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.

Thursday, January 23, 2014

"Gay Marriages Confront Catholic School Rules"

This article in the New York Times covers an incident that MOJ veteran Eduardo Penalver has addressed at dotCommonweal (for example, here and here) and that is similar to cases arising around the country.  The Times story, it seems to me, could have done more to engage and present "the other side" and could have tested at least a little bit the premise of some of those quoted in the story that Pope Francis's election, statements, and views weigh against the decision of a Catholic school to dismiss a well liked administrator after he legally married another man.  But, the quality of the Times' coverage of religion- and Catholic-related stories is a matter for another day (and, probably, a different blog!).  

As a legal, constitutional, and political-theory matter, I guess I am committed to the view that a Catholic high school is and ought to be able to decide (a) that teachers and administrators must teach and form students in accord with the Church's proposals and teachings and (b) whether or not a particular teacher or administrator is failing to do so.  That said, cases like these are (as Eduardo has pointed out) tricky for several reasons:   Even those Catholic schools that are most committed to tethering hiring and firing decisions to their Catholic mission and character do not, generally speaking, investigate employees' private lives to be sure they are entirely consistent with the Church's moral and other teachings.  (Phew!).  What's more, failures to live in accord with the Church's teachings regarding sexuality are failures, but they are not necessarily, as a category, more "serious" or "grave" failings than the failure (of so many of us!) to live in accord with the Church's teachings on charity and humility, and yet we don't hear about many Catholic school teachers being fired for exhibiting insufficient joy.  And, my sense is that the Church and Catholic schools do oppose unjust discrimination against and demeaning treatment of persons because of their sexual orientation.  

But . . . what is it reasonable to expect -- given that the Church teaches what it teaches about sexuality and marriage -- a Catholic school that holds itself out as having a Catholic mission that includes formation in the faith to do when a (popular and otherwise entirely competent) teacher or administrator, say, "goes public" about her support for abortion rights . . . or enters (again, publicly) into a legally valid same-sex marriage?  One student is quoted in the Times piece as saying “It was just shocking that the Catholic Church would turn its back on a teacher for something that didn’t affect his work performance," but . . . isn't that the question?  That is, isn't the question "what counts as the performance of the position as the vice-principal of a Catholic high school (and so what counts as affecting that performance)"?

The students who are quoted in the piece speak movingly about compassion and their opposition to discrimination.  The piece states that some people support the decision to dismiss Mr. Zmuda, but we do not "hear" their reasons.  (I assume it is not because they oppose compassion or support discrimination.)  In any event, we will, I expect, see more and more of these cases and, I expect, we will see -- to say nothing of litigation -- similar disagreements between Catholic schools' decisionmakers, on the one hand, and students and alumni, on the other.  These disagreements will have to involve conversations about, again, what is the mission of a Catholic school and what is (and is not) involved in the education and formation of students at these schools. 

UPDATE:  Michael Sean Winters responded to my post here, and elaborated on the issue.

The "right" that dare not speak its name

Princeton alum Matthew Schmitz, Deputy Editor of the indispensable First Things magazine and one of my favorite people, offers a critical perspective (http://www.firstthings.com/blogs/firstthoughts/2014/01/eight-lies-in-president-obamas-roe...-statement) on President Obama's message of support for Roe v. Wade on its 41st anniversary. What I find most remarkable--and, in an odd way, most encouraging--about this message of support for abortion by the most extreme pro-abortion politician in America (Want proof? http://www.thepublicdiscourse.com/2008/10/133/) is that it does not include the word "abortion."  Anywhere. The word isn't mentioned. Not once. Even in defending the taking of human life in utero, the President cannot bring himself to call it by its name. This is, I suspect, not a matter of squeamishness, much less moral qualms, on Mr. Obama's part. He was, is, and I fear will continue to be the truest of true believers in the abortion license. Rather, it reflects a cultural and political reality. A substantial majority of the American people have grave moral qualms about the deliberate killing of children in the womb. Most people oppose most abortions that are actually performed, that is, elective (or "direct") abortions, abortions whose precise object is to get the unborn baby dead because a woman, or husband, or boyfriend, or parent, or employer thinks, for whatever reason, that would be best. Hence, the euphemisms ("reproductive health care," "privacy," etc.) that Matt Schmitz points out in the President's statement, and its Orwellian identification of the cause of abortion with building "safe communities for children" (indeed, "all" children) and with giving "everyone" the "freedom and opportunity" they deserve. When a politician feels he cannot call the thing he is defending by its name, it is evidence that the cause he serves is in big trouble. The moral momentum is against him. The cause has lost, if it ever possessed, the moral high ground. Of course, this does not mean the inevitable defeat of the abortion license. There is no such thing as "inevitable" in the domain of social issues. The abortion license will fall only if those of us who uphold the right to life of each and every member of the human family are willing to work and pray and strategize and organize and sacrifice and suffer for the sake of our weakest and most vulnerable brothers and sisters. But the President's unwillingness to say the word "abortion" should give heart to those who have been struggling (and every year on this date marching) for more than forty years against the bloody reality that, as far as Barack Obama is concerned, dare not speak its name.

