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.

Monday, August 9, 2010

Public Discourse on two raging controversies

At Public Discourse Matthew Franck has published a penetrating critique of Judge Vaughn Walker's reasoning in the Proposition 8 case:  Here’s a taste:

And now watch carefully, for here [Judge Walker's] fallacious reasoning enters the equation. When “the genders” are no longer “seen as having distinct roles,” it is revealed that at marriage’s “core” there is ample space for same-sex couples too. Since “gender no longer forms an essential part of marriage,” indeed since it never really did, “plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States.” There, you see? There is something eminently conservative about the admission of same-sex couples to the marital bond. What could we have been thinking, denying them this right for all these centuries? Judge Walker seems to have committed the fallacy of composition—taking something true of a part and concluding that it is also true of the whole of which it is a part. If it is true that “gender” no longer matters as it once did in the relation of husband and wife, he reasons, therefore it no longer matters whether the relation is one of husband and wife; it may as well be a relation of husband and husband or of wife and wife, since we now know that marriage is not, at its “core,” a “gendered institution.” But restated in this way, it is quite plain that the judge’s conclusion doesn’t follow from his premises. To say that the status of men and women in marriage is one of equal partners is not to say that men and women are the same, such that it does not matter what sex their partners are. The equalization of status is not the obliteration of difference, as much as Judge Walker would like to pretend it is.

Also at Public Discourse are two important articles on abortion and healthcare reform.  The first is by the editors of Public Discourse (full disclosure:  I'm on the editorial board), responding to an attack launched by the editors of Commonweal.  See hereA taste: 

Our analysis of the billhas been concerned with protecting the unborn and guarding the consciences of those who bravely refuse to participate in their destruction. We have been guided by the conviction that it is our duty as citizens not only to extend healthcare but also to expand the circle of human care. Commonweal is free to flog whatever interests and flay whatever enemies it wishes, but those are distractions from the pressing task at hand.  We’re hardly happy with our assessment of the new health care law’s treatment of abortion. It would indeed be nice if the claims advanced by Commonweal and [Timothy} Jost were true and the position held by {Helen] Alvaré and every major pro-life group was false. But the law speaks for itself. There is nothing we can do except change it. One way to do so would be through the Protect Life Act, which was recently introduced into Congress. Here, surely, is a place where the pro-life movement can stand together. If Commonweal and Jost take protecting life as seriously as they took the imperative to pass the health care bill, they will stop sniping from the sideline and join us in the effort to restore the protections they helped destroy.

Helen Alvare's response to Timothy Jost’s critique is here. A taste:

In his responseto my piece on abortion and health care, Jost claims that pro-lifers have failed to cite relevant judicial decisions. This is a canard. Pro-lifers have cited the pertinent cases chapter and verse—especially in a legal analysiswritten by the United States Conference of Catholic Bishops. It is hard not to think that Jost is being disingenuous when he demands “[the name of a] single [judicial] opinion that has ordered abortion coverage in the face of a federal administrative regulation and an executive order that interprets a federal statute as prohibiting abortion coverage.  All that pro-life groups said—and all that I affirm after looking at the legal back-and-forth—is that between the plain language of the new health care law, its accompanying executive order, the legal precedents relevant to each, Congress’ rejection of proposed fixes, and the political processes leading to the enactment of the PPACA, pro-life citizens and legal experts were right to express grave concern over the final passage of this bill. They had more than reasonable cause to believe that it would move the United States toward a greater acceptance of abortion and the violation of moral conscience.

 

 

Is Judge Walker's ruling wrong or just premature?

I was out of town last week, so I just now had the chance to sit down and read Perry v. Schwarzenegger.  A few initial reactions:  First, what were the proponents' counsel (pro-Prop 8) thinking in only putting on two experts, neither of whom strike me as especially strong under Daubert/Kumho Tire?  To be clear, I think David Blankenhorn is a very thoughtful writer and effective advocate, but that doesn't make him a good choice as a testifying expert witness.  More broadly, if constitutional litigation is a battle of public policy arguments (and I'm not saying it should be), this one was no contest.

