Should the transgendered be permitted to marry? Texas is apparently on verge of saying "no." From a Catholic perspective, how should the secular law respond to a transgendered person's desire to marry? The Church's position (I think) is that gender is not susceptible to reassignment through surgical procedures. As such, let's say a person born a man but living as a woman after surgery desires to marry a man. Would the Church deny that marriage (as essentially a same-sex union) but affirm the person's marriage to a woman (which would be, judging by outward appearances, a same-sex union)? How should a Catholic advise the Texas legislature on this issue?
Tuesday, April 26, 2011
What is the Catholic perspective on a transgendered person's right to marry?
Monday, April 25, 2011
Can lawyers be blamed for the cases they accept?
Today superstar appellate lawyer Paul Clement resigned from King & Spalding after the firm withdrew as counsel representing the U.S. House of Representatives in defending the Defense of Marriage Act. I assume that the firm feared financial blowback from taking on a case like this, much as Ropes & Gray feared being hurt on the hiring front for its decision to help Catholic Charities find a way around the Massachusetts law forbidding discrimination against same-sex couples as adoptive parents. Though I would defend both of these representations, I reject the suggestion that lawyers are somehow beyond moral reproach for the cases and causes to which they devote themselves. There is a moral dimension to accepting a representation. Justifying the representation does not mean that the case or client itself has to be morally justified; there is a moral case to be made for the profession's long tradition of defending unpopular causes. We are, and should be, morally accountable for how we spend (and don't spend) our time -- there is nothing wrong with calling lawyers out for their decisions in that regard. (I think it's a different story entirely when a government official calls lawyers out.) The best response to such criticisms is not to pretend that morality has nothing to do with it, thereby feeding into the lawyer-as-amoral-technician paradigm, but to offer a moral defense of the decision.
Garnett op-ed on the ministerial-exception case
Here is my take, on the Hosannah-Tabor case, in today's USA Today:
[I]t is well established that a “ministerial exception” to job-discrimination laws prevents secular courts from jumping into religious disputes that they lack the authority to address or the competence to solve. The question in the Hosanna-Tabor case is not so much whether the exception exists — it does, and it should — as how it should be understood and applied.
As the court of appeals recognized, this exception is “rooted in the First Amendment’s guarantees of religious freedom.” Indeed, a religious-liberty promise that allowed governments to second-guess religious communities’ decisions about what should be their teachings or who should be their teachers would be a hollow one.
To be clear, the ministerial exception is constitutionally required and valuable, but it does not rest on assumption that religious institutions and employers never behave badly. Certainly, they do. Its premise is not that churches are somehow “above the law.” They are not, and should not be. Its point is not “discrimination is fine, if churches do it.” It is, instead, that there are some questions secular courts should not claim the power to answer, some wrongs that a constitutional commitment to church-state separation puts beyond the law’s corrective reach, and some relationships — such as the one between a religious congregation and the ministers to whom it entrusts not only the “secular” education but also the religious formation of its members — that government should not presume to supervise too closely.
To be sure, not every employee of a religious institution is a “ministerial employee,” and religious institutions — like all employers — have many legal obligations to their employees. Although there are difficult questions to be asked, and many fine lines to be drawn, when it comes to interpreting and applying the First Amendment’s religious-freedom guarantees, it cannot be the role of secular government to second-guess the decisions of religious communities and institutions about who should be their ministers, leaders and teachers, any more than they should review their decisions about the content of religious doctrines.
Last October, many enjoyed a laugh at the expense of Christine O’Donnell, then a candidate for one of Delaware’s U.S. Senate seats, when she questioned the constitutional pedigree of the “separation of church and state.” Her critics were a bit too quick to poke fun. In fact, “separation of church and state” does not appear in the Constitution. Still, and even though it is often distorted and misused, the idea is a crucial dimension of religious freedom. We wisely distinguish, or “separate,” the institutions and authorities of religion from those of government. We do this, though, not so much by building a “wall,” but by respecting the genuine autonomy of these different spheres. We do this not to confine religious belief and practice but to curb the ambitions and reach of governments. . . .
Sunday, April 24, 2011
Gounod's Sanctus
Just back from Easter services, on this comparatively balmy day here in New York. The choir was particularly excellent -- beside the standard favorites, they also performed the Sanctus of Charles Gounod. Gounod is one of those (for me) hugely underrated composers of stunning Masses (and one of the best renditions of Faust, too).
But I had never heard the Sanctus, from (as I discovered here at home) his Messe Solennelle de Saint Cécile. Here is a recording with the great Jessye Norman in the lead (ours was good, but not this good -- wait for the crescendo and explosion at about the 3:40 mark). Happy Easter.