Wednesday, January 22, 2014

Paroline v. United States

Today I had the singular experience of attending oral argument at the Supreme Court. The case was Paroline v. United States. For those unfamiliar with this matter, Paroline addresses the ability of a child pornography victim ("Amy") to obtain restitution from a child pornography possessor consistent with 18 U.S.C. 2259. As was demonstrated by the oral argument, the case has both complex legal issues (outlined here in a brief article co-authored by myself and the trial attorney for Amy, James Marsh) as well as important emotional and justice issues. Although the case poses many important legal questions worthy of discussion, for purposes of MOJ, I will focus on some reflections most relevant to Catholic legal thinking.

When one's legal scholarship focuses on the exploitation of vulnerable people, particularly women and children, the days when one feels positive about the direction of law and policy are, frankly, few and far between. Our new MOJ contributor, Cecelia Klingele recently discussed her observation that those convicted of crime are among those "unseen" in our society. I would add to that list of unseen – and often unheard in courts of law- crime victims. As I point out to my students, the word "victim" does not appear in the Constitution; she is afforded no real procedural protections; no one speaks exclusively for her; and often she is involved in the litigation through no action of her own, at times being further victimized by the process. Indeed Paroline demonstrates this quite poignantly as it is a case wherein the United States – the entity which prosecuted defendant Paroline - has taken a position at odds with (although not completely opposed to) Amy's effort to receive restitution.

However, I felt today represented a good day for victims – a day in which Pope Francis' call for us to "care for the vulnerable of the earth" was heard a little more clearly (Evangelii Gaudium, para. 209). This is not so much because of any expected outcome of the case. Indeed, I do not know where the Justices will come out on the very difficult questions at issue. Rather, two aspects of the day offer some hope that we are closer to the Pope's vision of "restoring the dignity of human life" to all people. (Evangelii Gaudium, para. 75)

The first sign of encouragement was the procedural handling of the case. This case began with one civil attorney answering the call to assist "Amy." Amy is a victim of horrible abuse whose assaults have been circulated extensively in child pornography networks. One attorney, James Marsh, took up her cause several years ago and has worked tirelessly to assist Amy in moving forward with her life. He, Paul Cassell (who argued the case before the Court), Carol Hepburn (who has represented several other victims) are examples for us all on how we as attorneys can utilize our skills to truly help the most vulnerable among us.

Secondly, I saw some hope from the other side of the bench. I previously attended the argument for another child pornography case, United States v. Williams. During that argument I was rather dismayed by some of the questions from the Justices that seemed to indicate that they, like many in the legal community and media, did not understand the victimization associated with being a victim of child pornography. This victimization is unique in that, unlike many other crimes, child pornography is a "crime of perpetuity." That is to say that a victim of child pornography never ceases being victimized. As long as the images exist, she lives with the knowledge that others are observing her assault for their own pleasure and entertainment. She must wonder whether every person she meets, every job interviewer, every neighbor, every teacher has viewed her image. It is a crime like no other. For the Williams case, the Justices did not seem to fully understand that concept. Today, all the Justices' questions reflected a clearer understanding of that reality. I was glad to see that the harm suffered by these men and women is being understood at a greater level.

