Following on Rob's posts from Saturday's plenary session, I wanted to praise the work of Bob Cochran and the other organizers of the Pepperdine Nootbaar Institute's law and religion conference over the weekend and the hospitality of Dean Deanell Tacha. In addition to many of the MOJ bloggers, it was great to be in the company of such a large number of generous and interesting colleagues engaged in law and religion. Mike Paulsen and Andy Koppelman started off the conference with a pair of provocative papers and that pace was sustained through the Saturday panel with James Davison Hunter and Steven Smith. I've often stolen the line from Stanley Hauerwas that I don't believe in California. But discussing law and religion in Malibu amid bright sunshine and 70-degree weather, enjoying Paco's Tacos with Kevin Walsh in West LA, and looking over Santa Monica Bay from the Getty Villa are enough to make me wonder if perhaps there really is a California after all.
Monday, February 27, 2012
Pepperdine Law and Religion Conference
Wasserman on the Ministerial Exception and Jurisdiction
I noted previously the Supreme Court's determination in Hosanna-Tabor v. EEOC that the ministerial exception is a limitation on the merits of an employment discrimination claim, not a subject matter jurisdictional defense (and my agreement with Greg Kalscheur's ministerial-exception-as-jurisdiction argument). Howard Wasserman (FIU) has a thorough and interesting exploration of that topic here. Among Howard's basic moves is a distinction between prescriptive and adjudicative jurisdiction:
Prescriptive jurisdiction, and its corresponding enforcement jurisdiction, contrasts with adjudicative jurisdiction. The latter is a court’s root power to adjudicate—to hear and resolve legal and factual issues under substantive legal rules, and to provide the adjudicative and remedial forum to resolve claims of right. Adjudicative jurisdiction has nothing to do with the ultimate success of a claim on its merits, but rather focuses solely on whether the court has the power to provide a forum for considering and resolving the legal and factual disputes under those rules in either direction.
Failure to distinguish prescriptive jurisdiction from adjudicative jurisdiction is the fundamental flaw in the adjudicative jurisdiction approach to the ministerial exemption. Greg Kalscheur and others frequently emphasize the jurisdictional referent in church autonomy and in the religion clauses, speaking of limits on “federal jurisdiction” or “civil jurisdiction” or of constitutional limits on the jurisdiction of civil or secular government and authority.
Again, however, a court’s jurisdiction to adjudicate a case under existing substantive law is different from Congress’s jurisdiction to bring that substantive law into existence in the first place. The ministerial exemption is indeed a constitutional bar on civil jurisdiction. But the bar is not on the court’s civil jurisdiction to decide the case before it, but on Congress’s civil jurisdiction to enact legal rules regulating churches’ conduct toward ministerial employees. The nonexistence of an enforceable legal rule means the statutory claim to enforce that rule fails—on the merits.
That said:
But religious institutions remain special even if the ministerial exemption provides a merits victory. The Hosanna-Tabor Court insisted that the First Amendment “gives special solicitude to the rights of religious organizations.” It is, or should be, an equally powerful statement on the penultimacy of the state that the church lies beyond Congress’s prescriptive jurisdiction. The religion clauses function just as much as a structural protection for religion when they bar Congress’s exercise of its prescriptive regulatory authority and place religious organizations beyond the reach of secular law. The church’s status as a special competing and predominant sovereign is doing just as much work in placing church personnel and organizational decisions beyond congressional regulation. The broader symbolic point—that the church enjoys unique constitutional immunity from the state’s sovereign reach on some issues—remains. And that symbolic point can be made without logical, theoretical, and doctrinal incoherence.
As they say, go read the whole thing.
Santorum, Kennedy, and Religion
Rick Santorum has recently attacked John Kennedy’s speech to the Houston Ministerial Association on separation of church and state. In some respects, if his interpretation of the speech is correct, he has a point. Santorum maintains that the separation of church and state should not be absolute, that there should be a role for people of faith in the public square, and that government should not be able to impose its views on people of faith. On these three points, he is at least partially correct. Separation of church and state has never been absolute in the United States. Religious arguments have always been made in the public square. “In God We Trust” appears on the coins. (Removing the slogan would be a political non-starter). In the absence of overriding reasons, government should not be able to restrict the actions of people of faith when it violates their free exercise of religion.
I assume that Santorum believes that there are limits on the free exercise of religion. I doubt that he would prevent government from restricting a religion that places human sacrifice at the heart of its liturgy. I do wonder whether he thinks that government should be able to give religious reasons for its actions. Our current system welcomes religious arguments in the public square, but requires that any government action responding to those arguments must be grounded in a fully adequate secular justification.
