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.

Monday, October 14, 2013

Thank you, New Orleans City Council, for the clock, bell, and tower

I had the good fortune to spend this weekend in New Orleans celebrating a nephew's baptism. One of the highlights was a Sunday morning trip to the French Quarter, including wanderings around Jackson Square and St. Louis Cathedral. At 7:45 a.m. some of the bars still had partiers from the night before, but most of the quarter was in clean-up mode getting ready for the new day. Everything really came to life in the Square around 8 a.m. (although not the performance artist in metallic makeup who was performing as a statue).

The cathedral is a beautiful church with a fascinating history,and it has provided a form of continuity to a plaza that has witnessed transition from French to Spanish to French to American rule. It should be no surprise to learn that the clock tower was put up before the Establishment Clause was held to be incorporated against the states, but it was surprising to me to learn that the city government paid for part of the Cathedral. According to the Cathedral's website, the City Council paid for the Cathedral's clock and bell, as well as for part of the tower holding them:

In 1819 a New Orleans clockmaker, Jean Delachaux, was authorized by the trustees to obtain a suitable clock to be placed in the facade of the Cathedral.

As this was a project of general civic interest, the City Council agreed to the expense of buying the clock and its bell and also to share in the cost of erecting a central tower to house them. Delachaux brought the clock and bell with him from Paris and Latrobe records in his journal an incident which occurred when he was about to place the clock's bell in the tower:

When the new bell was ready to be put into the tower, I wrote him (Pere Antoine) a letter in Latin to apprise him of the circumstance, in order that, if the rites of the Church required any notice of it, he might avail himself of the occasion and do what he thought necessary. He thanked me, and I had the bell brought within the Church. After High Mass, he arranged a procession to the bell and regularly baptized her by the name of Victoire, the name embossed upon her by the founder.

 

More on Pope Francis, misunderstandings, risks, and older brothers

Returning to my ongoing conversation-with-myself about the content and reception of some of Pope Francis's recent and highly publicized less-formal interventions:   I got together the other night with some good friends-and-colleagues here at Notre Dame to reflect on the America interview and the "letter to the Italian atheist."  This gathering gave me an excuse to re-read both items, and I was struck, again, by (at least) three things:  First, I really like their warm and inviting tone.  While. I admit, I am not entirely sold on the idea that magazine interviews and semi-private correspondence is the ideal vehicle for the Pope's pastoral or teaching roles, it seems impossible to deny (and, of course, why would one want to?) the appeal of these and similar writings and statements.

Second, I'm struck -- hammered, really -- by how badly these writings have been presented in most press coverage.   (This means, among other things, that some "conservatives" who have been complaining -- or worse! -- about the Pope's statements are really complaining about un-made statements.)  For example, it was not evangelization but "proselytism" -- which has long meant in Church teaching and papal writings a particular unworthy mode of communication that is inconsistent with the human dignity of the hearer -- that was dismissed by the Pope as "pious nonsense."  And, the Pope did not say, in America, that Catholics or the Church are "obsessed" with abortion and marriage; he did say that he did not think it was necessary to speak about these issues "all the time" (no one thinks that it is, it seems to me) and that it is better to speak about them in context, in the right way, as connected with the deep, core truths of the Gospel and about the human person.  And, his point that we cannot "interfere spiritually" with people is an echo of John Paul II's reminder that the Church must "propose, not impose" -- it was not a statement about laws relating to marriage or about sexual morality.  And on and on.  (To be clear:  I am not here "parsing the Pope", in an effort to avoid or water down something he said that I don't like.  I am venting frustration over the fact that it's being reported, said, and complained that he said things he didn't say.)

Third, I did have a sense that John Allen was (as he so often is) right to raise the possibility of the Holy Father needing to respond to an "older son problem", in the sense that some Catholics -- I'm thinking particularly of those who have, without being "obsessed" or "legalistic", heroically labored in the trenches of the pro-life movement -- might wonder if their work -- which is, after all, precisely the kind of love-and-mercy-in-action that the Pope is challenging all of us to take up -- is getting short-changed a bit.  It would be a blunder -- not so much a doctrinal or "culture war" one, but a pastoral one -- if the Pope or a bishop were to -- unwittingly, obviously -- cause the self-sacrificing and inspiringly other-regarding people (I am thinking of Ann Manion, the incredible person behind Indiana's "Women's Care Center") who have given a lot to help vulnerable women and unborn children to doubt the Church's gratitude and support.