While this may seem a minor point, as pornography becomes more mainstream in our society, and judges increasingly are affording child pornography offenders lesser sentences, one can begin to question if we will ever reverse the trend of turning our children into commodities. Today reminded me that there is hope, however incremental, that we are moving closer to valuing "the life and dignity of all human persons."

Roe at 41

From John Hart Ely, "The Wages of Crying Wolf" (here):

It is . . . a very bad decision.  Not because it will perceptibly weaken the Court—it won't; and not because it conflicts with either my idea of progress or what the evidence suggests is society's —it doesn't. It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.

I think Ely's "it won't" and "it doesn't" miss the mark, and his "because" in the last sentence is incomplete.  That said, the critique (it seems to me) remains devastating.

A review of "The Mighty and the Almighty"

Prof. Nicholas Wolterstorff's new book The Mighty and the Almighty:  An Essay in Political Theology, is a great read.  And, here is a helpful and insightful review, by Kristine Irwin (Biola), from Notre Dame Philosophical Reviews.  Here's a bit:

Wolterstorff's conclusion is that "the state is to grant institutional autonomy to the church and to all other counterpart religious institutions, and it is to grant religious freedom to all citizens" (131). Once again, we have an argument "from above" -- that the very nature of the church requires this conception of the state -- and "from below" -- one that appeals to principles of justice and natural rights.[4] What this means is that Christians have a vested interest in advocating for the moral rights of all religious institutions: "I may think your religion is wrong; but I will defend your civil right to be free to practice it" (144). Indeed, Wolterstorff asserts that all social "institutions with authority structures have moral rights against the state" (162).

This is perhaps the most interesting, and most puzzling, aspect of Wolterstorff's excellent book. Why think that any social institution with an authority structure places "normative limits . . . on the authority of the state" (171)? Wolterstorff's appeal is, as usual, to natural rights: we have a natural right to form social entities to accomplish goals without consulting the state; therefore, "the authority inherent within the entities that we establish then places limits on the authority of the state" (171). So it is now not only the rights of individuals, or the rights of religious institutions, but the rights of any institution with a governance-authority structure that limits the authority of the state. This goes a good way towards the increasingly popular argument that there is nothing special about religion, as against other claims of conscience: either all claims of conscience ought to be tolerated, or none ought to be tolerated.[5] The structure of Wolterstorff's argument -- and particularly, the sufficiency of the "argument from below" -- leads me to believe that he would accept this implication. A further question emerges, though: Do Christians now have a vested interest in advocating for the moral rights of all claims of conscience that arise from all institutions with a governance-authority structure? This seems a bridge too far.

"Abortion and Human Equality"

Today, of course, is the anniversary of Roe v. Wade, and I want to thank and salute the many thousands of people who are taking part in the March for Life in Washington, D.C. and in similar events across the country.  Their witness is inspiring, as is their dedication.

Here is an interview with Prof. Francis Beckwith -- a prolific scholar whose work is probably familiar to most MOJ readers called "Abortion and Human Equality."  Here is a bit:

We should always bring the conversation back to the only really important question: Who and what are we? If you can’t answer that question, you can’t answer the question of whether abortion is unjustified homicide or not. As I have already noted, the popular arguments for abortion choice all assume that the unborn child is not one of us. For if he were one of us — as we believe of the two-year-old and the adolescent — these popular arguments would never work. Can you imagine if someone suggested that the best way to reduce poverty would be to require that all poor children under the age of five be exterminated? Yet, many people have argued that abortion is a way to reduce the burden of poverty. Consequently, without first assuming that the unborn child is not a moral subject (and thus begging the question), this sort of argument would not even get off the ground. This is why even some very pressing issues, ones for which the pro-lifer ought to provide answers, can’t really be addressed until one answers that first question.