Finally, the reports of Santorum’s remarks do not discuss his position on the central issue in Kennedy’s speech. Kennedy was responding to the argument that as a Catholic, he would be taking his orders from the Vatican. In response, he took refuge in church and state constitutionalism. I think this was unsatisfactory. As a Catholic and as a President, he was required to act in a moral way as he understood morality so long as he could give a secular justification for his actions. The deeper question was what kind of Catholic he was. Most Catholics take the views of the Pope and the Bishops seriously, but if in conscience they cannot accept the teachings of church leaders, they do not. Kennedy’s speech should have emphasized that as President, he ultimately had to answer to his conscience, not the Pope’s. To put it another way, Kennedy’s speech should have emphasized freedom of conscience, not separation of church and state.
No doubt, Santorum rejects some statements of church leaders which he does not regard as official parts of the Magisterium. Perhaps he accepts all parts of the Magisterium. But I wonder if he believes he is required to accept all parts of the Magisterium regardless of what would otherwise be his personal views. Whatever the religious and moral merits of a position requiring acceptance of the Magisterium no matter what, it is a political cross that is rather heavy to bear. If Santorum believes that there is a strong role for moral conscience against church teachings (as Aquinas did, even if it led to excommunication), he should say so.
cross-posted at religiousleftlaw.com
Sunday, February 26, 2012
Cardinal Wuerl: "Seek First the Kingdom"
Cardinal Donald Wuerl of Washington, DC has written a splendid new book entitled Seek First The Kingdom: Challenging the Culture by Living Our Faith. Here is a link to the book on Amazon.
http://www.amazon.com/Seek-First-Kingdom-Challenging-Culture/dp/1612785050
The Cardinal is a master catechist. He has a wonderful gift for explaining Jesus's teachings, as understood by the Church, and their application to our lives today. The book includes a Foreword by Mary Ann Glendon and an Afterword by me. It is available in an inexpensive paperback edition, and can be read profitably by Catholics (and non-Catholics who are interested in what Catholicism teaches and why) from high school age on up.
Forgive Us Our Trespasses: A Brief Lenten Reflection on the 'Debt Deflation of the Soul'
The analogy is perhaps a bit strained, but only a bit: That posture which many of us take as bright, shining, miraculous but nevertheless blemished beings at Lent is not altogether unlike that which many non-wealthy folk take as fabulously creative and value-adding, while nevertheless liability-burdened, beings during debt deflations like that which our national economy's experienced since 2008.
In both cases, ordinarily vital, bouyant and energetic creatures, freighted with obligations that can never be fully repaid, necessarily hunker down and go quiet for a time. And in both cases, there is something profoundly healthy and natural, rather like inhaling and exhaling - like breathing - in this cycling between inwardness, self-reassessment and pecatum-purging on the one hand, outwardness, self-giving and action-in-the-world on the other. Few if any can put the point better than did Lao-tzu, Heraklitos or, especially, the Ecclesiast: there is indeed 'a time to every purpose/ under Heaven.'
But there might also appear to be an important difference between the two cases, at least on the surface of things. For in the Lenten case, after the tomb comes the rising. Easter Sunday follows Ash Wednesday and Good Friday as a matter of divine course, quite irrespective of what we as responsible agents might do. The debt is forgiven no matter the merit.
New life and resumed growth in the sphere of temporal economic activity, it might be thought by contrast, need not follow as a matter of course. Retrenching citizens who hunker down under debt overhang can drain economies of their lifeblood indefinitely for year after collectively unnecessary year, laying waste to lives, livelihoods, even peace and stability. Such is one lesson that the theory of longterm underemployment equilibria and liquidity traps, as well as the recent 'lost decades' experience of Japan and the less recent global experience of the 1930s and -40s, all make plain. Any counterpart to this in 'the spirit realm' would require that there be no Easter Sunday reliably following Good Friday in that way day follows night.
I'd like to suggest, however, that beneath the surface of things the two cases still bear a deep inner unity. For just as the temporal debt deflation requires the collectively focussed, determined, and concentrated work of 'Jubilee'-style debt-restructuring and -forgiveness as well as public investment to trim back the overhang from both ends, reopen the door and jolt people back to employment-productive activity, so does full emergence from Lent require both (a) an act of forgiveness and (b) active appropriation by all of us as individuals and as faith communities of the resurrection gift. (To hold off or hold out on that active appropriation, I suspect, is what the Medievals had in mind in describing the sin of despair - a full theologico-categorical counterpart, it would seem, to the temporal economic category of deflation-prolonging depressed 'animal spirits.')
