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.

Wednesday, November 14, 2012

The Enemy Within

 

From literature, television, film, and music, authors, originators, and producers have used the theme of “the enemy within” to describe problems within an institution, organization, or society caused by its own members rather than by externs. This is not to say that in all cases, the “the enemy within” was malicious or a traitor, but it was an opponent to something of importance that was associated with and held by the community with which it, the “enemy,” chose to associate itself. I am using the term “enemy” as it is defined by the OED as “one who opposes” something. The Church has found herself across salvation history to be such a community in which persons claiming to be members have challenged core beliefs of the Church arguing that these principles of faith were outdated, wrong, or flawed and in need of abandonment. The Church in the United States, which is a local church of the Universal Church, has been the target of such persons, the “enemy” (i.e., those who are opposed) for some time. Evidence of this is particularly palpable during the election seasons of the last several decades. The fact that I disagree with certain views expressed by others who use the descriptor “Catholic” to describe themselves does not mean that I hate them or want to fight them: it means that I disagree with them and am opposed to their views on issues where we have different, perhaps even diametrically opposite views.

There is for many of us a correlation between principles of Catholicism and matters that are at the forefront of public policy debates and disagreements of the day. Like those with whom I disagree on these matters, it is important to offer the perspectives I hold for the benefit and consideration of others. That is why I write today to express a difference of opinion with two fellow Catholics, one whom I know and one whom I do not. For purposes of my discussion, identity is not essential to my posting (although it will be known by anyone who chooses to click the hyperlink), but the positions they advance are. My disagreement is not personal; rather, my opposition is to their perspectives and contentions which I believe are flawed because their justifications for both are deficient and miss something that objective reason would indicate to be otherwise. So, here goes…

The first view [here] takes issue with those bishops who took a strong and public stand on various initiatives regarding the meaning of marriage and the legislative or other initiatives to recognize same-sex marriage. The fact that individual bishops, episcopal conferences, and the Holy See have “weighed in” on the matter and opposed these initiatives and pointed out that these initiatives, if successful, will lead to other problematic initiatives down the line does not make the bishops who made statements along these lines “sarcastic.” The use of analogy is important in public policy debate, and it is certainly an important element of practical legal reasoning. The issues raised by the bishops were done with serious intent in mind; they were not an attempt to be sarcastic. To consider the basis of this contention in a legal context, who would have thought that Griswold would have led to Eisentadt; who would have thought that Roe would have led to abortion-on-demand? To have raised the prospect of where landmark case progeny would travel might have also been viewed as “sarcastic,” but look what happened. If this author upon whose posting I am commenting had investigated further, he would know that there are proponents of other forms of marriage who are preparing to advance their causes once same-sex marriage takes deeper root.

Furthermore, to take to task Catholics who are opposed to the same-sex marriage initiatives by arguing that these persons are using precious resources “to combat marriage equality” gives a meaning to the important word “equality” that is not sustainable or durable. As I pointed out in my last posting a few days ago, there are profound reasons for agreeing that same-sex relations that might be called marriage are not the equal of opposite-sex relations. Yet, we live and toil in an age where the simple mention of the term “equality” is all that one needs to do to make his or her argument stick, or so it seems. Nonetheless, objective reason that is constituted by clear, careful, and critical thinking will demonstrate that the use of the term “equality” to advance to acceptability of same-sex marriage is a mistaken use of the term’s meaning. To argue that bishops and other members of society are engaged in problematic “combat” that will undermine “equality” is unreasonable. To argue that these members of the Church should abandon what some term as “culture war politics” does not grasp the reality of the situation nor the matters which are at stake. The sound bite culture may find attractive such a phrase to describe a position with which they disagree and which they wish to see eliminated from the public debate, but the phrase “culture war politics” does grave disservice to the robust duties that accompany the responsibilities and rights of citizenship.

The further justification offered by this writer that the efforts of bishops and many Catholics to oppose same-sex marriage will “push[] younger generations of Catholics out of the church [sic]” needs to be evaluated. This statement presupposes that “younger generations of Catholics” understand and accept the first principles of the faith with which they are associated. In fact, many, perhaps most, do not for reasons I explained in my last post:

 

more and more young people are being subjected to teachings which use the moniker “Catholic” but, in fact, are not. As the “More than a Monologue” initiative partly sponsored by Fordham and Fairfield Universities illustrated and which I have previously discussed on these pages, nominally Catholic institutions of higher education, which have an extraordinary influence on the young, are not teaching what the Church teaches; moreover, these institutions are not exploring why the Church teaches what she teaches in spite of assertions to the contrary. For the most part at many institutions that claim the moniker “Catholic”, students are being exposed to a shadow magisterium which is a corruption of rather than intellectual fidelity to Church teachings on the neuralgic issues of the day including marriage. While these young may be receiving a great deal of education, they are not receiving the wisdom of the Church; hence, their knowledge of what the Church teaches and why she teaches what she does is being eviscerated.