More from Brad Gregory on his "The Unintended Reformation"

My friend and colleague Brad Gregory has an essay up at The Immanent Frame called "Genre, Method, and Assumptions", in which in which he responds to several of the reviews-to-date of his (excellent) book, "The Unintended Reformation."  Here's a (very small) bit:

The accusation . . . that, in the book, I offer no arguments in support of the truth of Catholicism is perfectly correct—because The Unintended Reformation is not an argument for the truth of Catholicism. I think the book’s historical analysis could be used in a manner consistent with Catholic truth claims. But a work of positive apologetics would require a great deal of additional labor, none of which is undertaken in the book. I am not, nor do I aspire to be, a theologian. Yet theology is not only part of history—it remains part of contemporary intellectual life despite its banishment from secularized research universities. Thus, to ignore it is irresponsible for anyone who wants to understand the fullness of contemporary intellectual life, including the difference theology might make to it. I suggest that anyone who thinks theology does not belong should read, for starters, David Bentley Hart’s most recent book, The Experience of God: Being, Consciousness, Bliss. The historically argued takeaway from The Unintended Reformation, with respect to Catholicism, is that it avoids the sorts of open-ended pluralism characteristic of Protestantism and modern philosophy with respect to the life questions, because Catholicism relies not on Thomism or indeed any particular philosophical or theological view per se, but on an ostensibly authoritative tradition about God’s actions in history. Again, this argument neither is nor aspires to be a demonstration of the truth of Catholicism; indeed, it holds even if all religion is illusory and God a fiction. Because Western modernity is premised on the authority of secular reason exercised by the autonomous self, it is, unsurprisingly, an unwelcome argument for those committed to such views of reason and the self. But it simply is not a positive argument for the truth of Catholicism. It is restricted to a claim about Catholicism’s intellectual viability, which is something that everyone who understands the issues involved can and should acknowledge, regardless of their own beliefs, in the same way that everyone can and should acknowledge the same for Judaism and Islam.

Like the man says, "Highly Recommended."

Wolterstorff's "The Mighty and the Almighty": The Dual Authorities Thesis

This is the second in a series of posts on Professor Nicholas Wolterstorff's book, The Mighty and the Almighty: An Essay in Political Theology. In the first post, I described what might be meant, and what Wolterstorff means, by "political theology," and Wolterstorff's project to arrive at a distinctly Christian political theology. Here I want to lay out the core thesis of that political theology.

That thesis can be summed up in the phrase, "dual authorities." Christians, Wolterstorff writes, are subject to the dual authority of Christ and the civil power. And these dual authorities mediate one another.

These are deep waters and Wolterstorff explains and helps the reader by considering an ancient example--that of Polycarp, Bishop of Smyrna, who was martyred in 156 A.D.  Polycarp is sought out, arrested, and haled into a stadium filled with people where he is urged by the Roman proconsul to renounce Christ and swear by the genius of Caesar in order to save himself from execution. Polycarp refuses in these words: "For eighty and six years have I been his servant, and he has done me no wrong; how can I blaspheme my King, who has saved me?" Later in the exchange, Polycarp tells the proconsul: "[W]e [Christians] have been taught to render honour, as is meet, if it hurts us not, to princes and authorities appointed by God."

Wolterstorff's thesis depends on a close reading and interpretation of these statements. Unlike those who resist government's coercive power as having no authority at all over them, "Polycarp's resistance was different":

He did not declare that obeying his own interior conscience had higher priority  for him than obeying the proconsul. He did not declare that loyalty to his group had higher priority for him than whatever loyalty he might feel toward Caesar, the proconsul, and the people in the stadium....[T]he explicit ground of his resistance was heteronomous. He had a sovereign distinct from Caesar, namely, Christ. The proconsul was demanding that he renounce that sovereign. That he would not do, for his sovereign had saved him. (13)

But Polycarp is not implying that the civil power is not his sovereign, or that Christ is his sovereign instead of the civil power. "No," says Wolterstorff, "he was a citizen of Smyrna; and the proconsul had political jurisdiction over Smyrna. Polycarp was under dual authority. In his person, the authority of Christ and the authority of the emperor intersected. Given the command of Caesar's proconsul to renounce Christ, these two authorities had now collided." (14-15)

