Wednesday, August 29, 2012
A public notary in Brazil has registered a three-person partnership as a legally recognized civil union. (The BBC report is available here: http://www.bbc.co.uk/news/world-latin-america-19402508.) Brazilians are waiting to see how other public officials treat the notary's action.
The notary, Claudia do Nascimento Domingues, who serves the city of Tupa, "said the move reflected the fact that the idea of a 'family' had changed. 'We are only recognising what has always existed. We are not inventing anything. For better or worse, it doesn't matter, but what we considered a family before isn't necessarily what we would consider a family today'."
Now, the reason of principle that intimate partnerships of three or more persons cannot truly be marriages, and should not be legally recognized as marriages or the equivalent, is . . . Well, remind me again, what is it?
Of course, the reason is fairly clear for those (I'm one) who understand marriage as a conjugal partnershp, i.e., a multi-level (and in that sense comprehensive) union of husband and wife founded on the biological ("one-flesh") communion made possible by the sexual-reproductive complementarity of spouses. For an explanation and defense, see here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1722155 ; for a more detailed statement of the case, and response to critics, see the forthcoming book by the same authors under the same title.) But what is the reason for those who propose to ditch the conjugal understanding of marriage and replace it with a conception of marriage as sexual-romantic domestic partnership (what one opponent of the conjugal conception describes as your relationship "with your Number One Person")?
To be sure, there are those (such as the three hundred plus self-described "lesbian, gay, bisexual, transgender and allied activists, scholars, educators, writers, artists, lawyers, journalists, and community organizers," including such notables as Gloria Steinem, Barbara Ehrenreich, and Kenji Yoshino), who have already signed on (quite literally) to the proposition that there are no reasons of principle (or valid reasons of any kind) for conceiving marriage or the equivalent as a two-person relationship, as opposed to a relationship of three or more individuals (triads, quadrads, etc.) in a polyamorous sexual partnership. (See the manifesto "Beyond Same-Sex Marriage," http://www.beyondmarriage.org/full_statement.html, expressly demanding legal recognition of, among other things, "committed, loving households in which there is more than one conjugal partner.")
But what is the reason of principle that can be given by those who, while rejecting the idea that sexual-reproductive complementarity is an essential element of marriage, do not---or do not yet---wish to jettison the idea of marriage as the sexually exclusive union of two, and not more than two, persons? Is there a reason of principle? Or is the belief in "two-ness" mere bigotry?
Late last week, the Washington Post published a photo essay entitled Liberty Through the Lens: Faith. This piece was the third in a series discussing liberty. The first lens concerned women and the second the economy. This article on faith was more than simply photographs. The Post asked a few dozen Virginians: "Do you think a political leader should rely on his or her religious beliefs in making policy decisions? How much does it matter to you that a candidate shares your religious beliefs?"
Given Virginia's connection to Thomas Jefferson and his thoughtful but complicated relationship with religion and Christianity, I found this to be an interesting exercise. Moreover, Virginia's identity as a "critical state" in the upcoming election, as well as our current national dialog regarding religious freedom, provide an interesting backdrop to the responses. While the questions posed have obvious shortcomings (For example: What is meant by "rely?"), the sample of participants small, and the answers limited in length, the piece can provide some food for thought.
I offer some observations, but suggest MOJ readers look at the piece themselves. First, my read of the responses was that the majority of participants are comfortable with or affirmatively favor political leaders drawing on religious beliefs or moral codes which the political leaders authentically hold. In other words, while there may have been a preference for some level of morality or faith, labels were an insufficient substitute for many. Second, many also underscored the importance of tolerance or respect for plurality from leaders. Finally, I observed something that continues to defy the "party operatives" and media. People are complex. When one looks at the brief description of the profession and religious identity of the participant, one might expect a certain answer. Often, the reader may be surprised by the response. Here at MOJ many have commented on our collective resistance to the media's label that "women voters" think one way or "Catholic voters" think another. This provides an anecdotal confirmation that religion and morality are complicated issues when they intersect with policy making, and many citizens understand that…even if the media and political pundits refuse to give the electorate that much credit.
