So far as I can tell from this NYT piece by Linda Greenhouse, she is (a) upset that the plaintiff in the case challenging the (unconstitutional) Massachusetts law limiting speech around abortion clinics is genial and appealing and (b) upset that some of the plaintiffs challenging the HHS contraceptive-coverage mandate have the genial and appealing name "Little Sisters of the Poor." These facts are resulting, she fears, in the wrong "story" being told about these cases. The right story, in her view, is that "the church" and others are engaged in a "deadly serious and sophisticated campaign, a claim by religion for primacy in the public square. . . . The church plays a long game." The right story is that a case brought by a nice little old lady in Massachusetts is a "vehicle in a nationally designed effort to get the Roberts court to reopen settled questions concerning abortion."
The former is, I'm afraid, Blanshardian nonsense and the latter wrongly suggests that there's something "settled" about Hill v. Colorado case, which most free-speech scholars (left, right, and center) regard as an outlier and incorrect.
She concludes with this:
Next month, the justices will hear the Hobby Lobby case, the challenge to the contraception mandate by a for-profit corporation that engages in commerce and employs thousands of people. Hobby Lobby has received a good deal of attention, the Little Sisters less so. The next few months will tell us whether the Supreme Court, captivated by the nuns’ narrative, merely stumbled into the role of enabling a school-yard bully, or whether its puzzling behavior signifies a new chapter in a perennial story, the struggle over the role of religion in the country’s public life.
I'm not sure who is the "school-yard bully" -- Hobby Lobby? Surely not the Little Sisters? As I see it, the only pushing around that is involved in this case is coming from the Administration, and the only "bully" around to be "enabled" by the Court, is the HHS. I guess I am reading a different "story."
UPDATE: From a reader:
“'Sin.' Now there’s a scary word -- or it might be if it bore any relation to reality. But as the government explained, it doesn’t."
- Linda Greenhouse, "The Stories We Tell," New York Times, 2/5/14
"The deadliest sin, I say, were that same supercilious consciousness of no sin;—that is death; the heart so conscious is divorced from sincerity, humility and fact; is dead: it is 'pure' as dead dry sand is pure."
- Thomas Carlyle, On Heroes, Hero Worship and the Heroic in History (1841)
UPDATE: This from a friend and reader, Prof. Kurt Lash (Illinois):
Linda Greenhouse’s latest effort deserves more notice—and condemnation. Greenhouse begins her editorial “The Stories We Tell” with the perfectly appropriate warning not to let the attractiveness of the party before the court influence the analysis and application of the law. This is why lady Justice is portrayed as blindfolded—so as not to be swayed by personalities before the court.
But then Greenhouse calls upon her readers (who she hopes includes the Justices) to judge the case according to the real party Greenhouse sees standing in the shadows—The Church. Don’t think about the parties before the Court, she warns. Their claims “are not popping up randomly or by accident.” No, these cases are part of “a nationally designed effort,” by a “school yard bully,” who, with “sustained aggressiveness” “sense[s] weakness in the executive branch and welcoming arms at the Roberts court.”
And why would there be welcoming arms at the Supreme Court? Greenhouse feigns being “baffled” at the Court’s injunction protecting the Little Sisters while their case is on appeal. After all, there is no reasonable legal explanation for this “puzzling behavior.” What, oh what, Greenhouse poisonously wonders, might possibly explain why a majority of the Robert’s Court would protect these Roman Catholic nuns? She’s “stumped.” Her mind’s a blank.
Except her mind is not blank at all. Her noxious essay is an attempt to paint these cases as driven by the “aggressive" Roman Catholic Church, and warn the Roman Catholic members of the Supreme Court that any ruling in favor of religious liberty will be rightly viewed as imposing their beliefs on the rest of the country. After all, there is no other reasonable explanation.
Greenhouse is right to see the arguments in these cases as part of “perennial story.” But the foul smelling perennial in this case is religious bigotry. “The Church plays a long game,” Greenhouse tells us. Which Church is that, Linda? One could ridicule her paranoid fantasy that Rome has somehow arranged to have these cases arrive at the Supreme Court at just the right time when Rome has also managed to place on the Supreme Court a sufficient number of Pope-controlled justice-bots.
But there is nothing here to laugh at. Greenhouse has abandoned one of the critical pillars of justice and called upon the Court and the public to judge the application of law according to Greenhouse’s vision of the real party before the Court: The Roman Catholic Church. It’s a shameful if transparent effort to pressure the Catholic members of the Court and inflame anti-Catholic sentiment in the country. It’s an old story. A “long game” indeed.