What makes the conflict even more complex and more difficult is the existence of other conflicting dualities beneath the surface. For one, Polycarp believed that the princes of the civil authority are appointed by God; yet now those self-same civil authorities demanded that he renounce God (that is, Christ). And for another, there was an institutional conflict at work: Polycarp was a bishop of the church, exercising Christ's authority over the church. His exchange with the proconsul was not merely a personal conflict but represented a collision of institutional authorities. He was one person with dual membership in two authority structures that intersected in him. The key to Wolterstorff's political theology is in understanding the nature of these dual authorities and the depth of their conflicts--dualities which affect everyone (political authority mediating divine authority and yet also being limited and judged by divine authority) and Christians in particular (being citizens of some state and under its authority, while that state is always under God's authority; being members of the church and under the authority of Christ, who in turn is divine).

Finally, it is interesting to read Wolterstorff's comments about the alien quality of all of this to American sensibilities, in which the language of religious liberty has the effect of effacing the problem of dual authority:

Some will find it strange to think of the church in terms of authority. They think of the church as a voluntary organization devoted to sponsoring religious activities. A group of us find ourselves interested in religion, in particular the Christian religion; so we get together and set up an organization for holding worship services and for engaging in a bit of social action. We put in place some organizational structure, call a minister, place ads in the local press, welcome neighbors. We are off and running.

Everything about religion in America conspires to make one think of the church along these lines. Christ as king and the church as an authority structure are nowhere in view. The local government may decide to clamp down on our group for one reason or another--it doesn't like the architectural plans, doesn't like the fact that wine is served to minors, doesn't like the traffic jams. We may resist. But if we do, our resistance will be in the name of religious freedom. We will not declare that Christ is our king and that loyalty to our king requires that we not concede to the government's demands. No Polycarps among us. (16-17)

Tuesday, January 21, 2014

Public employees, compulsory unionization, and the Church's social teachings

"Case could destroy pillar of union power," reports this piece in The Hill.  I have not done so yet, but I feel pretty confident that if I made a tour of the leading blogs dealing with Catholicism, politics, social teaching, and so on, I would find an argument to the effect that Catholic Social Teaching supports labor unions and, therefore, a First Amendment ruling that the Constitution limits the ability of government to require employees to join (and support financially) unions and their activities would be (whatever its legal merits) inconsistent with that Teaching.

Now, this case (Harris v. Quinn) -- SCOTUSBlog (natch) is a great resource for leaning more --  does not seem to present the usual agency-shop situation:  We are not talking about free-riding employees at a large company or business.  Instead, this case is about home-health-care workers -- who do their work in the home of those they serve (in some cases, family members). A while back, Illinois decided that these home-health-care workers were, for purposes of unionization, public employees.  

It is, obviously, a crucial aspect of the Church's social teaching that work and workers must be treated in accord with their dignity and that workers have a right to, among other things, associate so as to promote and protect their rights and interests.  None of this means that labor unions are always on the side of the angels -- too often, especially in the education context, they are not -- but it certainly means that, again, the right to form labor unions must be protected and respected.  But, it seems to me, this does not necessarily mean that home-health-care workers, simply because they are paid through Medicaid, constitutionally may or morally should be required to support financially a public-employee union.  Stay tuned. 

Monday, January 20, 2014

Spring HIll College in Dr. King's Letter from a Birmingham Jail

In reading Dr. King's Letter from a Birmingham Jail earlier today, I took note of something that I had not previously noticed before. The letter is from one minister to others. It is not a speech or an essay, but a letter addressed to "Fellow Clergymen." And an important theme of the essay is the failure of "white moderates" and of the "white church": 

I suppose I should have realized that few members of the oppressor race can understand the deep groans and passionate yearnings of the oppressed race, and still fewer have the vision to see that injustice must be rooted out by strong, persistent and determined action. I am thankful, however, that some of our white brothers in the South have grasped the meaning of this social revolution and committed themselves to it. They are still all too few in quantity, but they are big in quality. Some -such as Ralph McGill, Lillian Smith, Harry Golden, James McBride Dabbs, Ann Braden and Sarah Patton Boyle--have written about our struggle in eloquent and prophetic terms. Others have marched with us down nameless streets of the South. They have languished in filthy, roach infested jails, suffering the abuse and brutality of policemen who view them as "dirty nigger-lovers." Unlike so many of their moderate brothers and sisters, they have recognized the urgency of the moment and sensed the need for powerful "action" antidotes to combat the disease of segregation. Let me take note of my other major disappointment. I have been so greatly disappointed with the white church and its leadership. Of course, there are some notable exceptions. I am not unmindful of the fact that each of you has taken some significant stands on this issue. I commend you, Reverend Stallings, for your Christian stand on this past Sunday, in welcoming Negroes to your worship service on a nonsegregated basis. I commend the Catholic leaders of this state for integrating Spring Hill College several years ago.

