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.

Sunday, March 2, 2014

Lawler, Douthat, and Loyola on "Catholic and American" and "The Terms of Our Surrender"

A trio of articles or commentaries worth reading and thinking about:

Over at First Things' First Thoughts, Peter Lawler responds to Patrick Deneen in a post titled "Catholic and American (and Quirky About It)." In response to what he calls Deneen's "real divide" essay on American Catholic thought, Lawler distinguishes himself from other thinkers in what Deneen has described as the Murray/Neuhaus/Weigel school (as compared with the MacIntyre/Schindler school).  

In the New York Times, Ross Douthat has an op-ed titled "The Terms of Our Surrender." Douthat sees in the "mendacious and hysterical" coverage of Arizona SB 1062 the ascendancy of the equation of opposition to same-sex marriage with opposition to inter-racial marriage.

Catholic Education Daily has a news item on Loyola (Chicago's) policy on the use of campus facilities for weddings and wedding receptions. Loyola's policy is that only Catholic weddings may be held in the Catholic chapel, and no weddings may be held elsewhere on campus, but there are no religion-based limitations on wedding receptions.

Remembering "the real Bob Casey"

It's hard for me to believe, but we are approaching the fourteenth anniversary of the death of Robert P. Casey, Governor of Pennsylvania, and the last of the great pro-life Democrats on the national scene. I fear that we shall not see his like again.  Here is a link to my tribute to the Governor which was published by First Things shortly after he died in 2000.

http://www.firstthings.com/article/2000/08/remembering-robert-casey

Saturday, March 1, 2014

Bigotry, Discrimination, Teaching, and Catholic Thought

 

A number of my friends here at the Mirror of Justice have recently addressed a variety of issues (e.g., the Arizona RFRA-styled legislative proposal just vetoed by the governor; new articles and editorials in America magazine discussing laws that are “crimes” and the Church’s attitude toward same-sex attraction and sexual activity; religious freedom; the role of government and law in society; etc.) dealing with the pressing questions that provide forums for the presentation of differing views on human sexuality and the legal protection that these views merit or may merit. A subtext pertaining to these issues from a legal perspective is the political idea and ideal of equality and the reality of equality. A further subtext is the role of religion—particularly Catholicism—in these issues and the discussions and debates that surround them.

It is assumed by some participants in the current political and academic debates on these matters concerning human sexuality that any difference in treatment or status between same- and opposite-sex is prima facie unlawful because it is discriminatory. But the notion of discrimination needs to be considered carefully so that it is understood accurately by society in general and by the law in particular. This is where the vocation of teaching and the discipleship based on Catholic thought have a crucial role to play.

The teachings of the Catholic Church condemn discrimination that is unjust (that’s a big modifier that will need more attention somewhere else, perhaps in another posting at this website). Why does the Church use in her teachings this crucial modifier? It would be illogical to condemn all discrimination across the board because human civilization and human nature rely on proper, i.e., just, discrimination. Those of us who are or who have been teachers discriminate in many ways. We discriminate in the evaluation of faculty candidates when we hire some but not others. We discriminate when we make substantive distinctions between and among student papers and final exams. We discriminate when we exercise our role in faculty governance by deciding which proposals before us we accept and which we reject. But these discriminations are not unjust because they are warranted, or should be, by substantive merits or their absence. In spite of some student protests, not all students will receive an A. Despite their aspirations, not all candidates for faculty positions will be offered teaching posts.

Yet, discrimination is not restricted to the world of the academy. Discrimination is exercised legitimately throughout human civilization when people make decisions about what cut of meat they can afford at the super market, or how big of an addition to their home will their budget permit, or how large a contribution, if any, can they make to alma mater. The list of discriminations that are admissible, perhaps even meritorious, goes on and on.

Nonetheless, some participants in the present day disputes concerning human sexuality press the argument that any difference of treatment between same-sex-this and opposite-sex-that is unlawful because some people are being treated differently from others. Therefore, such differing treatment is discriminatory and may very well be based on bigotry.

But this is not so because these claims are untrue.