Now, I think that some of my friends at the gathering were (not without reason!) confused or even frustrated by my simultaneous expressions of (a) appreciation for the Pope's statements, (b) criticism of misinterpretations and misrepresentations by misguided critics and perhaps-disingenuous fans, and (c) concerns about the message some statements could send but, well, there it is.  Now . . . what does any of this have to do with law?  Maybe (for now) this:  A challenge facing any legislator or legislature is the crafting, in a prudent way, of laws that work -- that move the ball in the direction of their object or goal, in a reasonably efficient way, with reasonably low risk of unintended sub-optimal consequences and side-effects.  It will be the rare law that comes with no such risk or causes no such consequences, but still we press on with law-making.  What choice do we have?  Well, given all the givens about communication, context, and the press's blind-spots and pathologies, it will be a rare papal statement -- whether a letter to a news-editor or to the universal Church -- that will not be misunderstood or misrepresented by some.  It would be wise, and pastoral, for Church leaders, including the Holy Father, to do what they can to reduce the risks of misunderstanding or the dangers of misrepresentation but, at the end of the day, these risks and dangers are ineradicable and, I suppose, have to be faced if the Church is going to be salt and light, teacher and prophet, friend and "field hospital."   

Friday, October 11, 2013

A church plan exemption as part of a deal to end the government shutdown

NBC News reports that a "big development" in yesterday's Obama-House GOP meeting was that President Obama "opened the door to giving Republicans a concession to reopen the government--with the understanding that the concession would be something the GOP would have ALREADY GOTTEN during normal budget talks (maybe like repeal of the medical device tax)." (emphasis in original)

Another proposal for the negotiators to consider is giving a concession that accomplishes through legislation what would otherwise be accomplished through litigation.

The particular proposal I have in mind would be to expand the religious employer exemption from the contraceptives mandate to employers who participate in church plans. The legal rationales for such a proposal have already been laid out in comments filed by the Church Alliance this past April in response to the Notice of Proposed Rulemaking. To those comments, I would add the observation that the strength of the legal claims in Little Sisters of the Poor v. Sebelius provides another reason to consider such an exemption. If church plans and plan members are going to prevail anyway, but only after some (deserved) embarrassment to the Administration, it would be better to get something for it now instead.

A church plan exemption would not put an end to all of the litigation, by any means, and it is less (in my view) than RFRA already requires. But it would be a visible "get" for GOP negotiators and a costless "give" for the Administration (at least insofar as the interest groups who would be upset by the "give" recognize that the likelihood of the Administration actually prevailing in the Little Sisters case is rather low).

Wednesday, October 9, 2013

Dreher on the religious liberty and SSM debate

Rod Dreher has this essay at The American Conservative about the ongoing debate -- to which many of us have contributed -- about the extent to which religion-based objections to expanding the legal category of marriage to include same-sex couples can, will, or should be accommodated in the context of, e.g., anti-discrimination laws.

I Always Suspected I Liked Books

But I never knew how much until I read this article by Evan Hughes. Books seem to possess some surprising Good Old Booksvirtues, including:

* Unlike other more pliant media, they resist what the author calls "disaggregation" but what one might also call "fragmentation" or perhaps even "atomism."

* They resist the opposite phenomenon: bundling or lumping. They are difficult to market as a packaged good. The book consumer wants his book--all of it, and nothing else.

* They are insulated from the charms of "sensual verisimilitude." Or, where such matters of the flesh are concerned, sensuality peaks in a low-tech medium and increases with age.

* "Sharing" isn't at all the point. Keeping is the point. Living together with--for a good long time--is the point. Seeing them with you, year after year, is the point. If you borrow a book, for heaven's sake (and for the lender's) return it.

Books want to be attached. They want to be conserved and they don't want to leave your side. They want to be loyal and they expect loyalty in return. Books don't want to be free. 

