Thursday, February 13, 2014
Hard to believe that MOJ is now ten years old. Like any parent or relative on such an occasion one can’t help but look back in a wistful, quizzical glance and ask “Where did the time go?!”
Yes, MOJ has been online for ten years, offering posts on law, politics and culture – from the sublime (e.g. the nature of heaven) to the ridiculous (e.g. Duke basketball – thanks Rick!) and everything in between, all from a Catholic perspective, with a special eye toward Catholic social teaching.
Most of us are not so gifted that we can address every subject with equal grace or mastery and that is certainly true in my case. While I have attempted to address a variety of topics most of my posts on MOJ have tended to focus on the abortion issue.
My first post on MOJ was on July 24, 2004, and was (fittingly enough) entitled Happy Birthday. I wrote the piece just as my wife Susan and I were about to host a party celebrating our son Peter’s third birthday. As I explained in the post, I wrote it in part as a response to comments by Rob Vischer and Mark Sargent “concerning [a] story in the NYT regarding [a] woman who chose to abort two of her three children” in the same pregnancy.
Paraphrasing and elaborating on what I said in that earlier post, I can say (again) that, as the father of two children through adoption (Peter and Philip), everyday I thank God on my knees that their birthmother had the courage, love and determination to give them life – to carry them to term, and to place them with a loving family. If circumstances had been perhaps only slightly different – had she lacked the tremendous resolve and strength of heart that she possessed – then she may have been persuaded to follow another path; she may have made another “choice.”
Had this happened, had she made another choice, I am not so naïve or self-delusional as to think that no life would have been lost. It’s not as if these children wouldn’t have been rightly seen as human beings deserving of respect and protection. It’s that they would have been dead human beings. And the world would have been a much poorer place for it. The unique, beautiful, unrepeatable human beings that they are would have been lost to oblivion, surrendered to the mercy of God, and we the living would have diminished our own lives far more than theirs, since “it is better to suffer injustice than to commit it” (Gorgias 474-475).
Of course millions of children are not so fortunate. The tragedy of abortion takes place thousands of times a day resulting in over 1 million abortions per year in the United States and over 25 million annually world wide (see here).
Mindful of the fact that women face many pressures when confronted with an unexpected pregnancy, and with compassion toward mother and child, the Church opposes this slaughter of the innocents. The humanity of the unborn and the dignity owed to every member of the human family demands as much
As the CDF stated in its Declaration on Procured Abortion Quaestio de abortu: “From the time that the ovum is fertilized, a life is begun which is neither that of the father nor the mother; it is rather the life of a new human being with his own growth. It would never be made human if it were not human already” (see ¶ 12).
Here she proclaims that essential truth that the life of every human being is intrinsically valuable – that his or her life is of infinite worth, for you are “wonderfully made” (Psalm 139:14). Here the Church not only seeks to protect nascent human life with justice but to welcome the new member of the human family with love. “It’s good that you exist; it’s good that you are in this world!” (see here p. 164).
At the same time, it must be seen that this regard for justice is not a religious belief, let alone a specifically Christian or Catholic one. Yet it is the Catholic Church, especially in recent times, who has been the guardian and faithful herald of this truth in the public square.
I would explain the significance of this with respect to MOJ and the project of Catholic legal theory as follows.
At the first Catholic Legal Thought gathering of law professors that took place at Fordham Law School in June 2006, Kenneth Himes explained what he took to be one of the defining features of the Catholic social tradition (as opposed to the wider Catholic moral tradition) – that it addresses those social problems involving “institutions,” including but not limited to the market and consumerism, the treatment of workers, and the relationship between labor and capital, and war and peace, and international relations. He further explained that the reason why many scholars of Catholic social teaching did not include documents like Humanae Vitae and Evangelium Vitae within the canon of CST is that they involved decisions of individual morality – personal decisions rather than institutions.
I have always found this explanation wanting.
The whole apparatus of prenatal murder – scheduled by appointment, covered by insurance, subsidized by the state, encouraged by the media (as well as the beliefs and attitudes that inform these behaviors) – are an enormous structure of sin (See here). The practice of abortion in this country and world wide is just as “institutional” in character as the defects in the immigration system, overconsumption and its effect on the environment, and difficulties involved in determining what constitutes a “just wage” and seeing that workers receive it.
Indeed, I would go further and suggest that the teaching of the dignity of the life of every human being – from fertilization to natural death is the cornerstone of everything else. This is at the foundation of whatever else Catholic social teaching has to offer in terms of legal critique, and that if this point is missed then none of it – none of it – makes any sense. It is a gong booming or a cymbal clashing.
Insofar as MOJ has kept this message before the minds of those who would consider CST a worthwhile way of critiquing the culture and law then it has been a success and one that I hope will continue for many years to come.
As I reflect on the significance of a decade of discussion regarding Catholic legal thought, I approach the endeavor from a slightly different perspective than many of the previous posts (most of which are summarized nicely here). Unlike many of my colleagues, I am relatively new to blogging with MOJ (under two years) and do not have the same institutional memory as many of them.