 

So, I don’t think it is the bishops and those faithful to the Magisterium who are pushing the younger generations of Catholics out of the Church.

The source relied upon by this author to make his point insists that “Younger Catholics don’t want our faith known for its involvement in divisive culture wars.” This assertion/justification is also in need of careful evaluation. What do these young people understand our faith to be about? If it is all about social justice as the strongest voices of contemporary culture explain that loaded term, something crucial is missing. Our faith certainly includes corporal works of mercy that are designed to serve “the poor and marginalized,” but first and last it is about salvation and repentance of sins. I think too many Catholics today, and not just the young, have little or no clue about this core tenet. If they young are being “push[ed]…out of the church,” the source for this has been misidentified.

I now come to the second perspective [here] that requires a response. It begins by stating that the U.S. Catholic bishops “took a beating at the polls” in last week’s election. I was surprised to learn that they were on any ballot as part of a legislative initiative or as candidates. It would be accurate to say that bishops supported various initiatives that were parts of closely contested contests in which the bishops had strong support amongst tens of millions of voters. I took solace in the fact that this perspective acknowledged the Constitutional rights of all persons (including bishops, priests, religious, and the lay faithful) to participate in the political process and to debate the issues even when it appears that one party or one candidate might favor particular issues and the other party or candidate may not. When all is said and done, it is the issues that are in the forefront; what the candidates support and do not support follows.

The critique of this second perspective was not the Constitutional right of the bishops and other Catholics but rather what is effective and prudent about the tactics or strategies the bishops and the allied faithful take. Considerations of prudence and effectiveness are always important considerations for those who participate in public life, but so is the truth and ensuring that the truth about the matter under discussion is not sacrificed. To suggest that those bishops who remained silent on the neuralgic issues for presumed reasons of prudence and effectiveness and those who spoke out as being “political bishops” does a grave disservice to the office of bishop. If we could ask him today, I think John Fisher would agree with my take.

One also has to ask the honest question: who is pushing the issues (e.g., abortion, same-sex marriage, euthanasia, etc.) that are being pushed? Is it the bishops, or is it those lobbies and political organizations that have taken on the crusade of making dramatic changes to society and its institutions? The truth of the matter is that the bishops have spoken out on many issues of great importance, including those dear to many Americans. However, when the bishops don’t concur with powerful political forces about particular issues, the shepherds are incorrectly labeled as “political”, i.e., meaning wrong, imprudent, and ineffective. While this writer asserted that he was not “challenging church teaching” but “questioning political strategy,” the rest of us have to consider the implications well understood by Thomas More of the legal expression “qui tacet consentire”—silence gives consent. By remaining silent (or prudent, if you prefer), would it appear to many fellow citizens that the bishops were condoning or approving positions on crucial issues that are, in fact, in manifest opposition to first principles of the faith? They need only look at the example of Cardinal Innitzer of Vienna in the late 1930s to answer the question.

To argue that parishes should be “free of partisan politics” inaccurately captures what is at stake: fidelity to Christ, His holy Church, and enduring principles of the faith. If the parish is only a gathering place for “social justice” and doing good on certain issues but not those bearing some controversy, the faith of such a parish is thin. The bishops who disagree with this proponent are chided as not listening; but, to whom should they be listening, to what should they be paying attention? I think they are listening, and I think they are paying attention. Moreover, they realize what is at stake, and a sufficient number of them have indicated their acceptance of the responsibilities of their teaching office so that they are speaking out and in a clear manner that is understandable by their fellow Americans and fellow Catholics.

The second writer seems to argue that if something is legal, e.g., abortion or same-sex marriage, the bishops should leave it alone and move on. Our nation and our world have experienced too many situations in which something was declared legal but was morally flawed and contrary to the first principles of the faith. This is why Martin Luther King, Jr. stated that he:

 

would agree with St. Augustine that “an unjust law is no law at all.” Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality.