Second, Judge Walker's sweeping findings of fact strike me as overconfident in portraying as conclusively settled issues that, at least in my understanding, are still being debated, see, e.g., #55 ("Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex relationships."), #70 ("The gender of a child's parent is not a factor in a child's adjustment."), #71 ("[H]aving both a male and a female parent does not increase the likelihood that a child will be well-adjusted.").  Elsewhere, he frames the finding in a way that begs the question, see, e.g., #34 (adopting definition of marriage that would cover nonsexual relationships), #77 ("Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions."), or is quick to attribute the most harmful of implications to Prop 8, see, e.g., #58 (Prop 8 "places the force of law behind [the stigma] that gays and lesbians are not as good as heterosexuals").

Third, to the extent that Judge Walker's findings are based on the paucity of contrary evidence presented by proponents' attorneys, perhaps this suggests that a courtroom trial is not the ideal setting in which to chart a course for the future of foundational social institutions.  When we're trying a case to see whether defective brakes or driver error caused the car accident in question, plaintiffs and defendants fail or prevail based on the evidence they can put before the court.  Adopting a definition of marriage because it was the only one put forward by a qualified expert seems a bit more dicey.

Fourth, a quick thought experiment: suppose that Judge Walker's ruling was issued forty years from now, and that California at that time is the only state not to have adopted SSM through the political process.  Suppose further that empirical studies support conclusively all of Judge Walker's factual findings about the quality of parenting, the stability of relationships, etc. in comparing same-sex and opposite-sex couples.  In other words, the consequentialist arguments are off the table.  Assuming that Lawrence v. Texas is still good law at that time, would Judge Walker be wrong to rule that Prop 8 is unconstitutional?  If so, why?  What would the legitimate state interest be at that point in prohibiting SSM?

"Welcome" remarks for new law students

One of the things that is fun about my new(ish) administrative position is that my dean lets me do a short "welcome" speech to the incoming first-year students.  So . . . what should I say, about the law, lawyering, Notre Dame, etc.?  Comments are open.

"A Theology of the Suburbs"

This morning, instead of doing what I should have been doing (ed.:  what else is new?  RG:  Shut up.), I came across a new, interesting-looking blog by a Notre Dame graduate student in Theology ("Theopolitical").  Check out, for example, this interesting post on a "theology of the suburbs".  There's lots of other good stuff, too.

Horwitz on work-family balance and trade-offs

MOJ-friend Paul Horwitz has an as-per-usual thoughtful post at Prawfsblawg, "Writing Guilt and Gender", about (among other things) the trade-offs we make between our professional and family obligations.  Here's a bit:

My own view would be to encourage academics to feel an appropriate amount of need to balance professional and personal obligations, and not to convince themselves that the right approach is no guilt at all.  Perhaps we should all be thinking more about our families.  But I would say there is no better reason to feel guilt about writing than about the other aspects of one's job, even though writing inevitably involves stretches of thought and reflection.

Check it out.

Saturday, August 7, 2010

Shutter the parish because the visitor doesn't like it there?

I've received some sprited correspondence concerning my "eye contact" post, as I expected and even hoped I would.  Some of that correspondence wonders why I would post something about liturgy on a Catholic "law blog."  That's easy, and I thought it would have been obvious (especially given its development here at MOJ over the years).  We are not "Catholic" if we are not Eucharistic.  Who we are as a Eucharistic people is not, furthermore, just about (as one corresdpondent called it) "liturgical aesthetics."  Our sense of who we are as lawyers, citizens, servants must be, in part, a function of who we are as Christians, and that depends in part on how we understand ourselves in relationship to the Lord and others in his Mystical Body.  Congregationalism, for example, leads to a different view of the state than does a rich theology of the Mystical Body. 

Which leads to the second point I'd like to address.  A number of correspondents have accused me of being condescending with respect to Fullam's claims.  But let's ask for a moment, if it's possible, how the established Eucharistic community Fullam visited would likely receive her published, disseminated, and fairly widely discussed decision that its church should be deconsecrated and the community itself  thus put into diaspora.  What if they read and pondered her post?  Would they feel respected?  Think about it:  Fullam parachuted in and posthaste declared the community's life not worthy of continuance, then she returned to Berkeley (which, as I say, I love).

Pullam's words were flippant, I would suggest; her respect for the integrity of the worshipping community she visited was, it seems to me, lacking.  One of my great joys in traveling in Europe is the rich diversity of liturgical communities I've been privileged to participate in.  Some of them are more resonant with me than others, to be sure -- but what bearing has that on whether the less resonant communities should be terminated?  I defy someone to show me how, given the reasons she marshaled for its closure, Prof. Fullam respected the community she visited.

