Monday, January 9, 2012
At the suggestion of several fellow MOJers, I offer below my opening remarks at the 2012 Conference on Christian Legal Thought co-sponsored by the Law Professors’ Christian Fellowship and the Lumen Christi Institute that took place this past Saturday, January 7th, at the University Club in Washington, D.C.
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Thank you and good morning. As many of you know, the Lumen Christi Institute is an academic institution founded in 1997, based at the University of Chicago, and dedicated to the revitalization of Catholic intellectual life on the nation’s campuses. This is the eighth year that the Lumen Christi Institute has co-hosted this one-day academic conference with the Law Professors’ Christian Fellowship and it has proven to be a very fruitful collaboration for both the Institute and the Fellowship, for Catholic and Evangelical law professors and indeed Christian legal academics from every denomination.
This summer, my wife and children and I visited my late Irish father’s family in England. We had a wonderful time visiting with our relations in north London, down in Surrey, up in Yorkshire, over in Birmingham and the Midlands and back in London. In traveling the English countryside I took the occasion to read a book I am embarrassed to say I had never read before, Evelyn Waugh’s Brideshead Revisited. The novel shares with us the recollections of Charles Ryder in his encounter with members of the aristocratic and Catholic Flyte family headed by Lord Alexander Flyte, the Marquess of Marchmain. Ryder forms a special friendship with Sebastian, the younger Flyte son, while the two are students at Oxford. Later in life, he becomes for a time the lover of Sebastian’s sister, Julia.
The Marchmains are a highly peculiar and deeply flawed family – flaws that stand in sharp relief to the family’s outward devotion to the Catholic faith: Lord Marchmain lives apart from the family with his mistress in Venice; Sebastian is a drunkard and perhaps a homosexual; Julia marries a politically ambitious non-Catholic divorcee. Although it is true that numerous human failings play a vital role in the make up of the narrative, the novel is not a critique of religion through an exposition of the hypocrisy of those who profess belief in the Christian faith. Nor is it a story in which the characters engage in lengthy theological disputations concerning the existence of God, the problem of evil, or the possibility of free will. Instead, Waugh described the book as a novel that “deals with what is theologically termed ‘the operation of Grace,’ that is to say the unmerited and unilateral act of love by which God continually calls souls to Himself.” Indeed, it may fairly be said that the principle actor in the drama that unfolds in the novel is not Charles Ryder or any member of the Marchmain family but the Holy Spirit.
The first passage in which religion is mentioned takes place during Charles’ first extended stay at the Flyte family residence, Brideshead Castle. Sebastian has attended Mass in the chapel on the grounds of the estate and Ryder offers the following remarks:
“Sebastian’s faith was an enigma to me at that time, but not one that I felt particularly concerned to solve. I had no religion. I was taken to church weekly as a child, and at school attended chapel daily, but, as though in compensation, from the time I went to my public school I was excused church in the holidays. The view implicit in my education was that the basic narrative of Christianity had long been exposed as a myth, and that opinion was now divided as to whether its ethical teaching was of present value, a division of which the main weight went against it; religion was a hobby which some people professed and others did not; at best it was slightly ornamental, at the worst it was the province of ‘complexes’ and ‘inhibitions’ – catchwords of the decade – and of the intolerance, hypocrisy, and sheer stupidity attributed to it for centuries. No one had ever suggested to me that these quaint observances expressed a coherent philosophic system and intransigent historical claims; nor, had they done so, would I have been much interested.” Evelyn Waugh, Brideshead Revisited 85-86 (1944)
I want to suggest that Charles Ryder’s description of his friend Sebastian’s religion is an accurate portrayal of how the vast majority of our secular colleagues in the legal academy view the Christian faith, and, by extension, the project of Christian legal thought. To the extent they think on it at all, most of our colleagues believe that Christianity is a “slightly ornamental hobby” that has “long been exposed as a myth.” They are convinced that the value of its ethical teaching – especially on the neuralgic issues of the day, issues that potentially intersect with law – is decidedly negative, indeed, dangerous to the point of being obscene and inhuman. Here Christianity exhibits intolerance (in, for example, its opposition to same-sex marriage and abortion) hypocrisy (in what its clergy preaches from the pulpit and how they actually behave) and sheer stupidity (in its opposition to the use of condoms in countries where AIDS is rampant). Where it doesn’t inspire hatred or repugnance it generates only indifference – its persistent appeal is an “enigma” that no one “feels particularly concerned to solve.”