They are untrue because the objective intellect, not political will and the might that often accompanies the will, comprehending the reality of the nature of the human person, human physiology, and biological differences can demonstrate that there are dispassionate distinctions separating and distinguishing the worlds of same-sex and opposite-sex. It is not bigotry to make this claim. Neither is it religious or other superstition. Rather, it is reality grasped by the objective and impartial intellect that makes and supports the distinction. But in the minds and resulting positions of some, the reasoned distinctions made between same-sex and opposite sex are impermissible because they are, from the outset, “bigoted” or “unlawful” without the need for further comment or justification.

This last point describes a vast element of the political and, therefore, legal world that we inhabit today and the supporting mentalities that faithful Catholics encounter that are forcing a dramatic and perilous change in the law and civilization. Thus, it is the duty of the Catholic teacher who remains true to the faith to point out with reason, with humility, with respect, and with resolve that this that claims about unlawful discrimination based on different treatment between same-sex and opposite-sex are wrong. It may well be that the time for the faithful Catholic teacher to pursue this responsibility is growing short, but the duty remains as long as these overwhelming errors persist. This duty can and should be welcomed where authentic dialogue exists. However, another hallmark of the present age is the attitude that relies largely on the success of one’s position, not because of reasoned argument but because of political clout and little else.

 

RJA sj

"Bigotry" v. "Sincerely held religious belief"

In the course of the conversations, debates, arguments, etc., about the recently vetoed Arizona RFRA proposal specifically, and exemptions from antidiscrimination laws generally, the questions are sometimes posed (a) whether a particular action reflects or is motivated by "bigotry" or by "sincerely held religious belief" and (b) whether there's really a clear line between the two.

We could say, I suppose that "bigotry" is just the word we attach to motivating premises and beliefs that seem particularly offensive or insufficiently rational or connected with reality.  If we say this, then the line separating "bigotry" from "sincerely held religious belief" is not clear at all.  Or, we could simply declare that an otherwise "bigoted" (under definition) action will *not* be labelled as "bigoted" if it reflects a certain kind of insufficiently rational belief, i.e., "sincerely held religious belief."  But, this would simply be a declaration, an ipse dixit of sorts.

I'm not sure we should invest too much time or energy in trying to distinguish sharply  -- for purposes of the typical liberal political community's antidiscrimination laws -- between conduct that is motivated by "sincerely held religious belief" and conduct that is motivated by "bigotry."  It seems to me a better approach might be to start with this question:    "When, if ever, should we accommodate or tolerate conduct that (i) the political community has decided, for reasons that it thinks sufficient and appropriate, to prohibit and (ii) is motivated by sincerely held religious belief?"  

Of course, we could say "never", but I don't think we should (because we are committed, for now, to some form of religious liberty.  We could say, "we should accommodate, unless the conduct is motivated by 'bigotry.'"  Instead, maybe we should just say "we should tolerate or accommodate otherwise prohibited conduct that is motivated by sincerely held religious belief if it is possible to do so reasonably efficiently and without undermining the policies or values that underlie the prohibition or regulation."  The "without undermining" inquiry is hardly cut-and-dried, but I think it could be done without trying to cull through "religious" motivations and separate them from "bigoted" ones.  Thoughts?

Paul Caron on faculty scholarship at faith-based law schools

This presentation and paper, by uber-law-blogger Prof. Paul Caron (Pepperdine) looks really interesting:  Faculty Scholarship at Faith-Based Law Schools: Long Tails, Moneyball and Rankings in a Time of Crisis.  Quoting Paul:  "I argue that religious law schools are uniquely positioned to thrive in the midst of the law school crisis because our faith-fueled commitment to our students and to each other empowers us to better define the pathways to success for our schools, our students, and our faculties and equips us to make that journey together."

On the Pain of Discrimination and the Role of Law and Government (Part One)

I’ve been encouraged to post to the Mirror of Justice some more of my posts to the ReligionLaw list, this time in the ongoing debate among legal scholars about the proper balance (if any) between enforcing statutes prohibiting discrimination based on sexual orientation (and other bases) and protecting religious liberty.  Some have argued that the law is properly used to protect everyone against the pain of discrimination, even when goods and services remain readily available from others and thus there is no concrete harm being addressed, and further that no religious liberty exemptions should be permitted.  Below is the beginning of my response:

 

In reading several messages poignantly describing the pain of suffering discrimination, I was reminded of something that I observed on the streets of a major American city to which I was traveling.  On a major downtown pedestrian thoroughfare, two young people, looking to be in their early twenties, were handing out flyers and trying to engage passers-by in conversation.  Their t-shirts, leaflets, and spoken words readily identified them as evangelical Christians preaching the Gospel.  Their persistence in the face of a rather disdainful audience, as well as the tone and message, confirmed that they were speaking from the heart and acting in furtherance of what they understood to be a genuine calling to share good news with others.