There are Christians, including some Catholics, who imagine that with minds illumined by Christian faith we can get along perfectly well without philosophy. It's not much use, they suggest, especially when it comes to defending ideas about morality and morally-charged issues of law and public policy. Arguments don't cause people to change their minds. And we don't believe what we believe based on arguments anyhow, do we? Sherif Girgis explains the errors of this way thinking in three installments at Public Discourse. The third appeared today. Here are links to all three:
http://www.thepublicdiscourse.com/2014/02/11978/
http://www.thepublicdiscourse.com/2014/02/11980/
http://www.thepublicdiscourse.com/2014/02/11982/
I first came across Mirror of Justice 10 years ago while practicing at a firm in Washington—I was amazed to see that there existed a critical mass of smart, engaged legal scholars in an area called “Catholic legal theory” and followed the blog avidly. My decision to enter the legal academy was shaped partly by the conversation I saw taking place at Mirror of Justice, and, a few years ago, I eventually became a contributor.
Like Rob Vischer, I now have an administrative role that leaves little time for working on Catholic legal theory, though I think a lot about the nature of legal education at a Catholic university. As Rob indicates, Mirror of Justice appeared at a time when there were new law schools (such as his own at St. Thomas) opening with an intentional focus on mission and new conferences and workshops at several schools exploring the distinctive aspects of the identity of Catholic law schools. That period has now passed and there are now enrollment- and employment-outcome pressures facing all law schools—religiously-affiliated or not—that seem, understandably, to crowd out other priorities. That said, I have two brief thoughts about the ongoing salience of the “MOJ Project.”
First, Mirror of Justice was founded amid an era in which Catholic universities generally (and not only in law schools) were engaged in a renewed conversation about their religious identity. As is now, I think, widely recognized, the governance by members of sponsoring religious orders and a strong desire to move out of cultural and intellectual isolation had led Catholic colleges and universities to be somewhat complacent about their mission in the post-Vatican II era. The end of that period and the beginning of a renewed conversation were inaugurated by John Paul II’s Apostolic Constitution Ex Corde Ecclesiae in 1990 (the discussion of which was sometimes sidetracked by the debate over the relation of bishops to theologians) and publication of George Marsden’s The Soul of the American University in 1996. Marsden demonstrated that religious identity could (and did) disappear from universities over the course of the history of American higher education, and it became apparent to many that Catholic universities were heading down the same path previously traveled by Marsden’s case studies in secularization and the marginalization of religious identity.
The challenge, of course, was and still is how to respond to this historical situation. From that era came the creation of mission officers at many institutions, the development of mission-related courses (such as Catholic social thought and law-type courses) and programs (such as Catholic studies departments) at some schools, and discussion of how institutions should take into account their mission when hiring faculty and staff. All of those developments were important and praiseworthy, and Mirror of Justice was a manifestation of the same spirit.
But there has always lurked the danger of a kind of “extrinsicism” in some of these efforts, and I think the next challenge for Catholic institutions—and even blogs—is to find ways of overcoming it. I borrow the term from Michael Buckley, SJ, and his discussion of these matters in his book The Catholic University as Promise and Project (1999). (I served as Michael Buckley’s research assistant while I was in graduate school at Boston College during the composition of the book.) As Buckley puts it, this view “presents a vision of the Catholic university in which the religious and the academic, however interrelating and intersecting, are fundamentally extrinsic to one another. In no way does either bring the other to its own intrinsic or inherent completion” (11). And so in law schools and in legal scholarship, “religion” is added onto “law,” just as finance majors in most Catholic universities have to take (and resent) classes about “religion.”
The great Catholic university—and Catholic law school—of the future will seek ways in its institutional life to achieve the integration of faith and reason, the sacred and the secular, in new and creative ways. As Buckley wrote in an earlier essay that was later adapted for his book:
The fundamental proposition of the Catholic university is that the religious and the academic are intrinsically related. Any movement toward meaning and truth is inchoatively religious. This obviously does not suggest that quantum mechanics or geography is religion or theology; it does mean that the dynamism inherent in all inquiry and knowledge—if not inhibited—is toward ultimacy, toward a completion in which an issue or its resolution finds place in a universe that makes final sense, i.e., in the self-disclosure of God—the truth of the finite. At the same time, the tendencies of faith are inescapably toward the academic. This obviously does not suggest that all serious religion is scholarship; it does mean that the dynamism inherent in faith—if not inhibited—is toward its own understanding, toward its own self-possession in knowledge. In their full development, the religious intrinsically involves the academic, and the academic intrinsically involves the religious—granted that this development is de facto always imperfectly realized at best or even seriously frustrated. "The Catholic University and the Promise Inherent in Its Identity," in Catholic Universities in Church and Society: A Dialogue on Ex corde Ecclesiae, ed. John P. Langan, SJ (Georgetown University Press, 1993), 82.