The worst protest song ever
A couple of years ago, I had the pleasure of sitting in on a jam session with some of the Washington, D.C. area's best conservative folk musicians, including, among others, bluegrass mandolinist Adam Garfinkle (editor of The American Interest), guitarist and singer Lauren Weiner (a very fine writer on the politics of folk music), and banjo player Ron Radosh (the distinguished historian). Just about everyone had either been on the left at one time, or grew up in a strongly left-wing home or culture. (Ron's first banjo teacher was Stalin apologist Pete Seeger.) We played some of the classic protest numbers of the American folk tradition as well as many of the union anthems that I had learned growing up in coal-mining country in West Virginia. At one point, just to see if I could get a good debate going, I asked: "What was the silliest, most mindless protest song of the 1960s?" I expected that this would be one of those questions on which there would be a wide range of opinions. But I turned out to be completely wrong about that. Virtually in unison, they replied "'Universal Soldier' by Buffy Sainte-Marie." (She sings it here: http://www.youtube.com/watch?v=zYEsFQ_gt7c.) It's a song I've always liked, and used to perform, but I really couldn't dissent from the consensus. The lyrics are shot through with moral equivalence ("he's fighting for democracy, he's fighting for the Reds") of the most morally dubious kind.
Of course, it would be wonderful if we could, as the song says, "put an end to war" and disband our armies and navies. But only if military force were never necessary to protect innocent people from being enslaved or slaughtered. War is always horrible; but sometimes the alternatives are even more horrible. (On this point, I disagree with my pacifist friends, though I do not hold their view in contempt or doubt their moral seriousness, integrity, or willingness to suffer in the face of injustice rather than resort to arms.) Let us, on this Easter Sunday and always, pray for peace---what Lincoln described in his Second Inaugural Address as "a just and lasting peace." And let us never rush mindlessly into war. But let us not delude ourselves into supposing that justice never requires resistance to evil doers by military force. Just-war theory, one of the Catholic tradition's most important contributions to moral and political philosophy and the philosophy of law, will likely never lose its relevance, and so should be tended by Catholic intellectuals and others in every generation.
Saturday, April 23, 2011
The greatest protest song ever
This morning I received an e-mail flyer from the leftist magazine The Nation (not sure how I ended up on their list) asking "What's the greatest protest song ever?" Well, since they asked, I replied. Here's my answer:
I think the best protest song ever was Seals & Crofts' "Unborn Child," proclaiming the dignity of the child in the womb and protesting abortion and the abortion culture. Here's a video of Seals & Crofts performing the song at the 1974 California Jam -- one year after Roe v. Wade:
http://www.youtube.com/watch?v=Ys7vNUSCsAs
Of course, one of the great things about "Unborn Child" is the courage it exemplifies on the part of the performing artists, who knew that they were flying in the face of what was then hardening into liberal orthodoxy. Many on the left seem to imagine that the protest genre is only pertinent to claims of injustice that bear the imprimatur of left-liberalism. Jim Seals and Dash Crofts were willing to confront the left with the truth about a profound injustice that---with notable exceptions, including Nat Hentoff and (at the time) Jesse Jackson---it was itself sponsoring and providing ideological cover for. Very often, the importance and success of a protest song consists in its bringing into focus a victim of injustice whom those responsible for the injustice have succeeded in shuffling out of view. (Consider, for example, the miner in Billy Ed Wheeler's classic "Coal Tatoo.") That is precisely what Seals and Crofts accomplished in "Unborn Child." The song became a galvanizing anthem of the pro-life movement and helped to sustain it through the difficult early period of its life. Today more Americans idenitfy themselves as pro-life than pro-choice---a development that few would have predicted back in the early 1970s. Many in those days confidently believed that abortion would be broadly accepted and integrated into American life, as it has been in so many European nations and in Japan and elsewhere. "Unborn Child" helped to sustain a grassroots resistance movement in the U.S. that, far from fading, has only become stronger over the years.
Friday, April 22, 2011
Passion Poems by George Herbert
I recently read that Herbert, the great 17th-century Anglican poet and clergyman, was a man of social commitment as well as penetrating spiritual insight. He was briefly a member of Parliament before leaving his seat in 1624 to become a rector in small country parishes. Scholars suggest that he had entered public service, with a vision of the "Christian commonwealth" in mind, to try to support efforts to preserve peace with Spain. But he resigned in disillusionment when the pro-war faction succeeded in dissolving the treaty.
"The Passion"
Since blood is fittest, Lord, to write
Thy sorrows in, and bloody fight;
My heart hath store; write there, where in
One box doth lie both ink and sin:
That when sin spies so many foes,
Thy whips, thy nails, thy wounds, thy woes,
All come to lodge there, sin may say,
No room for me, and fly away.