My reflections, therefore, have drawn me toward thinking about those on the outside: the MOJ audience and the manifestation of Catholic legal thought on the front lines.
Regarding the audience, I share Michael's thoughts on the importance of MOJ to the practitioner or the young academic. I graduated from a Catholic law school saddened by the lack of guidance it offered students regarding Catholic legal thought, uniquely Catholic intellectual experiences, or even the interplay of faith and law in this vocation called lawyering. It seemed to me that a career - which, by definition, seeks to help people, businesses, and governments negotiate through some of their most difficult times - would demand training on how to negotiate the moral and personal issues that flow from such a vocation. Therefore, having this forum where legal issues of the day are discussed through a lens of Catholic legal theory fills a gap too often left by secular legal education.
Regarding the front lines – I had a recent experience in which the importance of Catholic legal education became very apparent. Last week I had the opportunity to give a keynote presentation to a group of international lawyers participating in a State Department program regarding "Children in the United States Justice System." The audience was a group of international judges and lawyers from throughout the world who were working in various capacities with victimized and vulnerable women and children. They were from countries as diverse as Finland, Guyana, and Japan. Needless to say it was an impressive group of professionals working on very challenging issues in their courts, trying to protect children, and trying to make systemic changes. The dedication to this important work was apparent as many of them were from countries without the resources of the United States and working under difficult conditions.
Many of them took the time to mention to me during the day that they were graduates from one of their country's Catholic universities. They mentioned it with such pride and suggested that they were offered the information to forge a connection with one another on their shared mission to improve the world. It was no surprise to me that men and women committed to justice and dignity affiliated with a Catholic university or law school. But it was a reminder of how critical it is to keep the dialog alive and vibrant about Catholic legal thought and Catholic principles. The "harvest is plenty, but the laborers are few." (Mt: 9:36-38). I think that this blog helps those of us in legal academia shape some of the laborers, and then helps the laborers sustain themselves while in the field.
Wednesday, February 12, 2014
Let's consider a hypothetical case. Imagine that a Muslim middle school --- let's call it Zaytuna Academy --- hires Mr. Khalil as its Vice Principal. Mr. Khalil is an effective administrator and is very popular with teachers and students alike. Now, Mr Khalil happens to believe that the prohibition of alcohol consumption in Islam is wrong. So he doesn't honor that teaching in his personal life. He also happens to reject Islamic teachings on sexuality and modesty. So, when an opportunity comes his way to become a business partner in a new "gentleman's club" featuring alcoholic beverages and nude dancing --- he takes advantage of it. And he makes no effort to hide his involvement in a "sideline" strip club business from his students. On the contrary, he freely acknowledges and discusses it when asked, and even makes use of some club promotional objects (e.g., "Lady Godiva's" pens and coffee cups) in his office. Moreover, he is identified as a partner in the business in an article about it in the local newspaper --- an article in which he was quoted extensively based on an interview he gave the reporter.
Zaytuna terminates Mr. Khalil's employment. In my opinion, the school should certainly have a legal right to do that. But I believe it has a moral right to do it, too. Indeed, I think it is right for the school to do it. In fact, I would go so far as to say it would be wrong for the school not to do it --- it would be an injustice, given the school's mission and concomitant obligations to the Muslim children and families it exists to serve.
Because so many other longtime and more recent members of the Mirror of Justice have posted their reflections on our tenth anniversary, the birthday portrait already has taken nearly full shape. The likeness of the Mirror of Justice sketched by my colleagues has multiple facets, can be perceived from many angles, and reveals a slightly different profile depending on who is painting (and who is observing). At the considerable risk of great over-simplification, I see the panorama depicted to include:
- Asking the question “what is the nature of the human person, and what does that mean for law” (Rob Vischer)
- Offering “a living witness to Christ’s love and mercy” by “being present to others” (Michael Scaperlanda)
- “Captur[ing] something about the self-evident truths that are a part of our national legal fabric and beyond” (Robert Araujo)
- Reminding us “that we cannot make decisions about law and public policy divorced from the teachings of our faith” (Susan Stabile)
- Showcasing “feminist jurisprudence, in particular the concept of complementarity, and how that concept plays out in both Catholic teachings and legal theory” (Lisa Schiltz)
- Presenting “the law of love” (Russell Powell)
- Focusing on “the Catholic law school and ‘Catholic legal theory,’” while remembering always that “we are educating souls, not merely imparting skills training for budding bureaucrats” (Michael Moreland)
- Recognizing “that Catholic thinking supplies something even more cosmic—knowledge and beliefs about the cosmos itself, and about the place of law in that cosmos” (Kevin Walsh)
So now, ten years after we started down the path, which of these things has the Mirror of Justice become? All of them, of course. How then should we explain the nature, categorize the genus, describe the distinctive characteristics of this virtual animal? We could do little better than returning to the first words ever posted here, describing the Mirror of Justice as “a group blog created by a group of Catholic law professors interested in discovering how our Catholic perspective can inform our understanding of the law.”