Second, I am generally sympathetic to reforms in legal education that emphasize business literacy and experiential learning as a way to prepare our graduates for successful careers, as indicated by Villanova Law School’s strategic plan. I think Catholic law schools and the work of this blog might bring two other important pieces to the discussion of legal education, however.
One is an emphasis on student formation and discernment. As Christian Smith and his colleagues documented in Lost in Transition (2011), many young adults are detached from moral, political, and religious commitments that often leaves them without the resources to make sense of their lives and personal and professional choices. Catholic institutions and the tradition they inherit have a well-developed framework for engaging such questions, and I am excited to see how our institutions will find ways of educating the whole person and engaging our students from within that framework.
Finally, the Catholic law school and “Catholic legal theory,” while committed to preparing students for professional success, also appreciate the full context for law and legal institutions. We are educating souls, not merely imparting skills training for budding bureaucrats. And so at a time when humanistic legal education (and courses in areas such as legal history and jurisprudence) is being very much called into doubt, I hope this blog and our institutions can develop arguments for the importance of such an education--not to the detriment of professional skills and a successful career but because we are the bearers of a great tradition that insists on education as the formation of citizens and participation in God's own work.
Here is Fr. Araujo's reflection on MOJ's 10-year anniversary:
Nonus Adveniens (On the Coming Ninth)
I have just about reached my ninth anniversary of participation in this web log dedicated to the development of Catholic legal theory. Our maestro coordinator, Professor Rick Garnett, has asked the contributors to the Mirror of Justice to supply a brief anniversary submission during this month of February. Who am I to say “no”?
As one of the law teachers who struggles with the mantle of the joint enterprise of developing Catholic legal theory, I have seen that some of my past posts have veered from doing precisely this. But by the same token, I realize that in most of what I have said, I have attempted to capture something about the self-evident truths that are a part of our national legal fabric and beyond. As a public law lawyer, I have spent considerable time wrestling with questions that span national interests by looking at the universal common good as it might be served by the rule of law—a law that is made by human beings, but by human beings who think objectively and realize that there are universal principles and truths about the human person, human nature, and human society.
All of this seems to coincide with the natural law thinking that has been crucial to legal thinking for some time. Romans like Cicero and the Stoics along with some of the ancient Greeks seemed to have agreed. So did Aquinas, de Vitoria, and Suàrez. Perhaps even a few of our Founders did, too, although they were also influenced by the strong individualistic notions of the Enlightenment. Then came the world of realism and positivism.
Our project at the Mirror of Justice, I think, has been in large part an antidote to these latter developments that risk rather than promote the common good of which we often speak here as we might also take account of the notion of the general welfare and our posterity of which the Preamble to the Constitution speak.
It is clear that our American, western, and now global cultures are strongly influenced by an individualism and subjectivity that are fortified by what some seem to find attractive, i.e., legal positivism. Given the nature of our joint enterprise, the contributors to the Mirror of Justice have a broad responsibility to meet this challenge. I hope to address more of this subject in the future myself, and I pray that God will give me the strength to do this.
Wednesday, February 5, 2014
I started blogging at MOJ a month of so before the 2004 election, and so many of my early posts had to do with voting and conscience, a subject that will always continue to be part of our discussions. Although I have been an infrequent MOJ blogger of late, I remain convinced of the importance of the enterprise in which we have been engaged for the last ten years.
In his recent Apostolic Exhortation, Evangelii Gaudium Pope Francis, speaking about the inclusion of the poor in society, said that Jesus’ command to his disciples “You yourselves give them something to eat” (citing Mark) “means working to eliminate the structural causes of poverty and to promote the integral development of the poor, as well as small daily acts of solidarity in meeting the real needs which we encounter. The word ‘solidarity’ is a little worn and at times poorly understood, but it refers to something more than a few sporadic acts of generosity. It presumes the creation of a new mindset which thinks in terms of community and the priority of the life of all over the appropriation of goods by a few.”
The thrust of the Pope’s point is not limited solely to the problem of poverty. He expresses clearly in the document that because Christian conversion “demands reviewing especially those areas and aspects of life related to the social order and the pursuit of the common good,…no one can demand that religion should be relegated to the inner sanctum of personal life, without influence on societal and national life, without concern for the soundness of civil institutions, without a right to offer an opinion on events affecting society.”
Those of us involved in the MOJ project will doubtless continue to disagree about all sorts of issues - whether particular laws and policy positions are consistent with principles of Catholic Social Thought, whether a good Catholic can vote for a particular candidate, and so on. But we all proceed from the premise that we have a duty to help to create “a new mindset which thinks in terms of community and the priority of life of all” and that we cannot make decisions about law and public policy divorced from the teachings of our faith.