My former student, Michael Fragoso, has the first of a two-part essay up at
Public Discourse,
explaining (among other things) why it is a mistake to say, as some do, that (something like) "because Republican judges helped to give us Roe v. Wade and Casey, it doesn't really make a difference, for purposes of securing a more just and constitutionally sound abortion-law regime, which party is in charge of nominating and confirming judges." Part Two of the essay will run tomorrow . . .
Monday, August 27, 2012
As some MOJ readers may already know, Chicago’s Archbishop, Francis Cardinal George, O.M.I., recently found out that he has some cancerous cells in his body. Doctors are trying to determine if this is a new cancer or a recurrence of the bladder cancer he had six years ago. Please keep the Cardinal in your prayers.
In his weekly column (available here) Cardinal George offers a beautiful reflection on the desire we all have for control in our lives, the absence of that control, the inevitability of death, and our relationship with God. It is well worth reading.
So suggested / noted / warned Bob Dylan (responding, perhaps, to Milton's Lucifer). I thought about Dylan's song during yesterday's First Reading:
Joshua gathered together all the tribes of Israel at Shechem,
summoning their elders, their leaders,
their judges, and their officers.
When they stood in ranks before God,
Joshua addressed all the people:
"If it does not please you to serve the LORD,
decide today whom you will serve,
the gods your fathers served beyond the River
or the gods of the Amorites in whose country you are now dwelling.
As for me and my household, we will serve the LORD."
But the people answered,
"Far be it from us to forsake the LORD
for the service of other gods.
For it was the LORD, our God,
who brought us and our fathers up out of the land of Egypt,
out of a state of slavery.
He performed those great miracles before our very eyes
and protected us along our entire journey
and among the peoples through whom we passed.
Therefore we also will serve the LORD, for he is our God."
Relatedly (maybe): The legal enterprise proceeds from certain premises and "serves" certain ends, for better or worse. That enterprise can be evaluated, it seems to me, in part by (i) evaluating those premises and ends, and (ii) evaluating how well the enterprise respects those premises and serves those ends, whether or not they are worthy of respect and service. It seems to me that part of the "Mirror of Justice" / "Catholic Legal Theory" project should be to remind . . . everyone that "thinking like a lawyer" should involve (i), as well as (ii).
Sunday, August 26, 2012
In my Catholic Social Thought course, our first class was occupied by what I call "meta-issues" -- questions involving the nature of the course, its place in a law school curriculum, and its relevance to the lives of future lawyers. One of the difficult questions involves the relationship of academic inquiry, academic freedom, and the authentic association of an institution of higher learning with Catholicism. We read Ex Corde Ecclesiae, and we also read material in some tension with it; I particularly like a couple of Stanley Fish's chapters in Save the World on Your Own Time as one type of counterpoint.
This evening I read an interesting old essay by T.S. Eliot called, "Modern Education and the Classics," which I may use in the future. Modernists like Eliot and Pound can be useful on these sorts of questions, as they were occupied with their own varieties of 'aggiornamento' ("make it new!"). Here is one helpfully complicating passage, at least to introduce some doubt against the general skepticism that any relationship does or could exist between education and religion:
Questions of education are frequently discussed as if they bore no relation to the social system in which and for which the education is carried on. This is one of the commonest reasons for the unsatisfactoriness of the answers. It is only within a particular social system that a system of education has any meaning. If education today seems to deteriorate, if it seems to become more and more chaotic and meaningless, it is primarily because we have no settled and satisfactory arrangement of society, and because we have both vague and diverse opinions about the kind of society we want. Education is a subject which cannot be discussed in a void: our questions raise other questions, social, economic, financial, political. And the bearings are on more ultimate problems even than these: to know what we want in education we must know what we want in general, we must derive our theory of education from our philosophy of life. The problem turns out to be a religious problem.
Saturday, August 25, 2012
Over the past couple of weeks since
I posted my last contribution on The
Examination of Conscience and the Examen, a number of my friends here at
the Mirror of Justice have commented
on various dimensions of the educational and other institutions with which we
are associated. A common question that these comments raise emerges from the
issue of what it means to be Catholic or to have a Catholic nature. I shall
address a simpler matter today that has some bearing on this question which we
tackle here quite often, namely, Catholic legal theory: what is it and how do
we teach it? Or, what is it all about? But first I must note something about
the challenges of the present age that interfere with the projects that bear
the moniker “Catholic.”