The response was anything but receptive; indeed, it was, no two ways around it, frequently hostile and, yes, bigoted.  While most of those walking by simply ignored the two or gave them a cold stare as they passed, several made derogatory remarks, laughed or jeered loudly, or even told them to “[epithet deleted] off.”  No one physically accosted the two, and the comments did not provoke any violence, so I don’t think it could be called disorderly conduct.  But the targeted response was despicable in manner.

The two evangelists never responded in kind, instead saying “God bless you” or “Jesus loves you” to each person.  But it was plain that the hostile treatment left its psychological mark.  The young woman, who I am guessing was the veteran at street ministry, seemed less impacted.  But the young man was shaken, as I could tell from his mannerisms, what looked to be tears in his eyes, and the quaver that appeared in his voice after he received a particularly vituperative comment.

Now what these two evangelical Christians experienced was plainly “discrimination.”  And it was blatant and invidious discrimination.  The remarks were not merely negative and disrespectful, but many were hateful and cruel.  And the basis for the discrimination plainly was their religious identity and message.  In the words of more than one poster to this list over the past day, these two were suffering an injury to their dignity, the pain of rejection, and the shame of stigma based on their identity.

Despite the undeniable fact that these two were the victims of discriminatory treatment and that they plainly felt the sting of that discrimination, I am guessing that all or most on this list will agree with me that it would be inappropriate to use the power of government to prevent such unfortunate behavior in the future or to pass a law that would compel those who pass by to treat evangelists with respect.  And I think that choice to refrain from use of government and law is correct for at least two reasons.

First, a legally binding directive to treat evangelists – or for that matter others who present a message – with respect, or instead a government regulation that induces such respect at the cost of some type of sanction or withheld benefit, would be difficult to separate from an improper government endorsement of the message at issue.  At the very least, legal action would put the heavy thumb of the government on the side of refraining from expressing opposition or indifference to a value-laden message.

But, second, it simply is not the proper role of government to enforce standards of courtesy or to wield legal power (as contrasted with appropriate exercise of persuasion) to shape human interactions.  I definitely assert a moral right to be treated with dignity, but I do not have a legal right in a free society to demand that other private citizens extend such courtesy to me or even refrain from being discourteous.  (By statute, of course, I do have the right to object to even private discrimination on certain grounds when it denies me the necessary tools for educational and economic opportunity.  That’s something on which I’ll comment more later – but this post is already too long.  My specific point here is that the real pain of discrimination alone, unaccompanied by something concrete like an economic deprivation, is like other failures in human behavior that are not properly the subject of government and where the imprudent use of law often transgresses the fundamental rights of some while attempting to address the grievances of others.)

Instead, it belongs to all of us, with personal commitment, through investment of time and talents, by telling our stories, and in how we live our lives, to enhance human dignity.  We should resist the temptation to delegate that responsibility to government, through its use of power or its imposition of laws and liabilities.  In a free society, we do not empower the government to shape our souls.  That remains our job as the people.

Movsesian on the Rise of the Nones

My colleague, Mark Movsesian, has a very interesting paper on the growing importance of the "Nones"--those who claim no religious affiliation at all but by and large are neither atheists nor agnostics. Rather, the Nones reject institutional religious belief. As Mark puts it, "A better term for them might be religious 'Independents,' or the familiar 'spiritual but not religious.'" The paper considers some of the legal ramifications of "none-ism," including the relationship between group status and legal protection. Here's the abstract.