Yet, unlike Ryder we know that Christianity does indeed express a coherent philosophic perspective and that it makes intransigent historical claims. Indeed, as those who have received the Gospel – the Good News for all humanity – we know that the claims of Christianity are not merely defensible but compelling. Moreover, as students of and participants in the Church’s intellectual tradition, we know that Christianity has something profoundly meaningful to say about law, and justice, and institutions, and authentic human flourishing.
The lack of genuine dialogue with our secular colleagues – those at the AALS who are sometimes referred to at this conference as being on “the other side of the street” – can be a source of frustration and disappointment. No one wants to be dismissed out of hand, to not be taken seriously – especially those who earnestly seek to engage in the kind of honest, searching conversation that is the bedrock of the academic enterprise.
Still, we can be confident that our efforts are not in vain. Our meetings together – Catholic and Protestant – bear witness to the Lord’s prayer “ut unum sint” – “That they be one” (John 17:21). The exchange of ideas, the critical thinking we perform together will, perhaps in ways we cannot now appreciate, contribute to the reclamation of law and the reform of legal education. The fellowship we share and the prayer we make is no “quaint observance” but a foretaste and anticipation of the fulfillment of human nature transfigured in the life of the Divine.
As we begin our day together we should bear in mind the theme of Waugh’s novel, the lesson that the once agnostic Charles Ryder learns in a way that no lecture at Oxford could possibly demonstrate – that grace abides, that we are not merely workers – laborers who toil in the legal vineyards of the Lord – we are being worked upon, silently, lovingly, mysteriously by unseen hands. We see ourselves as potters at work at the wheel, and so we are in a small way – but we are also clay in the hands (cf. Jeremiah 18:6; Romans 9:21) of Him who fashioned the sun and other stars and by His love moves them in the wheel of the firmament (cf. Dante, Paradiso, canto 33).
On the Mirror of Justice, we've often posted messages on the practical advantages of Catholic education, in terms of educational quality and opportunity for a diverse population of students. As Mirror of Justice readers may remember, my daughter attends Benilde-St. Margaret's High School school 
in the Twin Cities, which exemplifies those qualities. I am so very thankful that she is in an environment where being "cool" and being "smart" are not incompatible. At Benilde-St. Margaret's (BSM), to be the captain of the football team or a state tournament quality player on the girl's soccer team and also to be a top student is commendably seen as unremarkable.
But what makes Catholic education distinctive is our Catholic faith. The events of this past week at Benilde-St. Margaret's has reminded me of the inestimable value of a Catholic educational community when tragedy strikes, as administrators, faculty, students, and families come together openly in the name of Jesus Christ.
As reported prominently in the Minnesota news media (for examples, see here and here), as well as in the BSM high school press (see examples here and here), a sophomore playing on the BSM hockey team 
was checked from behind into the boards and suffered a spinal injury, leaving him hospitalized with paralyzing injuries. Although the injury came during the holiday break, within a couple of days, the whole BSM community had come together to support Jack Jablonski (the injured player) and his family, with visits to the hospital, school rallies in support, etc.
And, being a Catholic high school, prayer has been central to the support. When a young person suffers such a tragic injury, our faith can be tested, as we question how a loving God can allow such a thing to happen. But it is precisely in such times of hardship that we see the fruits of longstanding faith and the enduring value of a high school that is unapologetically and openly united as a community by faith in God.
A recent message from the BSM principal, Dr. Sue Skinner, says it so very well:
What happened to Jack doesn’t make sense and it’s very difficult to see him, his family and our community suffer. What does make sense is that we can talk about this in the light of our faith. What does make sense is the outpouring of love and support for each other. We know that God has not and will not abandon us. We have hope and faith that miracles happen. They may not always appear as we planned, but they appear nonetheless.
When classes at BSM resumed after the holiday break, there was a prayer assembly in support of Jack, that my daughter says was one of the most amazing experiences of her high school years. The quiet seriousness of the students, the intensity of their devotion and prayers, their heart for Jack, and the tangible unity of their faith (my daughter describes the students joining to make the Sign of the Cross almost as if in practiced synchronicity).
We have been delighted to learn from Jack's mother that he is improving, able to move his arms on command in ways that had not been anticipated and contradict the initial diagnosis (here). We do understand that his recovery will be slow and that his life has been changed forever. But the BSM community has shown that he will never been alone in that struggle. (Those who read this message and are moved to offer support to Jack and his family can find information here.)
And we have been deeply moved to learn that Jack has insistently been asking about the other team's player that checked him, wanting to know that he was doing well and wanting to assure him that he too should not carry this burden alone. When that other player courageously visited Jack in the hospital, the Star-Tribune (here) described him as bringing "tremendous guilt but left with forgiveness." Jack and his family understand that the check was not malicious and not intended to cause injury.