But despite these notable exceptions, I must honestly reiterate that I have been disappointed with the church. I do not say this as one of those negative critics who can always find something wrong with the church. I say this as a minister of the gospel, who loves the church; who was nurtured in its bosom; who has been sustained by its spiritual blessings and who will remain true to it as long as the cord of life shall lengthen.

When I was suddenly catapulted into the leadership of the bus protest in Montgomery, Alabama, a few years ago, I felt we would be supported by the white church. I felt that the white ministers, priests and rabbis of the South would be among our strongest allies. Instead, some have been outright opponents, refusing to understand the freedom movement and misrepresenting its leaders; all too many others have been more cautious than courageous and have remained silent behind the anesthetizing security of stained glass windows.

In spite of my shattered dreams, I came to Birmingham with the hope that the white religious leadership of this community would see the justice of our cause and, with deep moral concern, would serve as the channel through which our just grievances could reach the power structure. I had hoped that each of you would understand. But again I have been disappointed.

I have heard numerous southern religious leaders admonish their worshipers to comply with a desegregation decision because it is the law, but I have longed to hear white ministers declare: "Follow this decree because integration is morally right and because the Negro is your brother." In the midst of blatant injustices inflicted upon the Negro, I have watched white churchmen stand on the sideline and mouth pious irrelevancies and sanctimonious trivialities. In the midst of a mighty struggle to rid our nation of racial and economic injustice, I have heard many ministers say: "Those are social issues, with which the gospel has no real concern." And I have watched many churches commit themselves to a completely other worldly religion which makes a strange, un-Biblical distinction between body and soul, between the sacred and the secular.

Nestled in the middle of this indictment of the white church, King commends "the Catholic leaders of this state for integrating Spring Hill College several years ago." According to the Spring HIll College website:

Spring Hill College, Alabama’s oldest institution of higher learning, was founded in 1830 by Michael Portier, Mobile’s first Catholic bishop. Spring Hill is also the first Catholic college in the Southeast, the third oldest Jesuit college and the fifth oldest Catholic college in the United States.

Bishop Portier originally purchased 300 acres of land to establish a seminary and boarding school. The site sat on a hill six miles west of Mobile and afforded panoramic views of the city and its harbor. Portier recruited two priests and four seminarians from France to staff the school. He originally intended the boarding school to provide students under the age of 12 with an education in classical and modern languages, mathematics, geography, astronomy, history, belles lettres, physics and chemistry. Portier soon relaxed the age restriction, and the boarding population increased from roughly 30 students the first year to almost 130 by 1832. Initially, the bishop himself taught Greek at the school and, due to the lack of priests, pressed seminarians into service as teaching assistants or monitors. Difficulties staffing the school persisted until 1847, when Portier recruited French Jesuits from Lyon to take over.

Like other Jesuit colleges, Spring Hill followed a European model in which students began attending at age 9 and studied subjects at both the secondary and collegiate levels. The sons of Mobile’s established families – Catholic or otherwise – attended Spring Hill High School and the college. The high school persisted until its closing in 1935.

In 1932, the college launched an extension program with Saturday classes aimed at adults. For the first time women were admitted as full-time students to the program. Successive presidents of Spring Hill, Patrick Donnelly, S.J., and Andrew Smith, S.J., brought landmark changes to the college after World War II. Both men viewed racial segregation as an ethical and moral dilemma, and in 1954 Smith presided over the enrollment of nine African-American students to the college. For 10 years Spring Hill was the first and only integrated college in the Deep South.