 

Should Archbishop Rummel have left alone what was legal when he confronted the evils of segregation that were legal, at least for a while? Surely bishops, clergy, religious, and the lay faithful must reasonably expect that their actions or tactics may “enrage their opponents,” and in Archbishop Rummel’s circumstance that was the case as it was with Dr. King. But neither of these witnesses to Christ let threats of public officials or the rage of some Catholics or other believers stop them from doing what the faith required. The fact that the bishops of Massachusetts opposed the move in that state to legalize same-sex marriage should not make us overlook the revenge taken by advocates for SSM who, as this author suggested, “fought exempting Catholic foster care and adoption services” on the grounds of “political payback.” It was revenge for being Catholic and fidelity to the faith that led to these consequences; moreover, the “political payback” was in reality intimidation designed to remove the Church from its proper role in the realm of matters dealing with public morality.

This is how tyrants operate; but tyranny should not stop any of the faithful from the call to and the responsibilities of discipleship. There fact that there are divisions within society should not preclude the truth about important matters from being spoken. The argument that there is no truth or different kinds of truth about the same issue is no argument at all; rather it is an exercise of a will unhitched from objective reason that wants to avoid truth and its objectivity and its beneficial meaning for the common good.

I beg to differ with this author when he suggested that the positions of the bishops on neuralgic issues “are so weak that they cannot allow students to hear their opponents.” Frankly this is not the issue. I don’t think any bishop would mind a program on a Catholic campus or at some other Catholic institution, such as a parish, where the faithful were fully informed of the issues and were given an accurate presentation of what the Church teaches and why she teaches what she teaches in opposition to the contrary positions of the day. Unfortunately we now live in a culture where all too often positions that are opposed to core Catholic beliefs are disguised as acceptable Catholic positions when, in fact, they are not. Bishops, pastors, Catholic educators, and any other person who is faithful to the Magisterium would see this as the case.

Finally, this second perspective argues for a different “political strategy” by the bishops. If that means that the bishops and any other faithful Catholic must sacrifice core teachings or remain silent, this is not a strategy but a capitulation to the first principles of Catholicism. While capitulation may be the safer course of action for the near future, it is not the faithful course; rather, fidelity to Christ and the teachings of His Church are.

 

RJA sj 

California votes to keep the death penalty

There was some good news (e.g., the vote in Massachusetts to reject legalized euthanasia) on the pro-life front, but -- in my view -- the news was mostly very bad.  (I'm not among those who think that Pres. Obama's administration and policies are helpfully characterized as "pro-life.)" 

One piece of bad news that has gone relatively unnoticed is the vote in California to retain the death penalty.  My sense is that the Democratic Party, which certainly does not suffer for lack of influence in California's politics, did little to try to secure abolition in California, which would have been huge.  But, of course, with few exceptions (like Sen. Feingold), Democrats have, even when in control of government (see, e.g., 2008-2010 at the national level) have done little to try to move the ball on capital punishment, while at the same time benefitting from the arguments of the "neither party is really pro-life; the GOP is anti-abortion but the Democrats oppose capital punishment" variety.

I oppose capital punishment, but also believe its use is constitutional, and that it should not be abolished (overtly or gradually) by federal courts.  It should be abolished through politics.  So, the California decision is a disappointment.  It would be nice if the party in power in that state took steps to abolish it.

Tuesday, November 13, 2012

Colombo, "The Naked Private Square"

Ron Colombo has a new piece (with a superb title) on the religious free exercise rights of corporations.  Agree or disagree, the article is both provocative and timely, as it relates to some of the religious freedom controversies currently vexing courts.

ADDENDUM: See also this interesting post by Michael Helfand related in part to the issue of conscience rights of for-profit organizations. 

Covenant House "Sleep-Out," November 15

I wanted to call a little attention to this event in New York City on November 15 sponsored by Covenant House, in which my friend Jim Horvath will be participating.  Covenant House does very good and needed work on behalf of homeless, abandoned, and abused youngsters.

Monday, November 12, 2012

Rethinking the "Just War" [Updated]

Rethinking the 'Just War,' Part 1
By JEFF MCMAHAN

The "just war theory" has influenced the ethical positions on violent conflict of both church and state for centuries. But consensus on that theory has begun to erode.

Rethinking the ‘Just War,’ Part 2

By JEFF MCMAHAN

Why the traditional version of the just war theory must be rejected.

Saturday, November 10, 2012

One answer to our present questions: "Renewing hospitality"

Unhealthily gloomy (or triumphalistic) about Tuesday's election-results, and what they tell us about our divisions, disagreements, and challenges?  One suggestion, Anna Williams suggests, at First Things, strikes me as a really good one:  "More dinner parties."  Count me in.