The most important recent development in American religion is the dramatic increase in the number of people who claim no religious affiliation — the rise of the Nones. In this Working Paper, I discuss the social factors that explain the rise of the Nones--demography, politics, family, technology, a distrust of institutions generally--and explain what this development might mean for the definition of religion in American law. I focus on a recent federal appeals court case involving a self-styled spiritual adviser, “Psychic Sophie,” who claimed that following her “inner flow” constituted a religion meriting constitutional and statutory protection. I argue that the case is a close one. Protecting Nones as a religion would promote the important goals of state religious neutrality and personal autonomy. On the other hand, religion has always been understood in terms of community. Indeed, as Tocqueville saw, it is precisely religion’s communal aspect that makes it so important to liberal democracy. Granting Nones the status of a religion would fail to capture this important social benefit.

Friday, February 28, 2014

How an ancient Greek awakened an undergrad from his dogmatic slumbers

Recently Cornel West and I visited Swarthmore College, where I received my undergraduate eduction, for a day of conversations on the theme "The Bond of Truth-Seeking."  Following our visit, I was interviewed by Victor Gomes, a student at the College, for the campus newspaper The Phoenix.  The interview has now been published under the title "Swarthmore at Its Best."

In case the interview might be of some interest to MoJ readers, here are some excerpts, followed by a link to the complete interview. Victor began by asking about my backround and beliefs when I arrived at the college in the mid-1970s, and how they changed. Here are some bits of my reply: 

. . . . Like my peers, I wanted to be sophisticated and enlightened—and to be regarded by others as sophisticated and enlightened.  So a lot of what I believed simply as a matter of tribal loyalty was reinforced by a tendency to adopt views that conformed to the beliefs of what the late Irving Kristol dubbed “the knowledge class”—professors, elite journalists, and the like.  With the exception of abortion, which I had thought about a lot, I hadn’t really thought myself into the positions I held.  Rather, I had taken the short cut:  I was content to believe what I thought sophisticated and enlightened people believed, or at least were supposed to believe.  I simply, and rather unselfconsciously, assumed that an approach of that sort would reliably place me on the correct side of the issues.  And, of course, it would give me access to a world I wanted to enter more fully—the elite world of important people who really counted and made a difference.  If I got the right credentials, beginning with a Swarthmore degree, and held the right views, I could be someone who mattered.  It was then, as it is now, a common motivation for students at elite colleges and universities.

I wasn’t completely blind, though, to problems on the left.  I saw cases—they could scarcely be missed—of self-indulgence masquerading as principle or courageous defiance of social norms. And I was not entirely comfortable with the harder leftward turn being taken by the liberal movement and the Democratic Party in the 1970s, especially on what we now call “social issues.”  The movement and the Party were becoming quite unlike what they were when their leaders were people like Roosevelt, Adlai Stevenson, and Hubert Humphrey. Still, I was a partisan Democrat and a loyal center-left liberal.  I attended the 1976 Democratic National Convention as an alternate delegate and was happy with the nomination of the moderate Jimmy Carter and the liberal Walter Mondale as the Party’s national ticket.  But even then, I was in the midst of a major rethinking of, well, everything.  The triggering event was one I mentioned at the Collection with Professor West.  I had encountered Plato’s dialogue Gorgias in a political theory course taught by Professor Sharpe.  It made me realize that I hadn’t actually been thinking much at all.  I had views, but I was scarcely entitled to them. I was a skilled debater, but skilled in talking for victory, not for truth. I regarded my interlocutors, especially those with whom I had partisan or ideological differences, as adversaries, not as partners in the quest for knowledge and wisdom.  My arguments did not reflect any actual thinking that had gotten me to where I stood on this issue or that; rather, they were offered as justifications for positions I held for all sorts of questionable reasons:  tribal loyalty, personal preference, applause, the wish to be and be seen to be sophisticated, the desire to fit in with others at the College and in elite sectors of the culture generally.