Monday, October 7, 2013

On Coherence and Confusion

 

Today is the feast of Our Lady of the Rosary, formerly known as Our Lady of Victory. The memorial commemorates the victory of the Holy League against the Ottoman Empire on this date in 1571. The Christian victory over the superior Ottoman forces was an important milestone in preserving, at least for a while, the Christian identity of Europe. Today the Board of Trustees of Loyola Marymount University (LMU) may vote on the whether the university’s health coverage for staff and faculty maintains or jettisons elective abortion coverage. This vote is a different milestone which will substantively affect the Catholic identity of LMU.

Some within the temporal media have chimed in the matter of LMU’s crossroads. For example, yesterday, October 6, 2013, The New York Times in an article by Ian Lovett, entitled “Abortion Vote Exposes Rift at a Catholic University,” begins by mentioning that not three weeks have passed since Pope Francis asserted that the Church is obsessed with abortion, but the author cites the pope with his words, “We have to find a new balance.” The New York Times did not mention that within hours of his La Civiltà Cattolica interview being published and from which these words were taken, the Holy Father addressed the International Federation of Catholic Medical Associations and discussed the matter of abortion in greater depth. If one were truly interested in what Pope Francis has to say about abortion, I would think it relevant to consider in coherent fashion his statements on this, or any, subject so that a brief, perhaps casual remark could be put into its proper context.

In remarks of September 20, Pope Francis exhorted the members of the Catholic Medical Associations to be witnesses and diffusers of the culture of life. Well, this same exhortation should apply to any institution that uses the moniker “Catholic.” As the pope explained, being Catholic entails a great responsibility, in accordance with the Christian vocation to culture, to remind others of the transcendent dimension of human life that bears the divine imprint of God’s creative work. In order not to leave any ambiguity in the meaning of his words, Pope Francis further asserted that, “Every child who, rather than being born, is condemned unjustly to being aborted, bears the face of Jesus Christ, bears the face of the Lord, who even before he was born, and then just after birth, experienced the world’s rejection.”

Coherent explanation is important to the law as it is to presentation of news and opinion. In the law, a segment of the law ought not to be read and applied out of the context of the rest of the same law or laws that relate to the same subject matter under in pari materia. But coherence is also important to informing the public of important matters of general concern that affect the common good, and the issue of abortion is one of these matters. To suggest, as The New York Times does, that matters of “academic freedom” and “social justice” are at stake if the Trustees of LMU discard elective abortion coverage from the health care plan is incoherent and confuses this important decision that goes to the soul of what LMU is and is not. Regarding academic freedom, there is little attention paid to the freedom of LMU to remain true to its Catholic nature. It seems that only the freedom of those who are not faithful Catholics is worth protecting. When it comes to the matter of “social justice,” does “social justice” demand the continuance of the snuffing out of innocent human life? Since 1973, there have been over fifty million abortions attributed to the United States. This is for me, and I am sure for others, a genuine concern about social justice, but this factor is also relegated to important facts not worth mentioning by some in the temporal media.

If today’s vote is a “symbolic battle for the university’s soul” as The New York Times suggests about the LMU vote, then perhaps Our Lady of Victory will bless her faithful sons and daughters at LMU with the wisdom necessary to confront the challenges of this struggle which are more than symbolic.

 

RJA sj

Movsesian on St. Vartan's Armenian Cathedral

My colleague Mark Movsesian gave this fine address on the occasion of the 45th anniversary of the construction of St. Vartan’s Armenian Cathedral on the east side in Manhattan (I was privileged to attend a service there with Mark a couple of years ago. It is quite lovely). A bit from Mark’s talk, which touches on matters we frequently discuss here at MOJ:

[T]he builders chose to dedicate the cathedral to Vartan. We all know the story of Kach Vartan—“Brave” Vartan. In the fifth century, Armenia was under the control of the Persian Empire. The Persians were Zoroastrians, and they deeply distrusted Christianity. Christianity provided a link to Byzantium, and thus posed a threat to Persian rule. So the Persians attempted to force Armenians to renounce Christianity in favor of the Persians’ own religion.