Easter Sunday might well follow Ash Wednesday and Good Friday as a matter of divine course, then, but there is neither anything 'automatic' or 'mechanical' about it, nor anyone who grows in response to it without zestfully seizing and acting upon it. In that sense, for each of us, both our and another's responsible - and indeed responsive - agency is as needful in the 'divine economy' as it is in the temporal.
Let us, then, remain inward-turned and self-cleansing for as long as is needed in both spheres right now. But let us also, soon, vigorously act upon what we thus learn and receive when the time comes - as surely it will, come this spring.
Incidentally, although I have mentioned and linked here to the Way Forward piece on our ongoing debt deflation before, I've recently learned there's a video version of the same. It stems from an event in DC late last year at which my co-authors Dan Alpert and Nouriel Roubini and I shared the podium with the redoubtable Liaquat Ahmed, Bruce Bartlett, and Leo Hendry. Also present were a host of great American public servants like Senator Don Riegle, as well as such luminaries as Dean Baker, NPR's Marilyn Geewax, and PBS's Hedrick Smith. Interested readers can view it here.
A restorative Lenten season to all.
Saturday, February 25, 2012
Live-blogging from Malibu: Steve Smith on secular legitimacy
Steve Smith presented a paper on the secular paradigm of legitimacy:
What makes a government legitimate? Elements of tradition, public display, and effectiveness, but will also be made in light of intellectual premises that prevail in that society -- divine right, consent of the governed, etc. That is the paradigm of legitimacy. We've moved from a Christian paradigm to a secular paradigm. In a pluralist society, legitimacy paradigms depend on strategies of assimilation and marginalization.
Does a secular paradigm require that criteria of legitimacy be secular (e.g., consent of the governed), or that the government be secular in order to be legitimate? Today society practices strategies of assimilation to inculcate secularism (e.g., through public schools), but proponents have made use of other strategies, including the neutrality strategy (i.e., government is neither favorable nor unfavorable to religion, but simply neutral), which tends to marginalize religion by pushing it to the private sphere. In many parts of the world, including the U.S., religion has not cooperated with the secular paradigm, and secularization has not proved to be irresistable.
The secular paradigm is in serious distress. For example, though Rawls might fit comfortably within a largely secularized culture, it does not fit with a pluralist but still religiously vibrant culture. His favored position doesn't fit the world as it actually is.
What do we have to look forward to? A paradigm in crisis can recover, and an ailing paradigm can persist until another one comes along. It is possible that our most fundamental commitment is to making sure that the government is based on the consent of the people, rather than to making sure that the government is secular. Relationship between religion and democracy has been reassessed in places like Iraq; may also ultimately be reassessed in a place like America.
Live-blogging from Malibu: Calo responds
Zachary Calo offers a second response to Prof. Hunter:
Prof. Hunter's account of Christians being in the world offers important models for Christians engaging the law in a world of intensifying and unstable pluralism. In the absence of any shared moral meaning, law just becomes a weapon in the culture wars. But the problem of pluralism goes deeper than this, for post-secularity challenges the idea that law possesses a universal meaning. Legal universalities that were developed in modernity depended on severing law from religion. Now post-secularity undermines these foundations of the modern legal project. Legal modernity remains resistant, though, and post-secularity may not have penetrated the modern legal imagination to the extent that Hunter believes it has.
Post-secularity has shown how legal modernity has subsisted on inherited intellectual and cultural capital. Question is not whether there should be more or less secularism, but how to give law meaning. Theology might offer itself as an alternative legal imaginary, emerging in the space afforded by pluralism. Hunter's "faithful presence" -- i.e., that Incarnation is the only adequate reply to the current condition, inhabiting the world rather than trying to change the world -- is an intriguing model. Law creates and preserves space for culture. Law is not just about power, but also about contextualizing the meaning of power. The problem is not with power as such, but with lack of cultural resources to exercise it properly. The task of Christian theological jurisprudence is to relocate law and law's meaning within a theological jurisprudence. Law is oriented for, and ultimately consummated by, grace. Law is grounded in a basic act of trust, in the meaningfulness of creation, and the possibility of justice.
Live-blogging from Malibu: Brennan responds
Patrick Brennan responds to Prof. Hunter's paper:
Law is not just about power. It's also about authority, which is legitimate power, and it's up to human action to make it legitimate by deriving it from sources beyond law itself that are relatively independent and objective. Hunter takes a minimalist view of the natural law, relegating it to one footnote, and noting that people have found it very difficult through the centuries to know the natural law. Indeed. Historically the Church has taught that the divine law is available to assist us in our understanding of the natural law, which can be difficult to ascertain due to our fallen state. So we need institutionalized sources of understanding the natural law and the good. The Church, through the Magisterium, provides such a source, making it possible for humans to access the natural common good and the supernatural common good. Expanding the realm of the possible requires us to take seriously the possibility of reinfusing our law with the insights of the Judeo-Christian tradition. It may seem like a long shot, but one of the heresies under which we live is that the notion that "the supernatural is finished." If we have hope, that hope should lead us to recover the sources of authority in our living, and allow those sources of authority to unfold in human law.