My views did not change overnight—though my attitude did.  But they did change. At least they changed on some pretty important issues.  By 1980, five or so years after my encounter with Plato, people to my left started describing me as a “conservative.”  It took me another decade to accept the label—and even then I accepted it only grudgingly.  Tribal loyalties (and labels) are even less easily abandoned than they are acknowledged.  In some cases, what changed was not my view of the ends that ought to be pursued, but rather the best means for pursuing them.  Observing, first with concern and then with anxiety, what was happening in my native Appalachia, I grew skeptical of the general approach to fighting poverty that had traditionally been favored by the Democratic Party.  It became clear to me that what were needed were fewer direct government anti-poverty initiatives and greater efforts to support and rebuild institutions of civil society.  I saw happening in the hills and hollows of central and southern West Virginia and eastern Kentucky what had been happening in places like inner city Detroit.  And well-intentioned policies seemed to be making the situations worse rather than better.  Trying honestly and dispassionately to think my way through things, I found myself increasingly impressed by what I was reading by “conservative” writers such as Irving Kristol, Daniel Patrick Moynihan (who, when he wasn’t holding a pen in his hand, remained a liberal Democrat), and James Q. Wilson.  To my surprise, I found greater insight and wisdom in The Public Interest than in the New York Times or Dissent.  It was a bit unnerving—since I did not know where this train was taking me—but also exhilarating.  I was being persuaded by arguments, and I was beginning to think critically and for myself.  The desire to “be sophisticated” and to “fit in” with my peers and other “enlightened” people no longer mattered to me.  I was free.

On reflection, my religious beliefs strengthened and became both more orthodox and more ecumenical. That might seem paradoxical from a liberal secularist viewpoint, but won’t seem at all odd to people who know what the Catholic Church actually teaches in, for example, the documents on religious liberty, ecumenism, and the world’s religions of the Second Vatican Council.  My pro-life convictions also strengthened, as my understanding of the arguments on competing sides deepened, and I found myself embracing a more conservative set of ideas on other moral and social issues, as well.  Thinking about abortion and infanticide (Michael Tooley had published his famous article linking and defending the two practices just before I arrived at Swarthmore), I eventually came also to reject euthanasia and the death penalty.  The last of these positions did not endear me to my new conservative allies, but I had long since stopped caring about anything other than whether the weight of reason and argument supported a position or failed to support it.  The idea that one would hold a belief, or not consider changing a belief, out of partisan or tribal loyalty no longer had purchase with me. . . .

http://www.swarthmorephoenix.com/2014/02/27/swarthmore-at-its-best-an-interview-with-robert-george/

SCOTUSblog symposium piece on the Hobby Lobby case

My contribution (and it's just one of a bunch) to the SCOTUSblog symposium on the upcoming Hobby Lobby case is here.  Here's a bit:

The Religious Freedom Restoration Act does not reflect a mistaken or naïve view that religiously motivated conduct is always praiseworthy or that religious actors always prioritize the common good.  Sometimes, generally applicable laws need to remain generally applicable.  Sometimes, fair and practicable accommodations are not possible.  Sometimes, parties invoking RFRA will and should lose.  But, sometimes they should win – whether they are institutions or individuals and whether they are engaged in worship, social service, or art-supplies sales. The Act says, for all of us, that religious freedom matters, that it matters to policy winners and losers alike, and that if we can accommodate religious believers’ practices and objections, then we should.

A New Stance on Homosexuality?

That question was in the subject line of an e-mail I received this afternoon from the Jesuit magazine America.  The reference, it turned out, was to an article, in the new issue, by John Langan, S.J., who is the Joseph Cardinal Bernardin Professor of Catholic Social Thought at Georgetown University.  The article--which is titled See the Person:  Understanding Pope Francis' Statements on Homosexuality--will be of much interest to many MOJ readers (and bloggers).  As Larry Solum says:  Highly Recommended!  The article is available here.

_________________________

A related piece in the same issue--an editorial, titled When the Law is the Crime--is here, arguing vigorously that "supporters of traditional marriage must denounce unjust discrimination against homosexuals."  An excerpt:

"It is especially disturbing that such legislation is immensely popular in predominately Christian countries like Uganda, where 40 percent of the population is Roman Catholic and the Catholic bishops have sent mixed signals about the legislation. When the bill was first considered in 2009, Archbishop Cyprian Lwanga of Kampala, speaking on behalf of the Catholic bishops’ conference, said it was 'at odds with the core values' of Christianity. When the bill was reintroduced in 2012, however, the Uganda Joint Christian Council, which includes Catholic, Anglican and Orthodox bishops, expressed support for the bill. Archbishop Ignatius Kaigama of Jos, Nigeria, meanwhile, has praised President Goodluck Jonathan for his 'courageous and wise decision' to sign the new law in that country."