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.

Tuesday, November 22, 2011

"At peace with religious freedom"?

By Rick Garnett

Doug Kmiec writes, in NCR, that "Obama cannot be at war with Catholics if he is at peace with religious freedom."  It suppose that's right; that is, if the President correctly understands the content, foundations, and implications of religious freedom, he is not likely to be "at war with Catholics."  But, I am afraid I do not see the evidence that he does, and I do worry about the evidence -- for example, the government's brief in the Hosanna-Tabor case -- that he (or, at least, his Administration) does not.  Kmiec believes, I understand, that the President is a man of admirably deep religious faith.  But, this does not mean that he actually understands and embraces the constraints that a meaningful commitment to religious freedom places on government policy and power.

In the middle section of the piece, I read Kmiec as suggesting that it does not necessarily violate religious freedom for the public authority to allow people to make wrong choices.  ("To think that an authorizing statute or executive decision violates principles of religious liberty or free exercise merely because it allows a choice contrary to faith is to misunderstand the nature of democracy and individual freedom.").  This is generally true (though it could well be unjust to allow people to make some wrong choices, e.g., the choice to cause the death of a vulnerable person).  But, no one -- certainly not those who are opposing the HHS contraception-coverage mandate -- is suggesting otherwise.

At least one of the commenters on Kmiec's piece reads Kmiec as pushing back against the view of the Catholic bishops (including Archbishop Dolan, whom Kmiec cites on the question of the concerns of the middle class) that religious freedom is under attack, and by the present Administration, and against the decision to emphasize this matter by (among other things) creating a new Ad Hoc Committee on Religious Liberty (which I serve as a consultant).  But, Kmiec himself acknowledges that the religious-employer exemption in the proposed interim rule (regarding the contraceptive-coverage mandate) is too narrow and intrusive, and so I have to hope that, notwithstanding his continued enthusiasm for the President himself, he understands that the President's administration has not (so far) been one that understands well or is appropriately protective of religious freedom (which includes, as Kmiec and I agree, more than the freedom of individuals to believe). 

"They have this conscience thing"

By Rick Garnett

Rep. Nancy Pelosi, chatting with the Post's "Lifestyle" section, on Catholics and abortion:

Catholic health-care providers in particular have long said they’d have to go out of business without the conscience protections that Pelosi says amount to letting hospitals “say to a woman, ‘I’m sorry you could die’ if you don’t get an abortion.” Those who dispute that characterization “may not like the language,’’ she said, “but the truth is what I said. I’m a devout Catholic and I honor my faith and love it . . . but they have this conscience thing’’ that she insists put women at physical risk, although Catholic providers strongly disagree.

 

Monday, November 21, 2011

Democrats urge Pres. Obama not to expand religious-employer exemption

By Rick Garnett

As MOJ readers know, Pres. John Jenkins (Notre Dame) and many others -- on "both sides" of the political spectrum -- have urged President Obama to re-think the very stingy exemption that exists for "religious employers" from the contraception-coverage mandate (which -- denials in some quarters notwithstanding -- will also include some abortion-inducing drugs) in the new health-insurance law.  On Sunday, the New York Times reported that many Democrats are urging the President not to agree to a "change that would grant a broad exemption to health plans sponsored by employers who object to such coverage for moral and religious reasons."

In my view, both the mandate and the narrow religious-employer exemption are objectionable.  I was struck, though, by this, in the NYT piece:

Senator Jeanne Shaheen, Democrat of New Hampshire, said: “It just doesn’t make sense to take this benefit away from millions of women. Americans of all religious faiths overwhelmingly support broad access to birth control.”

Sen. Shaheen thinks that it is relevant, apparently, to the question whether it "make[s] sense" to refrain from requiring objecting religious institutions to pay for abortion-causing drugs that "Americans of all religious faiths overwhelmingly support broad access to birth control."  Indeed, it appears that they do.  But, what work in the argument is "of all religious faiths" doing?

UPDATE:  Michael Sean Winters (who is, in my view, clear-eyed about the importance and foundations of religious liberty but mistaken in thinking that Pres. Obama is, too) notes: 

[T]here is something more than a little ironic about these liberal champions, the type of people who normally celebrate the “wall of separation” between Church and State, now clamoring over that wall as fast as they can to tell Notre Dame and Providence Hospital what they can and cannot do. Ironic, too, that liberalism which was founded on the principle of conscience rights, and at a time when the Catholic Church was unalert or hostile to the idea of conscience rights, has grown so indifferent to them while it is the Catholic Church today that champions them. But, irony is the coldest of comforts.

