding the religious-freedom rights of religious institutions and the implications for government regulations of some of those institutions’ internal, doctrinal, educational, liturgical, ministerial, and expressive affairs is clearly and forcefully set out. Her negative evaluation of the position rests, though, on assumptions that I reject and that I also regard as not well supported in our history and traditions.
Notwithstanding her repeated invocation of “our” commitments, declarations, obligations, projects, and aspirations, West’s social contract—insofar as it is asserted to include terms that commit religious communities to submit internal decisions regarding doctrine and polity for approval by political majorities—is a contract of adhesion. The issue in, say, Hosanna-Tabor is framed in terms of efforts by would-be “miniature sub-cultural worlds” to “exit civil society, and the complex of laws, tradeoffs, and reciprocal rights and obligations that in turn constitute some aspect of our society’s legally constructed social contract.” As I see it, though, the question under consideration is precisely whether or not this “complex” and this “contract” can justifiably, and consistently with our Constitution, history, and traditions, be said to extent to the relationship between a minister and a church. When West says that “it is not at all clear why our nation’s ministers, rabbis, and imams . . . should not be drawn from the full and diverse American public,” part of the answer is that the “ministers, rabbis, and imams” are not “our nation’s”; they are their respective communities’ and it is up to those communities to decide how and from where they should be drawn. The “freedom of the church” claim is not that these institutions should escape from an obligation that expresses “our” commitment to equal opportunity or “communitarian ideals of inclusiveness, participation and integration” but that they cannot justifiably be said to be under an obligation to select their ministers, teachers, doctrines, and beliefs in accord with commitments other than their own.
In West’s chapter, she acknowledges that some exit rights, sometimes, “empower individuals to buck the dictates of an oppressive majority or an intrusive state.” “At least some of these rights,” she states – the right of the pregnant woman over body, for example – “may seem wise, at least to some of us, and at least some of the time: the parts of the social contract from which exit is sought and sometimes granted often appear to be, and may in fact be, foolish, draconian, or just witlessly intrusive.” Still, she insists, exit rights have costs—they can undermine equality and “splinter civil society”—and these costs should be but, she charges, are not acknowledged by those who explore and defend the “freedom of the church.”
As I tried to establish earlier in this chapter, though, it seems to me that the “freedom of the church,” reasonably understood and operationalized, does (or at least can) serve to “empower individuals to buck the dictates of an oppressive majority or an intrusive state.” It does (or at least can) serve, contrary to West’s claim, to “enhance individual liberty within civil society by expanding or deepening the rights of individuals to participate in that society.” It is true that seeing and respecting the just limits on the political authority’s ability to define, and enforce compliance with, “our” commitments and obligations does have, sometimes, costs, in that some projects that a majority, or maybe just a vanguard, would like to pursue cannot be accomplished efficiently or completely. West sees this fact as, sometimes, “tragic” and I agree that sometimes it is. Still, these just limits are morally necessary and attractive, and they include, in my view, limits on the regulatory power of governments over the “freedom of the church,” rightly understood.
Tuesday, April 28, 2015
My remarks at the Ninth Annual Scarpa Conference were a (mostly) connected series of reflections on how it might matter to the Mirror of Justice project that the blog is constituted by the contributions of (mostly) Catholic legal theorists.
I can’t do justice with the written word to the content of my oral reflections—which began, not incidentally, by appealing to the conference attendees’ mercy. But if I had to relate my primary theme to a contemporary pop song, I would use “Glass” by Thompson Square.
The title “Mirror of Justice” is a traditional Marian appellation. Mary, Mother of Jesus (the original “MOJ”), reflects the Sun of Justice, God.