More on NDCEC's Justice Conference

Like Rick, I'm greatly enjoying the Notre Dame Center for Ethics & Culture's Fall conference on "The Crowning Glory of the Virtues:  Exploring the Facets of Justice."  Judging by the quality of the conference, Carter Snead is proving himself a worthy successor to David Solomon as Director of the Center. (Not that there was any doubt that he would be, but that is a hard act to follow.)

These conferences are always marked by the breadth of the speakers, disciplines, and topics addressed.  As much as I love having my mind stretched by a few days of such wide-ranging and stimulating discourse, I always leave feeling slightly discouraged by the ever-increasing list of things I really want to read.  Alisdair MacIntyre yesterday afternon made a compelling case that any American Catholic could better understand her place in our current polarized political climate by reading the poetry of Charles Peguy, and memorizing more of the poetry of Walt Whitman.  Robby George & Michael Sandel's colloquy on "The Moral Limits of Markets" added to my reading list Sandel's new book, What Money Can't Buy, which I now feel I ought to read so I can decide whether Robby or Sandel was correct about whether it's wrong of me to try to get my kids to do their homework by paying them money, or by prodding them to do it "because they love mommy", and whether or not I ought to call doing either of those things "bribing", or "incentivizing" or some new word that hasn't yet been invented.

For those of you who might want to join the fun here today for a day's worth of programming that ends with an evening talk by John Finnis on "The Priority of Persons Revisited", if you aren't an early enough riser to catch the panel with Rick Garnett, Michael Moreland & Paul Horwitz chewing the fat on religious liberty & justice, you can slip in at 3:15 to hear me (as well as Paolo Carozza and Andrea Simoncini) on a panel on "Elementary Human Experience and the Foundations of Law."

 

Friday, November 9, 2012

Gratitude to Romney-Ryan for the Pro-Life Witness and Work Remaining to Be Done: Wise Words from Ben Stein

In his ruminations on the recent election results, Ben Stein includes these thoughts:

"It is the mark of a genuinely great campaign that Romney and Ryan did not back down one inch on the main moral issue of our time, the mass murders of the unborn. This is the primary evil of our era and it may take years to make things better, but as the saying goes, that Dr. King used to say, “Truth forever on the scaffold, wrong forever on the throne, yet that scaffold holds the future and beyond that dark enclosure standeth God, within the shadow, keeping watch upon his own” (paraphrased for this occasion). You can call it anything you want, but abortion is a wicked evil and we will never be what we should be as long as we treat is as a right. No one has the right to choose to kill an innocent human being."

UPDATE:  David Buysse points out that Dr. King's favored quote is drawn from "The Present Crisis" (c. 1844) by James Russell Lowell:

Careless seems the great Avenger; history's pages but record
One death-grapple in the darkness 'twixt old systems and the Word;
Truth forever on the scaffold, Wrong forever on the throne,—
Yet that scaffold sways the future, and, behind the dim unknown,
Standeth God within the shadow, keeping watch above his own.

The whole poem is worth reading here.

 

Withering on the vine…

 

As the dust settles from Tuesday’s election, various pundits are seeking the ambo to proclaim that the results are consistent with Catholic teaching or not. One illustration of this is from a faculty member at the Jesuit theologate and school of theology at Berkeley, CA [HERE]. She begins her dotCommonweal contribution by proclaiming that Tuesday’s results in four states were historic for advancing the cause of same-sex marriage.

The professor/author argues that the increasing support for same-sex marriage is a “generational issue,” and by this I think she means that, with the passage of time, more and more Americans will agree that opposition to same-sex marriage, for whatever reason, puts one “on the wrong side of history” as she quotes a member of a California-based organization which favors the recognition of same-sex marriage.

The professor/author appears to be in favor of the changes reflecting this “generational issue” and does not want to be “on the wrong side of history” when she asserts that some Catholics “are hanging on to the good news of Catholic Social Teaching, at least as they see it” by claiming that Catholics for “pro-gay marriage” justify their position on “centuries of Catholic social teaching” which is based on “Christ’s primary message… of love.”

The professor/author is critical of Magisterial teaching to the contrary which she considers limited and faulty. She concludes that Tuesday’s approvals of same-sex marriage in various legal redefinitions of marriage demonstrate that “Catholics voting for marriage equality are showing that they have indeed learned the lessons of Catholic teaching, both the social teaching of the equal dignity of all people and our own rich heritage on marriage.”