The Supreme Court and the Field of Religious Studies

By Marc DeGirolami

This is an essay by journalist Nathan Schneider with some interesting observations, but also some parts that I think are mistaken.  The point of the piece is to explain why religious studies is an important and useful field for the problems of our day.  The strangest and most anachronistic argument in it is that religious studies came into its own as an academic discipline pretty much as of 1963 with the US Supreme Court's decision in Abington v. Schempp. 

Continue reading

Friday, November 18, 2011

Usury Revisited

By Marc DeGirolami

A while back I had some thoughts about usury as existing in a somewhat unique position from a historical point of view.  Professor Bainbridge had a nice response to my post.  And this is a more recent and also very thoughtful post by John Schwenkler, discussing a piece by Elizabeth Anscombe, Faith in a Hard Ground, in which she comes down very strongly opposed, that I did not know.

Matthew Rose on Karl Barth on Secular Politics

By Michael Moreland

Following on the discussion below about the limits of the state, my friend and Villanova colleague Matthew Rose writes the following in his splendid book Ethics with Barth: God, Metaphysics, and Morals (Ashgate, 2010), which provides a Catholic reading of the great twentieth century Swiss theologian Karl Barth and here makes a powerful case for the place of secular politics in an adequate political theology:

[O]ne might suggest there is an implicit deference paid to the kingship of Christ wherever a politics views itself critically and at a distance. The state announces its penultimacy, in Bonhoeffer’s useful term, when it boasts of no ambition to achieve absolute consensus or perfect harmony among citizens. By putting itself on endless trial, by conceding it must be limited in its claims and open-ended in its decisions, by seeking peace over perfection, and by refusing to be a site of ultimate loyalty, a secular politics affirms its own servanthood and bears implicit witness to God.

For Barth, then, it is precisely in and through its secularity—its incapacity to take responsibility for word and sacrament; its inability to define a full account of human flourishing; its repudiation of any salvific powers—that a politics discloses “not I, but one greater than I.” It is precisely in the recognition of its own impermanence and imperfect justice that the political discloses itself as a way station in a journey toward the end of human history. A secular state that respectfully shrinks from questions of theological truth does not therefore indicate theological insouciance or, worse yet, dissemble its own thinly-veiled totalitarianism. In its confession that it cannot bestow ultimate meaning or provide final consolation, secular politics instead (tacitly) acknowledges that there can be no easy correlation between the broken middle of the saeculum and the new Jerusalem. On Barth’s view, the secular state indicates (if unwittingly) that after Christ there is no other all-decisive political event for which the world must await with fear or an optative sigh. It discloses (if unknowingly) that no government can be seen as God’s chosen instrument for the salvation of humankind or as indispensable for the unfolding of his providential plan. Secular politics pay silent homage to God by its professed incapacity to embody the promise of the kingdom proclaimed and inaugurated in Christ. Human governments, an influential political theologian [Oliver O'Donovan] recently wrote, are instead “marked for displacement for when the rule of God in Christ is finally disclosed. They are Christ’s conquered enemies; yet they have an indirect testimony to give. . . . Like the surface of a planet pocked with craters by the bombardment it receives from space, the governments of the passing age show the impact of Christ’s dawning glory" (pp. 166-67).

Holiday Music

By Marc DeGirolami

My colleague, Mark Movsesian, has an amusing post about a concert planned for the "holiday season."  Careful and excellent scholars like Daniel Dreisbach, Vincent Phillip Muñoz, and Donald Drakeman have persuaded me that, in addition to his other discretions, Jefferson was rather cagey and nuanced about the quality of his beliefs in the separation of church and state.  At the very least, I don't recall any of his writing on this score involving the righteousness of marital infidelity, so the binding theme of the concert is not clear to me.  I suppose those who attend should not expect to hear any masses, and few oratorios, chorales, and cantatas as well.

Thursday, November 17, 2011

"Keeping Faith"

By Robert George

I'm conducting a series of interviews with Princeton faculty colleagues representing different traditions of religious faith for our campus newspaper The Daily Princetonian. The series is entitled "Keeping Faith." The first two (of six) interviews have now been published.

Here is a link to the interview with my Muslim colleague Amaney Jamal, a wonderful scholar of Middle Eastern politics: http://www.dailyprincetonian.com/2011/11/10/29278/.

Here is a link to the interview with Harold James, an eminent economic historian and Catholic convert: http://www.dailyprincetonian.com/2011/11/17/29376/.

Coming up are interviews with religion scholar Martha Himmelfarb (Judaism), physicist Shivaji Sondhi (Hinduism), engineering professor Paul Cuff (LDS), and religious ethics scholar Eric Gregory (Protestant).