As some of my friends here at the Mirror of Justice have recently noted,
both the Church and law schools face great pressures today. Albeit of different
origins, these pressures are nonetheless manifested in strains and tensions
that interfere with the projects of Christian discipleship that include teaching
law in the classroom and in submitting publications which somehow reflect this
same discipleship. In the context of the academic enterprise of teaching law
that is in accord with Catholic teachings and Christian principles, we also
face the problems of those whom we instruct. One major problem is the
increasing expenses our students face in pursuing their legal education;
another concern confronting the schools with which we are associated is the
declining interest amongst the eligible population of becoming a lawyer, which
leads to the increased competition amongst law schools to demonstrate while the
declining number of applicants should attend a particular institution rather
than some other school. The forecasts about the declining student populations indicate
that this downtrend is not cyclical but permanent.
But rather than focus on declining
student populations and increasing costs (both of which are of vital concern to
educators and their students), I would suggest that another challenge to the
Catholic law professor is how to serve as a catalyst for those students whom we
do encounter to be models and practitioners of virtuous persons who have a
solid sense of what the law is about and what it is not about. While not as
dramatic an issue as whether we will have students to teach and what we are
asking them to pay, it is still a central issue that ought not to be avoided.
What is the basis of my assertion?
Within the Catholic contribution to
the development of legal institutions, the natural moral law and the
development of the virtuous lawyer have always played a central role. Yet these
topics are typically absent from legal education today and discussions or
debates about what legal education should be about and include. If one doubts
my contention, you need only attend a faculty meeting that addresses the crises
that law schools are presently facing and take stock of the solutions that are
being proposed and determine for yourself if virtue and the natural moral law
are discussed by colleagues.
Again, I don’t have any profound
insights to offer that are novel or innovative about this. What I do propose for
consideration as these weighty matters are encountered is a rather simple set
of thoughts that should intersect the daily life and prayer of any Catholic or
Christian. These thoughts might be considered in the context of simple
questions asked if not throughout the day then at least throughout the week.
The first is: what is it all about? Well, for the Catholic and I think most
Christians, it is about salvation and
preparing for union with God. I realize that the Catholic and Christian law
professor cannot specifically include this precise formulation in his or her
work of teaching or lecturing or publishing, but on the other hand, our work
does not automatically preclude the asking of this question “what is it all
about” as we prepare our classes and draft our lectures, articles, essays, and
books. While this is not an especially innovative thought as I have said, it is
important and relevant to the work of the Christian law professor who is
preparing people to enter a noble profession and to be citizens of the two
cities that each person will inhabit—the cities of God and of Man.
While he was not a particularly
religious individual, Dr. Ben Franklin purportedly said something that is
beneficial to the point of this entry I am posting today. At the conclusion of
the Constitutional Convention in 1787, Franklin was asked by a Mrs. Powel
whether the Framers had given the people of the United States a republic or a
monarch. As Max Farrand’s collection of the Records of the Federal Convention
memorializes Franklin’s response, Farrand reported in this manner: “A republic
replied the Doctor if you can keep it.” When we are asked by colleagues,
prospective students, or, for that matter, anyone else who might inquire “what
have we given to society and to education,” might we reply by saying that it
has something to do with our discipleship and presenting the Church’s wisdom on
the meaning of human existence? And quickly following this is another matter:
can we keep this understanding of human nature and human enterprise alive not
just for the present moment but for posterity? It will take effort, but effort
is always a close companion of discipleship.
RJA sj
Friday, August 24, 2012
In the wake of Todd Akin's idiotic and insensitive (albeit quite overhyped in the press and by partisans) recent remarks, and following up on Robby's
post about the strikingly abortion-and Akin-centric character of the developing Democratic Convention schedule,
it seems worth remembering who is actually in, and out, of the "mainstream" when it comes to the morality and regulation of abortion.