My basic claim (in law professor speak) is that our public participation in the life of the Church, too, can serve through God's grace to illuminate matters for others, if we cooperate. My organizing text was an excerpt from from Pope Benedict XVI’s Introduction to Christianity:
Augustine relates in his Confessions how it was decisive for his own path when he learned that the famous philosopher Marius Victorinus had become a Christian. Victorinus had long refused to join the Church because he took the view that he already possessed in his philosophy all the essentials of Christianity, with whose intellectual premises he was in complete agreement. Since from his philosophical thinking, he said, he could already regard the central Christian idea as his own, he no longer needed to institutionalize his convictions by belonging to a Church. Like many educated people both then and now, he saw the Church as Platonism for the people, something of which he as a full-blown Platonist had no need. The decisive factor seemed to him to be the idea alone; only those who could not grasp it themselves, as the philosopher could, in its original form needed to be brought into contact with it through the medium of ecclesiastical organization. That Marius Victorinus nevertheless one day joined the Church and turned from Platonist to Christian was an expression of his perception of the fundamental error implicit in this view. The great Platonist had come to understand that a Church is something more and something other than the external institutionalization and organization of ideas. He had understood that Christianity is not a system of knowledge but a way. The believers’ ‘We’ is not a secondary addition for small minds; in it a certain sense it is the matter itself—the community with one’s fellowmen is a reality that lies on a different plane from that of the mere ‘idea’. If Platonism provides an idea of truth, Christian belief offers truth as a way, and only by becoming a way has it become man’s truth. Truth as mere perception, as mere idea, remains bereft of force; it only becomes man’s truth as a way that makes a claim upon him, that he can and must tread.
Thus belief embraces, as essential parts of itself, the profession of faith, the word, and the unity it effects; it embraces entry into the community’s worship of God and, so, finally the fellowship we call Church. Christian belief is not an idea but life; it is, not mind existing for itself, but incarnation, mind in the body of history and its “We”. It is, not the mysticism of the self-identification of the mind with God, but obedience and service going beyond oneself, freeing the self precisely through being taken into service by something not made or thought out by oneself, the liberation of being taken into service for the whole.
I am, of course, no Marius Victorinus. (Assuming, that is, that he was all he was cracked up to be. One critic has suggested that “Victorinus acquired for a long time a reputation hardly merited by his contributions to learning, which did not rise above the mediocrity of the period.” W.S. Teuffel, History of Roman Literature, Eng. Tr., ii., pp. 337 f., quoted in F.F. Bruce, Marius Victorinus and His Works, The Evangelical Quarterly 18 (1946): 132-53. That may be a more attainable resemblance, however unfair it might be to Marius Victorinus.)
Whatever our abilities, we can reflect the divine light in various ways. And we should try. We may not be the perfect mirror, like Mary, but we can let light shine through even if refracted or broken up in various ways. Sort of like this guy (even if not as intensely or brightly):
I concluded my Scarpa Conference reflections by observing that "We are fragmented; we are broken. We are not the light, but we can come together and reflect the light ... even if we could always use more polish."
Echoes of this understanding could then be heard in the closing prayer that the conference presenters offered up in a reflection session led by Susan Stabile. That prayer, by Cardinal John Henry Newman, included the request: "Stay with me, then I shall begin to shine as you do, so to shine as to be a light to others. The light, O Lord, will be all from you; none of it will be mine; it will be you shining on others through me. Let me thus praise you in the way you love best, by shining on those around me."
As I conclude this post, it is appropriate to acknowledge its difference in tone and emphasis from almost everything I have posted in the past. I more often stick to the safer path of arguing about the law, and that is typically of more interest to the internets anyway. One of the challenges of opening up a little window into the ideals and inspirations I have as I blog about legal topics from a Catholic perspective is an awareness of how much I fall short of those ideals and inspirations. Linking myself up to them publicly risks lowering these ideals and inspirations through association with my imperfect embodiment of them. Through a slight remix and transposition from the love song that it is to a message from me to the internet, it is perhaps fitting to conclude with some lyrics from "Glass":
We might be oil and water, this could be a big mistake,
We might burn like gasoline and fire,
It's a chance we'll have to take.
* * *
I'll let you look inside me through the stains and through the cracks
And in the darkness of this moment you see the good and bad
But try not to judge me because we walk down different paths
But it brought us here together so I won't take it back
* * *
We may shine; we may shatter; we may be picking up the pieces here on after.
We are fragile; we are human; and we are shaped by the light we let through us.
And we break fast, 'cause we are glass.
'Cause we are glass.
Monday, April 27, 2015
Here is a very good opinion piece by my local bishop, Bishop Kevin Rhoades, on the recent controversy in Indiana surrounding the enactment, and quick revision, of a RFRA-type law. (I weighed in here and suggested, among other things, that critics were misunderstanding or misrepresenting the law's content and probably effects.) Bishop Rhoades writes, among other things:
Where does the Catholic Church stand? I think it is important to recall the important teaching of the Second Vatican Council in its Decree on Religious Liberty. It declares that “the human person has a right to religious freedom. Freedom of this kind means that all people should be immune from coercion on the part of individuals, social groups and every human power so that, within due limits, nobody is forced to act against his or her convictions nor is anyone to be restrained from acting in accordance with his or her convictions in religious matters in private or in public, alone or in associations with others. The Council further declares that the right to religious freedom is based on the very dignity of the human person as known through the revealed word of God and by reason itself. This right of the human person to religious freedom must be given such recognition in the constitutional order of society as will make it a civil right.” The Council further teaches that “the exercise of this right cannot be interfered with as long as the just requirements of public order are observed.”