Our messages have ranged from the political to the athletic, from the jurisprudential to the practically professional, from the sociological to the literary. But central always has been our collective commitment to a Catholic theory (or sensibility) of the law and to a Catholic understanding of the legal profession. Wherever else we have gone in the past ten years, and we have ranged widely in our mission to share the “profoundly countercultural elements in Catholicism," we have never wandered for too long away from driving questions about law and public life in a society that allows human thriving for the children of God.
And, as often expressed in these tenth anniversary reflections, at our best, we remember our priorities and maintain our humility. In words written by Richard John Neuhaus to which I often return as a reminder to myself:
Whether the political dimension is major or minor in our vocations, we will all do our work much better if we understand that we are not doing the most important thing in the world. It may be the most important thing for us to do because it is what we believe we are called to do, but not because it is the most important thing in the world.
Too many academics, political figures, and leaders in the legal profession believe they are engaged with the most important things that could occupy the attention of a human being. Without any sense of triumphalism, as we know our faith is a gift, we simply know better—even if we do not always act or speak as if we do and even if we too sometimes forget the higher things. As Catholics, we must never forget that the Church is about salvation; that our friends, neighbors, and all others are beings of eternal significance; and that souls are at stake.
This summer the Witherspoon Institute's Simon Center on Religion and the Constitution will offer its third biennial Church and State Seminar, July 28 to August 1, at the Princeton Theological Seminary. This five-day seminar will examine the relationship between religion and politics in the period of the American Revolution, founding, and early republic. The seminar is open to untenured faculty and post-doctoral scholars in history, political theory, law, and religion--and the Institute will consider doctoral candidates at work on their dissertations as well. Please pass the word to your eligible junior colleagues, friends, and students!
The seminar will explore primary sources at the intersection of church and state—charters, constitutions, and legal texts, as well as sermons, pamphlets, essays, speeches, debates, and religious texts. Topics will range from the colonial era and the First Great Awakening, through the revolution, constitution-making, and founding debates over religious liberty, to the dawn of the Second Great Awakening, with a view of politics from a religious perspective, and a view of religion from a political perspective. From Edwards to Emmons, from Mather to Madison, from Whitefield to Washington, major figures of this pivotal era in American religious and political history will be considered in their own historical settings. The seminar faculty will be leading scholars of American history, law and politics, and theology.
2014 Faculty
Daniel L. Dreisbach, American University
Thomas S. Kidd, Baylor University
Gerald R. McDermott, Roanoke College
Applications will be accepted through March 15, 2014. For more information, please see: http://winst.org/centers/corac/seminars/church-and-state/
Over at dotCommonweal, Cathy Kaveny has a post up about the recent case out of Montana in which an unmarried teacher was fired from her teaching position at a Catholic school after she became pregnant. As I said in an earlier post about the much-commented-upon situation in Seattle -- where an administrator at a Catholic high school was fired after he entered into a legally recognized same-sex marriage -- these are hard cases. (Not legally hard, in my view: I think that Catholic schools do and should have the legal right to hire and fire in accord with their understanding of their Catholic mission. Still, they are hard.)
I agree with Cathy that part of the reason these cases are hard is that we all know that teachers and administrators at Catholic schools -- like all of us -- are imperfect sinners, and we all know that Catholic schools do not refuse to hire, or fire, people because they are imperfect sinners. We do not investigate teachers' private lives to be sure they are loving, charitable, generous, and joyful. When people see Catholic school teachers being fired for things having to do with sex and sexuality, it can reinforce the (false) notion that all the Church cares about is sexual morality and that sexual sins are the most grave and mission-undermining.
I also agree with Cathy that the decision to fire a teacher or administrator in a case like the one she discusses should not be framed as punishment for the teacher's having done wrong. Again, we all do wrong, and all teachers and Catholic administrators do wrong, and so if the firing is "punishment", it looks pretty arbitrary and selective. It should not be, as Cathy says, a matter of expelling the teacher from the Catholic community, because that's not how the Catholic community works.
And yet, I think that a Catholic school has to think about the ability of a teacher to effectively and constructively participate in the school's mission of integrated formation in the faith. It seems that (say) a teacher who (publicly) professed his or her Bill Maher-esque contempt for theism would have a hard time doing this, as would a teacher who (publicly) advocated for (say) euthanizing severely disabled infants. What about an unmarried teacher who gets pregnant? It seems to me that a lot would depend on what the school, and the teacher, "said" to the students and school community about a decision to fire, or retain, her. Would the message be "this is no big deal"? Would it be "our Catholic school believes that sexual activity is for marriage, and the teacher did the wrong thing, but she will continue teaching here anyway because, after all, we all do wrong things sometimes -- but don't follow her exampe"? (Would it matter whether or that the teacher publicly identified what she had done as a mistake, as wrong?) Something else? Again . . . difficult cases.