Sin being gone, oh fill the place,
And keep possession with thy grace;
Lest sin take courage and return,
And all the writings blot or burn.
"Redemption"
Having been tenant long to a rich Lord,
Not thriving, I resolved to be bold,
And make a suit unto him, to afford
A new small-rented lease, and cancell th' old.
Not thriving, I resolved to be bold,
And make a suit unto him, to afford
A new small-rented lease, and cancell th' old.
In heaven at his manour I him sought:
They told me there, that he was lately gone
About some land, which he had dearly bought
Long since on earth, to take possession.
I straight return'd, and knowing his great birth,
Sought him accordingly in great resorts;
In cities, theatres, gardens, parks, and courts:
At length I heard a ragged noise and mirth
Of thieves and murderers: there I him espied,
Who straight, Your suit is granted, said, and died.
A Triduum Reflection on Social Justice
Back in March I posted a few thoughts on legal education and Catholic legal theory by raising some questions about the elusive meaning of “social justice.” During and since that time, I have been working on a paper—actually a series of papers—on this frequently appearing phrase that liberally punctuates many documents addressing Catholic social thought.
The term first appears in the papal literature in 1931 in Pius XI’s encyclical letter Quadragesimo Anno which commemorates the fortieth anniversary of Leo XIII’s Rerum Novarum. In the 1931 encyclical, Pius XI employs the term at least nine times, but he does not define it. It might be assumed that, given the context and content of QA, its meaning is restricted to something dealing with reform of the socio-economic conditions of the laboring class. However, that interpretation or reading, in my estimation, would be incorrect.
For social justice to mean something, especially in the contexts of Catholic social thought and legal theory that bears the same modifier, it must be understood in terms that extend beyond ideas concerning warfare or tensions between or among economic classifications of persons. In fact, Pius XI provides vital insight into the meaning of the term six years later in his 1937 encyclical Divini Redemptoris (On Atheistic Communism). In essence, the key to understanding social justice in a Catholic sense is to understand that it is not really about economic, social, or political institutions; rather, it is about the human person himself or herself. It is, when all is said and done, a concept dealing with the reform and proper formation of the human person as it deals with the appropriation and cultivation of virtue in the life of the individual human person. In short, there cannot be a Christian sense of social justice without there first being a transformation of the human person. As Pius XI states,
just as in the living organism it is impossible to provide for the good of the whole unless each single part and each individual member is given what it needs for the exercise of its proper functions, so it is impossible to care for the social organism and the good of society as a unit unless each single part and each individual member—that is to say, each individual man in the dignity of his human personality—is supplied with all that is necessary for the exercise of his social functions. If social justice be satisfied, the result will be an intense activity in economic life as a whole, pursued in tranquility and order. This activity will be proof of the health of the social body, just as the health of the human body is recognized in the undisturbed regularity and perfect efficiency of the whole organism. [DR, N. 51]
Thus, what is necessary for this “organism” to function properly—for society to achieve the common good—is if each member cultivates in one’s personal life the virtues of: wisdom, courage, prudence, temperance, justice, faith, hope, and love. Without these virtues, each individual’s public acts can become governed by an autonomous will that is often the source of the tension and warfare between and among peoples.
My work on this topic continues, but it is my hope here that this small thought might be a source of encouragement for others to think and pray over this term that is often encountered but not often understood well.
In the meantime, a blessed Triduum and happy Easter to my colleagues and friends here at the Mirror of Justice and to our readers around the world.
RJA sj
"The credit crisis and the moral responsibility of professionals in finance"
This looks like an interesting paper by two Dutch philosophers from Tilberg University, Johan J. Graafland and Bert W. van de Ven:
Starting from MacIntyre's virtue ethics, we investigate several codes of conduct of banks to identify the type of virtues that are needed to realize their mission. Based on this analysis, we define three core virtues: honesty, due care and accuracy. We compare and contrast these codes of conduct with the actual behavior of banks that led to the credit crisis and find that in some cases banks did not behave according to the moral standards they set themselves. However, notwithstanding these moral deficiencies, banks and the professionals working in them cannot be fully blamed for what they did, because the institutional context of the free market economy in which they operated left little room for them to live up to the core values lying at the basis of the codes of conduct. Given the neo-liberal free market system, innovative and risky strategies to enhance profits are considered desirable for the sake of shareholder's interests. A return to the core virtues in the financial sector will therefore only succeed if a renewed sense of responsibility in the sector is supported by institutional changes that allow banks to put their mission into practice.
Thursday, April 21, 2011
A Meditation from St. Anselm
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