Some Armenian nobles did convert. But others, led by Vartan Mamigonian, organized a revolt. In 451, at the Battle of Avarayr, Vartan led a vastly outnumbered force against the Persian army. In a letter to the Persian commander before the battle, Vartan and his companions explained that they were willing to resist—and die, for they could hold no illusions about their chances of success—in order to remain Christian:

From this faith no one can shake us, neither angels nor men, neither sword, nor fire, nor water, nor any, nor all, horrid tortures… If you leave to us our belief, we will, here on earth, choose no other master in your place, and in Heaven choose no other God in place of Jesus Christ, for there is no other God. But should you require anything beyond this great testimony, here we are; our bodies are in your hands…  Do not, therefore, interrogate us further concerning all this, because our bond of faith is not with men to be deceived like children, but to God, with Whom we are indissolubly bound and from Whom nothing can detach and separate us, neither now, nor later, nor forever, nor forever and ever.

The Persian army crushed the Armenians at Avarayr. Vartan and eight of his generals were killed. The revolt continued, though, and the Persians eventually concluded that their campaign of forced conversion was too costly and gave it up. Our Church has viewed Avarayr as a great moral victory and has honored Vartan and his companions as Christian martyrs and saints to the present day.

It’s easy to understand, then, why the builders dedicated this cathedral to St. Vartan. First, it was a way of linking the Armenian story to the American. St. Vartan’s story fits very well with foundational American ideals. It would be wrong to understand Avarayr completely in today’s categories, of course; one should avoid that sort of anachronism. But the history of Vartan and his companions resonates with the concept of religious liberty that is so fundamental in American culture. Vartan and his companions were, in a sense, standing up for religious freedom—for the right to worship God. When they told the Persians that they would be loyal subjects, but that they would not give up Christ, they were anticipating, by many centuries, the arguments of waves of immigrants to America, many of whom came to this continent precisely so that they could worship God free from state compulsion. Naming the new cathedral for St. Vartan was thus a way to introduce the Armenian story in terms that American culture would find immediately recognizable.

Second, the choice of St. Vartan also links the cathedral with another, older theme, one that predates America by millennia and which, sadly, continues, in parts of the world, even today. The other epithet for Vartan, besides “brave,” is Garmeer: “Garmeer” Vartan– Red Vartan, as in “bloody.” The story of Avarayr, after all, is a story of blood and sacrifice; of martyrdom—and survival. It is thus emblematic of our history as a Christian people from the beginning.  Many times in our history, it has seemed as though Christianity in Armenia would die at the hands of persecutors: Persians, Arabs, Mongols, Turks, Bolsheviks. Always, with God’s help, the faith has survived; not without great cost, but it has survived.

This lesson would have been immediate for the people who founded this cathedral. The Armenian Genocide of 1915, which some of the cathedral’s builders experienced firsthand, and which all of them had heard about from friends and relatives who had survived, was only one of many trials that Armenian Christians have had to endure. Surely, the choice of Brave Vartan, a martyr for the faith whose legacy down the centuries is one of strength and triumph, was meant to associate this new, American cathedral with the message of survival and rebirth.

For Armenian Christians in America today, the future looks secure. We apparently are not called to suffer persecution and martyrdom. For our brothers and sisters in other countries, though, very grave threats remain. Many congregants at St. Vartan today escaped the pogroms that took place in Baku and Sumgait in the 1980s; they know what persecution means. In Syria, Armenian and other Christians are being forced to flee, lest they become victims of a radical Islamism that seeks their subjugation. Our cathedral’s name, St. Vartan, should serve as a reminder to us that in other parts of the world, Armenian Christians continue to pay a price for their faith. The name of our cathedral is an admonition: We must do what we can to help our brothers and sisters who are persecuted for their religion—our religion–and welcome them when, like our ancestors a few generations ago, they come to America to seek a more stable life. May this cathedral be a symbol of hope to them.

Justice Scalia talks about some things-Catholic in interview

Lots of people are blogging and buzzing about the recent wide-ranging interview Justice Scalia gave to nymag.com.  Here is a link to some parts of the interview having to do with things-Catholic.  Interesting stuff.  I hope that this bit reminds everyone of a certain great scene in a certain great movie:

Have you seen evidence of the Devil lately?

You know, it is curious. In the Gospels, the Devil is doing all sorts of things. He’s making pigs run off cliffs, he’s possessing people and whatnot.  And that doesn’t happen very much anymore.