I am not sure where she gets her support to substantiate these conclusions, and her views necessitate a response on several fronts.

I can see how she contends that increasing Catholic support is becoming a “generational issue” because more and more young people are being subjected to teachings which use the moniker “Catholic” but, in fact, are not. As the “More than a Monologue” initiative partly sponsored by Fordham and Fairfield Universities illustrated and which I have previously discussed on these pages, nominally Catholic institutions of higher education, which have an extraordinary influence on the young, are not teaching what the Church teachers; moreover, these institutions are not exploring why the Church teaches what she teaches in spite of assertions to the contrary. For the most part at many institutions that claim the moniker “Catholic”, students are being exposed to a shadow magisterium which is a corruption of rather than intellectual fidelity to Church teachings on the neuralgic issues of the day including marriage. While these young may be receiving a great deal of education, they are not receiving the wisdom of the Church; hence, their knowledge of what the Church teaches and why she teaches what she does is being eviscerated. In addition, both catechesis and evangelization are suffering rather than prospering as a result of false doctrine being disseminated by a growing number of teachers who are employed at the once-traditional but now-nominally Catholic institutions.

But more needs to be said about the professor/author’s dotCommonweal posting. My next point concerns her contentions about centuries of Catholic social teaching supporting the generational shift that erroneously believes that Catholic social doctrine is in favor of same-sex marriage. A brief excursion through applicable papal encyclicals, dicastery documents, Conciliar documents, the Catechism of the Catholic Church, and the Compendium of the Social Doctrine of the Church will rectify her contentions about advocacy for same-sex marriage and the positions of those she favorably quotes in this regard which she believes accurately reflect “the equal dignity of all people” as advanced by Catholic social thought.

This brings me to her understanding of the meaning of equality. John Courtney Murray was on to something when he explained that norm making consistent with the natural moral law process that undergirds our federal republic is founded on objective human intelligence comprehending objective reality. I have, both here and elsewhere, delved into the equality argument for same-sex marriage. But in brief, let me demonstrate why her equality argument falters by illustrating with one argument the truth that same-sex marriage is not equal to opposite-sex marriage: let us consider that two planets similar to earth, alpha and beta, are being colonized by humans. Opposite-sex couples are sent to alpha; same-sex couples are sent to beta. Neither planet will have the capacity to rely on technology-assisted reproduction. In one hundred years, more earthlings go to planets alpha and beta. What will they find? They will find that alpha is still populated with humans but beta will not be. Her equality argument fails because the claims upon which it is based are false.

Another point requiring some attention here is the professor/author’s claim that “Christ’s primary message is one of love.” Is it really? There is no question that our Lord taught and lived love, but I submit that his primary message was about salvation when he exhorted us to avoid sin and its near occasion. Moreover, the Lord came to remind us that we have free will that ought to be exercised in the direction of virtue and away from vice and sin. As he told the woman who sinned: go and sin no more. And, when one turns from sin toward seeking forgiveness, redemption is at hand as the prodigal son discovered. Regrettably, the professor/author’s misunderstanding of Christ’s “primary message” can be used to lead people away from salvation and into sin and the loss of salvation. Should a professor of moral theology really be exhorting such a thing?

This brings me to my final point for today, a point that I have previously made here at the Mirror of Justice and elsewhere but a point requiring repetition once again. This point is founded on another of Christ’s teachings: he is the vine, and we are the branches. Our Lord reminded us that we, as vines, can prosper and bear fruit if we remain faithful to him. But, if we so choose, we can sever our relation with him and with what God asks of us; when we do, we shall wither. When the latter occurs, we can be bound up and consigned to a status in which we are permanently removed from him and what God promises. In the context of Catholic higher education, we might recall Archbishop Michael Miller’s reliance on this very theme from Saint John’s Gospel (the vine and the branches) when he developed the notion of evangelical pruning of educational institutions which claim to be Catholic but, in fact, are not. If I may borrow from a tack taken by the professor/author, might this be a moment when Catholics need to understand what Catholic social teaching really is and, if necessary, relearn it in order to avoid withering on the vine of Christ?

 

RJA sj

 

Thursday, November 8, 2012

"The Final Gladness"

A book that really changed my life is Fr. James Schall, S.J.'s, Another Sort of Learning (buy it here). I gather that he has announced his plans to retire from Georgetown University.  Here (HT:  First Things) is the announcement of his "last lecture", "The Final Gladness", at Georgetown, on December 7.  Seriously:  If you are in D.C., don't miss this.