Such an admirable and loving response is reassuringly typical of the kind of young men and women being formed in faith and conscience at Benilde-St. Margaret's. I pray that we will see a flourishing of Catholic education -- and similar programs and schools for other faith communities -- in the years ahead. God knows that we all need it and will all benefit from it.
Greg Sisk
In the Fall of 2010, Prof. Michael McConnell gave a great lecture, to a packed house, at Notre Dame, on the occasion of the 50th anniversary of then-candidate-Kennedy's "Catholic speech" to the Houston ministers. The lecture is now available here, thanks to the Notre Dame Law Review. No surprise -- it's excellent. The conclusion:
We should not underestimate the importance of what he was saying. By running forthrightly, and not apologizing for his Catholicism, and winning, and showing himself to the world as a President of whom we all can be proud, John F. Kennedy won a great victory for inclusion and against bigotry. But we must not overlook the way in which he reduced religious belief to accident of birth, or more specifically, to baptism. The important question facing the nation was not whether forty million Americans baptized into a certain religion are excluded from the presidency, but whether many more millions of Americans are excluded from full political participation because they ground their understanding of justice and morality in the teachings of their faith. The intellectual descendants of Blanshard and Dewey are still raising this question. Those who spend time in philosophy departments and law schools will recognize its contemporary incarnations. And I am sorry to say that John F. Kennedy’s great speech in Houston provides these voices more ammunition than challenge.
This piece, in the NYT, has the usual eye-roll-inducing bits, but also some nice stuff, like this:
“What weighs on me the most,” he said in an interview in December, “is the caricature of the Catholic Church as crabby, nay-saying, down in the dumps, discouraging, on the run. And I’m thinking if there is anything that should be upbeat, affirming, positive, joyful, it should be people of faith.”
Or, as he recently said on the show to the Rev. James Martin, a Jesuit priest who writes about the importance of humor: “We priests, and religious sisters and brothers, sometimes give the impression of being crabs, that we are burdened, and that things are so bad. And who would want to join that?”
I've been consistently way-impressed with and inspired by Cardinal Dolan, and have high hopes for his evangelical efforts!
Sunday, January 8, 2012
About a year ago, I wrote something here about the relationship of formalism and formality in law, and one of the connections I drew had to do with the protective quality of forms and formality -- the necessary protection of ourselves from each other. In getting ready for my constitutional law class, I came across the following toward the conclusion of Tocqueville's Democracy in America, where Tocqueville stresses as characteristic of a respect for forms one's methods or behavioral dispositions as opposed to the outcomes one reaches:
Men living in democratic ages do not readily comprehend the utility of forms: they feel an instinctive contempt for them, I have elsewhere shown for what reasons. Forms excite their contempt and often their hatred; as they commonly aspire to none but easy and present gratifications, they rush onwards to the object of their desires, and the slightest delay exasperates them. This same temper, carried with them into political life, renders them hostile to forms, which perpetually retard or arrest them in some of their projects.
Yet this objection which the men of democracies make to forms is the very thing which renders forms so useful to freedom; for their chief merit is to serve as a barrier between the strong and the weak, the ruler and the people, to retard the one and give the other time to look about him. Forms become more necessary in proportion as the government becomes more active and more powerful, while private persons are becoming more indolent and more feeble. Thus democratic nations naturally stand more in need of forms than other nations, and they naturally respect them less. This deserves most serious attention.
Nothing is more pitiful than the arrogant disdain of most of our contemporaries for questions of form, for the smallest questions of form have acquired in our time an importance which they never had before; many of the greatest interests of mankind depend upon them. I think that if the statesmen of aristocratic ages could sometimes despise forms with impunity and frequently rise above them, the statesmen to whom the government of nations is now confided ought to treat the very least among them with respect and not neglect them without imperious necessity. In aristocracies the observance of forms was superstitious; among us they ought to be kept up with a deliberate and enlightened deference.
Friday, January 6, 2012
My student Phil Steger offered the following response to my question about the impact of civil unions on marriage:
It is possible that an increase of civil unions may actually strengthen the institution of marriage by distinguishing contractual partnerships made for mutual benefit from sacramental unions that bear witness to divine reality and provide a "school of love" (to borrow St. Benedict's term) through which two people can labor toward holiness. People can then make a clear and conscious choice between the two, based on their actual intent and motive for joining their life with another person.