The Church believes and teaches that the right to religious freedom is founded on the very dignity of the human person. It is not an “absolute” right in that there are “due limits” and “just requirements of public order.” It seems to me that the RFRA laws are in accord with this teaching of the Church. They seek to protect our religious liberty, while also allowing for exceptions when it comes to a “compelling government interest,” since the Church also speaks of “due limits.” The “common good” would be such a limit. . . .
Without giving away too much about the title of Marc's post, "Unde Origo Inde Salus," I thought I would pass along something I meant to mention in passing during my Scarpa Conference talk, but did not. The missed moment came in my discussion of some quotations from Redemptoris Mater, which I noted on my slide was promulgated on March 25, 1987. As it turns out, March 25 was also the date of oral arguments in the Hobby Lobby and Conestoga Wood cases. I will leave it to others to judge what connection (if any) there may be between those arguments and the first joyful mystery of the rosary. For whatever it's worth, it probably has nothing to do with anything that twenty-seven (the number of years between Redemptoris Mater and Hobby Lobby/Conestoga oral arguments) is a perfect cube.
A wonderfully interesting post on the cultural and religious life of Venice by my colleague and partner in crime, Mark Movsesian. A bit from his post:
I’ve been thinking a great deal about Venice, lately, ever since I visited last month to participate in an international law and religion moot court competition. In its glory, Venice was a city devoted to commerce. Just as in today’s New York, you could find anything for sale. The city pioneered credit-financed capitalism and grew fabulously wealthy on trade with Byzantium and the Levant. And, as Voltaire’s theory would suggest, the Venetian Republic was quite tolerant of religious difference, especially for the time. The city had significant colonies of eastern Christians like Greeks and Armenians; Lutheran Germans; Muslim Turks; and of course Jews. All made fortunes trading peaceably in Venice.
And yet, as I learned, Venice had a compensating commitment to tradition. The city balanced devotion to the fluid world of commerce with an equal devotion to the static world of custom. As Peter Ackroyd explains in his marvelous book, Venice, Pure City (2009), Venice was “the most conservative of societies.” In law and government, ancient usage had preeminent authority, more than positive legislation. Social interactions followed patterns that did not change. For example, strict rules limited what different classes could wear. Patricians wore stiff black gowns, which highlighted gravity and authority, not flexibility and cosmopolitanism. In architecture, generation after generation followed old models. When buildings collapsed, Venetians would reconstruct them exactly as they had been, often using the same materials. Come era, dove era.
And Venice was exceptionally religious. The city’s enthusiastic participation in the Crusades is well known, and was always a matter of great pride. One could dismiss Crusading as a search for more loot, but for Venetians it was more than that. Venetians were genuinely devout, perhaps excessively so. Hundreds of churches shared a very small space; religious processions were numerous and frequent. Reports of miracles were common; only Rome had more. This is not to say that Venetians were saints. They never lost sight of the main chance. But Catholicism was a centerpiece of their identity. Ackroyd sums it up best: “Machiavelli wrote that ‘we Italians are corrupt and irreligious beyond all others.’ That was not true of the Venetians. They were corrupt and religious.”
See the rest of Mark's post for the meaning of the title of this one.
Sunday, April 26, 2015
Rick's tour de force in summarizing the presentations at Friday's Scarpa Conference at Villanova conveys a sense of why we are all so grateful to Patrick Brennan for bringing us together. However, he stopped blogging too soon. The most dramatic event was the dinner afterwards, when Patrick and John Breen almost came to fisticuffs over whether Evelyn Waugh's Brideshead Revisted, or Graham Greene's The Power and the Glory, is the quintessential Catholic novel. (Susan Stabile tried to broker a compromise with Dostoevsky's Brothers Karamozov, but she didn't make much headway.)
So we're suggesting a virtual summer book club. Some of us may read, or re-read, (or watch the movie versions of) any or all of those three books over the summer, and post our thoughts. The winner (if one emerges) will get to hear Michael Scaperlanda's defense of Godfather III as the best of the Godfather movies......