The Social Kingship of Christ: Metaphysical, not Political*

By Michael Moreland

I'm not sure if this makes me a neo-con or a classical liberal or something else, but my friend and colleague Patrick Brennan already knows that I do not think that the doctrine of the Kingship of Christ--which we will celebrate this weekend--has the political implications with respect to the competence of the state that Patrick implies it does in his post. What Patrick regards as a "contingently incompetent" constitutional arrangement in our American regime seems to me an essentially sound basis for limiting the jurisidiction of the state with regard to religious doctrine and was affirmed by the teaching of the Second Vatican Council in Dignitatis Humanae that it is "completely in accord with the nature of faith that in matters religious every manner of coercion on the part of men should be excluded" (Para. 10). The state must, of course, foster religious freedom, and the coercive power of the state does extend to public order (including public morality). But (only) the temporal common good is the end of political society, a Catholic via media between the alternatives of secularism and theocracy.

* A play on John Rawls's claim that his theory of "justice as fairness" was "political, not metaphysical."

Snead & Wardle (and Newman) on Stem Cell Research

By Elizabeth Schiltz

Yesterday's Murphy Institute program on "Embryo Rights and Stem Cell Research" with Carter Snead & Lynn Wardle was (not surprisingly, given the speakers) excellent.  We'll be posting the video here soon.  I was particularly intrigued by Lynn's discussion of the contrast between the firm and explicit statements made by LDS religious authorities on abortion, and their failure to make any sort of statement about stem cell research.  His speculation about the reasons for this included an explanation of Mormon beliefs on the importance of the intellectual work that men and women are expected to do in trying to work through a particular topic before their minds are ready to receive God's revelations about that topic.  Lynn suggested a number of other possible explanations, but this one particularly intrigued me -- that there might just still be too much uncertainty about the possibilities and dangers of this sort of research for us to be ready to hear (and correctly understand) what God might be trying to tell us about this topic.

The discussion made me think about the Blessed John Henry Newman's writings about the interplay between faith and reason.  One of my favorites is one of his pre-conversion Oxford Sermons (Number 15), in which he precedes an exploration of the interplay between faith and reason with an introduction asserting the Virgin Mary as its paradigm.  Mary, he argues, is “our pattern of Faith.”  Her fiat, her complete acceptance of the truth of the Angel Gabriel’s message about the child she was being asked to bear, her absolute and total “be it unto me according to thy word,” is the paradigm of faith for all of us.  She received an impression of a divine truth through a revelation more vivid and powerful than most, and she accepted it fully, almost instantaneously. 

However, Newman continues, “Mary’s faith did not end in a mere acquiescence in Divine providences and revelations:  as the text informs us, she ‘pondered them.’” Newman highlights the many instances in which the Scriptures explicitly note that Mary actively reflected on things that others were saying about Jesus and on Jesus’s actions – at the adoration of the shepards at the Nativity, at the finding of Jesus in the Temple arguing with the doctors, and at the wedding at Cana.  In this pondering, this reflection, this application of reason to the truth of Jesus’ divine nature that she had accepted at the Annunciation, Mary is our pattern of Faith both in our reception of divine truths and in our natural response to this reception --- our reflection upon it.  Newman emphasizes:  "She does not think it enough to accept, she dwells upon it;  not enough to possess, she uses it;  not enough to assent, she developes it; not enough to submit the Reason, she reasons upon it;  not indeed reasoning first, and believing afterwards . . . , yet first believing without reasoning, next from love and reverence, reasoning after believing."

       In the area of stem cell research, there seems to be so much pressure to accept the position suggested as one possiblity by Lynn -- we haven't yet figured enough out about the science, so we're not yet in a position to understand what God might be trying to reveal to us.  In contrast, the Catholic position seems to be -- the more we learn from science, the more we come to understand all the ways in which the fundamental position that life begins at conception is proven to be true, again and again -- Carter's talk was a wonderful articulation of that position. 

    This morning I heard this story on MPR:  "Scientists and security specialists are in the midst of a fierce debate over recent experiments on a strain of bird flu virus that made it more contagious. The big question: Should the results be made public?  Critics say doing so could potentially reveal how to make powerful new bioweapons."  It struck me as a fascinating example of a situation where the "scientific imperative" to always forge ahead with any sort of scientific research, regardless of the dangers or collateral cost -- was being seriously questioned, even by members of the scientific establishment.  The possibility of millions of  -- already born -- humans being killed by rogue viruses is seen as a serious threat.  Too bad the reality of millions of -- not yet born -- humans being killed in the pursuit of the elusive rewards of embryonic stem cell research isn't being taken as seriously.




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