No.

It’s because he’s smart.

So what’s he doing now?

What he’s doing now is getting people not to believe in him or in God. He’s much more successful that way.

 

Some sad news

Edward Lev, beloved husband of MoJ friend Mary Ann Glendon of Harvard Law School, died unexpectedly this weekend after being hospitalized for what was thought to be a non-life threatening infection. He was 86 years old. Deepest condolences to Mary Ann and their daughters and grandchildren.

When he was 16 years old, Ed tried to sign up to fight in World War II. Later, he became a marine and fought in Korea.  He then went to law school and on to a distinguished career as a labor lawyer and litigator with the firm of Sullivan and Worcester in Boston. In retirement, he often did legal work for good causes and also pursued an intellectual interest---one which he and I share and enjoyed discussing---in Abraham Lincoln and the Civil War.

He was a fine man in every way.

Requiescat in pace.

Sunday, October 6, 2013

Evangelizing Mars

Suppose we discover an advanced human civilization on another planet marked by a great divide between economic and educational classes but suffering at both ends of the spectrum from a quiet desperation caused by a gnawing emptiness and hunger that grows continually deeper despite continuous consumption of everything from the latest technology to cheap and often vulgar entertainments to food to sex. An almost endless array of choices faces members of this society with no concrete criteria by which to choose among goods.  Loneliness abounds.  This civilization’s mythical religious traditions of the past no longer provide meaning and guidance in their lives. Although “reason” had always had a tough time supplanting the impulse of arbitrary power, “power” now reigns supreme in the face of collapse of faith in reason. The family structure is fractured as are the political structures. Social bonds have become completely untethered. In this “civilization” many employers view workers as disposable means to the end of production and the fetus in the womb is often viewed as a disposable by-product of sexual autonomy.

As we begin a natural process of interacting with these neighbors, Pope Francis encourages missionary orders to proclaim the Gospel to this newly discovered civilization.  How to bring Christ to this particular world with its myriad problems and dysfunctions?  As the missionaries discern how to preach the Gospel to this particular people at this particular time, they begin to realize the daunting nature of the task. But, they have a powerful ally – the law written on the heart - on their side.  Even if the people of this planet deny it, these missionaries know and trust that the natural law resides deep within each person.  Following the tried and true method of Alcoholics Anonymous, and risking the label relativist, the missionaries will take the people of this civilization and their consciences as they are, trusting that with this starting place, these consciences will develop to conform to the objective truth as their world is re-enchanted with the message of a God of mercy; a God who is Love – who loves so much that He sent His only Son to be one with them and to suffer and die for them.

The missionaries know that to be successful they must live the Gospel and literally become Christ for these people. As hope comes to this lost people, the missionaries know that they will be open to hearing about the authentic freedom and happiness that comes from living according to God’s design.  Although it will happen in fits and starts (after all, how many centuries did it take for the Christian West to root out the evil of slavery?), license – the false freedom of choice – leading to emptiness and despair will be replaced with living a moral life. For these people who breathe the narcissistic air of their culture, the saving hope of Christ must precede the Church’s moral teaching just as the adulteress experienced the loving gaze of and act of mercy from Christ BEFORE He tells her to go and sin no more.

This alien world is our world, or at least I suspect that Pope Francis thinks so. Despite the multiple signs to the contrary, many of us live, breathe, and operate as if this post-Christian civilization can be re-Christianized from within by re-membering our Christian, including moral, heritage. Pope Francis, I suspect, thinks we are wrong.  He thinks that that this iteration of Western Civilization – the civilization that emerged from the ashes of the Roman Empire – is dead.  We may not see it yet, but the dual projects of Reformation and Enlightenment, which have taken root over the last 500 years with the accompanying divorce of faith and reason and ultimate collapse of both, have run their course effectively destroying this iteration of Western Civilization. 


Vatican II prepared us to respond to this reality, but we needed 50 more years or so to make clear that the Church was not changing its fundamental teachings before we could begin to proclaim the Gospel to this alien civilization in which we live.  As this iteration of Western civilization dies and a new one rises from the ashes, we can rest assured that Christ will not abandon the Church.  Come Holy Spirit!