This, to me, is the key distinction between civil unions and marriage. Both civil unions and marriages can provide a stable framework for having and raising children. And both civil unions and marriages can also be childless. The sociological argument for marriage--it's best for children and the social order--is important, but it is not the heart of the meaning and reality of marriage, at least as illuminated by revelation and tradition.
In the Bible, the structure of marriage and its role in creating or contributing to the social order are somewhat fluid. What is consistent in the Bible, as well as the Apostolic and Patristic sources, is marriage a potent sign of God's love and union with his people. It encourages our faith in the biblical promise that we are each created for perfect union in God, by showing us examples of how two people can grow deeply in union with each other, even in our fallen state. It also provides a training ground of self-giving and self-denial for cultivating the practices and dispositions to prepare us for our destiny of union in God. It resembles the Eucharist and the Liturgy in these ways: as living signs of spiritual reality and as "arenas" in which to practice living according to that reality.
There is no question that the potential for children and family are the natural outgrowth of this union. But this potential doesn't become actual in every marriage. The sacramental union, on the other hand, is actually present in every marriage, though its fullness remains a potentiality requiring commitment and effort and grace to develop. Neither the actuality, nor even the potential, for this sacramental union is ever present in civil unions, even though the potential for children and family are.
I question whether our anxious concern for the sociology of marriage is obscuring our faithful witness to its sacramentality, which might do more to undermine marriage then civil unions. I think if we Catholics were to begin there, our encounters with both civil unions, same or opposite sex, and same-sex marriage, would cause us less fear and anxiety over the fate of marriage. It might also equip us with greater discernment about the essential truths of marriage that we want to preserve and protect and how best to do so.
Over the past week or so several of my friends here at the Mirror of Justice have been posting thoughtful presentations regarding some of the hot button issues of the day (such as same-sex marriage) and the Church’s role or lack of it concerning public policies and the formulation of legal norms—be they statutory or constitutional—addressing these policies and laws.
It is clear that within the community of persons who identify themselves as Catholic there is a wide range of opinions about issues such as marriage; sexual orientation and gender identity; autonomy; and the rights and liberties of the individual person. To discuss and debate these issues is a very American thing. Of course robust disputations are not restricted to Americans or to lawyers since they often occur in other political and legal cultures around the world. However, in the United States, they often exercise a prominent role in public life. A number of us here at the Mirror of Justice have defended the right of the Church to participate in these deliberations. After all, she has a distinctive teaching role that often contributes to advancement of positions which many, if not most, people of good will share.
For example, when the Church, through her principal teachers (the bishops), enter discussions about economic reforms that advance the common good, immigration reforms that are designed to improve the legitimate interests of the sovereign state and the migrant person, or the promotion of racial equality, most folks applaud the involvement of the Church. However, when it comes to neuralgic subjects like “reproductive rights” or same-sex marriage, the scenario changes dramatically especially when members of the hierarchy who, in the proper exercise of the ecclesiastical responsibilities, take positions that conflict with some of the other participants in the political and legal debates. Some of these folks insist that the Church, through her bishops, is violating the “separation of church and state.”
But in fact, there is no such constitutional principle. The constitutional principles which do exist regarding religious matters prohibit an establishment of religion and protect the free exercise of religion. The latter includes the right of religious persons and groups, including the Catholic Church, to enter public life and express their views and seek the implementation of their proposals that advance the common good.
It is clear that Michael Bayly (blogger of The Wild Reed—Thoughts and Reflections from a Progressive, Gay, Catholic Perspective), the individual whose position on same-sex marriage conflicts with that of the Twin Cities archdiocese and whom Susan brought to our attention earlier today, has a right to advance his views.
But so does Archbishop Nienstedt.
In addition, the archbishop has a duty to do so which is in part based on his Profession of Faith and his taking the Oath of Fidelity. When a man is called to orders in the Catholic Church, he is obliged to make the profession and offer the oath. Whether every person called to orders in the Catholic Church does this with a sincere, personal commitment is a question I cannot answer. But it is evident that the archbishop has taken his profession and oath earnestly. So do I. This is a fact that others must take stock of as they enter the field of debate on the important issues of the day.
It does seem that in a number of influential circles, the Church and her teachers should not be permitted to engage others in the public square on matters that are of interest to society; however, it would be anathema if the members and representatives of these same circles were forbidden to enter the arguments of the day and express their views.
Should the Church and her perspectives be denied participation in any public debate on the vital issues involving the making and enforcing of law and the development of public policies, this great country, her institutions, and the right to participate in public life will be endangered. Then we as a political and legal society will be another step closer to a totalitarian regime that presents itself to the world as a democracy.
RJA sj