Live-blogging from Malibu: James Davison Hunter on the common good
This morning at Pepperdine's fabulous religious legal theory conference, we are kicking off with what promises to be a productive exchange on law, religion, and the common good featuring James Davison Hunter, Patrick Brennan, and Zachary Calo. What a better time for some weekend live-blogging?
Prof. Hunter kicks things off. Here is a (very) rought outline of his comments:
The shared narrative of secularization drives both conservatives and liberals, leading them to approach the relationship of law and religion as zero-sum game. But now we are seeing the debunking of the secularization thesis, and this may change the terms of the debate about the relationship between law and religion.
Post-secularity brings us to recognition that secularity is not a value-neutral proposition. The distinctions between law and religion as separate spheres are overdrawn. The state cannot be neutral toward the public good, and the secular is not neutral; it is also a particular normativity. Tension, conflict, and violence are inherent to pluralism, and the state always takes sides. Difference tends to be absorbed into new working agreements about the common good.
Arguably the most important way pluralism expands today is in moral and metaphysical differences -- e.g., abortion. They are metaphysical because they are rooted in different worldviews. Can late modern American society aborb differences as deep as these? We don't know yet. The state no longer plays role of limiting or containing pluralism; now is a free agent whose patronage is intensely sought after by the parties. Conflict is between those who have competing understandings of the good society, and the battle envelops the First Amendment. Progressives want a broad definition of religion for Establishment purposes and a narrow definition for Free Exercise purposes; conservatives want the opposite for both. The First Amendment battle is geared toward what consensus over the good will look like.
Two possible directions that we can take: 1) We will see a hardening of the lines of conflict, with laws less a tool of justice and more a way of forcing compliance. 2) The alternative would be to recognize that power of state is unstable and unsustainable source of social order. Because state is clumsy instrument rooted in coercion, it will never address the human elements that make these problems poignant in the first place.
For law to be about more the power, current conflation of public and political must be disentangled. Law itself may not be able to offer this path, but law, policy, and politics must protect space where culture, in its generative capacity, is free to do its work. We would need broader understanding of religion for both Establishment and Free Exercise purposes.
Friday, February 24, 2012
Oscar Watch
On the heels of Mary Leary's powerful reminder of how our culture of celebrity worship can obscure and undermine our vision of the dignity of the person (particularly of women), I sort of hate to admit where I've spent last Saturday & will be spending tomorrow -- my traditional best-picture Oscar nominee movie watching marathon with my son. But, that being said, here are a couple of random observations about Catholic (and even one legal) aspects of this year's nominees.
First, my son & I both agree that this year's slate of nominees is remarkable for its relative wholesomeness -- many of the movies focus on the importance of the bonds of love, and the overwhelming importance of families in our lives. Though many of the families portrayed are broken in various ways, the brokenness tends to be acknowledged by the characters as a bad, rather than celebrated as a good, and the ideal of the family toward which so many of the characters are striving in these movies tends to be something very compatible with the Catholic notion of family.
Second, though Tree of Life does appear to be profoundly suffused with Catholicity -- except maybe towards the end where I think it might veer into new-agey-ness (though one of my students who is currently exploring entering the Benedictine order disagrees with me there) -- I think it's a terrible movie. It might be a great graduate school seminar, but it's a tedious movie.
Third, I enjoyed The Descendents much more than I expected. I was entranced by the movie's theme of stewardship and our responsibility for what (and whom) we are given to care for in this world. And what Catholic lawyer wouldn't be tickled by a movie that uses the Rule Against Perpetuities to help make the point that the things (and people) entrusted to us are given to us for a limited time?
Fourth, The Artist is a perfect jewel of a movie. Yes, it's a silent, black & white movie. But it's a magnificent piece of art, and utterly, thoroughly charming.
Finally, what Oscar-related post of mine would be complete without a reference to the nun who kissed Elvis, Mother Dolores, the Hollywood starlet who gave up fame and her fiance to answer God's call to the cloistered life of the Benedictine Abbey of Regina Laudis? Well this year, she's going to actually be at the Oscars! Her story is the focus of an Oscar-nominated best documentary short film: God Is the Bigger Elvis. Oh, wouldn't it be a grand sight to see her striding down that Red Carpet in full habit?
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