When Fullam arrived, there were souls gathered to pray in the Lord's name, indeed to celebrate the Mass -- yet Fullam, the visitor, calls now for the community to be dispersed.  In my humble judgment, Fullam's stance/agenda merits careful consideration, rejection, and, further, the rebuke I tended to deliver.  Turnabout is fair play, and I replied as I did in order to create a sense of how Fullam's victims might feel about her treatment of their lived reality.  Fullam ignores the side she doesn't live.  I pointed out that she is apparently tone deaf to what it is that had in fact gathered the Eucharistic community she was gifted to be able to visit (and then condemn).   

Let this be clear.  My reply to Fullam was only indirectly related to what is condescendingly and dismissively referred to as  "liturgical aesthetics."  She called for the deconsecrating of a church and thus the end of the community's life together in worship.  I meant to show -- as I would again -- the insufficiency (and nature) of the reasons for that judgment by a visitor to that worshipping community.  It was her insistence upon a certain kind of aesthetic that led to her call for closure!  I'm much more tolerant. 

Friday, August 6, 2010

"eye contact"

While I'm at it . . . .  Someone called Lisa Fullam, who (I am informed) teaches at the Jesuit School of Theology in Berkeley (which is real estate I love, Berkeley that is) does quite a number here on (what I suspect was a valid celebration of) the Holy Sacrifice of the Mass.  It begins with her report that, after leaving the big ethicists' conference in Trent, she "ducked into" Mass (though she doesn't use the noun) in another (and unnamed, no doubt to protect the innocent -- surely not the guilty) town.  She then begins by accusing the "presider" of leading the congregation (though that noun is not used) through an "expressionless Eucharistic prayer."  What would count as an adequate "expression?"  Never mind that the Eucharistic prayer was prayed inaudibly by the celebrant until five minutes ago.  Then comes the indictment that said presider never provided "eye contact."  Mirabile (non) visu!  Do Christians go to Mass for eye contact?  I can get that at the grocery store.  Further, she indicts, he "didn't even bother to preach -- that might have revealed engagement."  I am grateful to hope that Assoc. Prof. Fullam would have been docile in the presence of the requested preaching.  Further, at the Sign of Peace, her bill of particulars goes on, this pour presiding soul "didn't deign to greet."  "Offerte vobis pacem", though, isn't an imperative for a round of "greet[ing]."  Perhaps the celebrant was a man of good taste?  Sound theology?  Would Fullam credit these as  reasons from not having a meet-and-greet in mediam Missam?  I doubt it.   Fullam reaches her climax with the indictment that this bumbling fool "dispensed Eucharist mechanically."  One wonders what this apparently dutiful and devoted priest could possibly say in his own defense.   Perhaps he believes he was faithfully following the Novus Ordo.  Perhaps he doesn't think celebrating Mass is a demand to make "eye contact" for those who "duck[] in" or even crawl in for Holy Mass.  "No wonder so few bother to attend," Fullam winds up in her closing argument.  No wonder, indeed -- if you adopt Fullam's theology.  Her last judgment: "might as well deconsecrate the place." 

As a believer in ex opere operato (which, obviously, is only the beginning of what there is to say about liturgy), I remain more hopeful than Fullam appears to be.  Still, I think this bit from Evelyn Waugh, in his piece "Changes in the Church: Questions for the 'Progressives'" (Catholic Herald, 7 August 1964), which -- for the record --  I wouldn't quite wish to embrace in its entirety, is the beginning of a response to Fullam:  "Finally, a word about liturgy.  It is natural to the Germans to make a row.  The torchlit, vociferous assemblies of Hitler Youth expressed a national passion.  It is well that this should be canalized into the life of the Church.  But it is essentially un-English.  We seek no 'Seig Heils'.  We pray in silence.  'Participation' in the Mass does not mean hearing our own voices.  Only He knows who is 'participating' at Mass.  I believe, to compare small things with great, that I 'participate' in a work of art when I study it and love it silently.  No need to shout. . . .  'Diversity' is deemed by the progressives as one of their aims against the stifling Romanita.  May they allow it to English Catholics.  I am now old but I was young when I was received into the Church.  I was not at all attracted by the splendour of her great ceremonies -- which the Protestants could well counterfeit.  Of the extraneous attractions of the Church which most drew me was the spectacle of the priest and his server at low Mass, stumping up to the altar without a glance to discover how many or few he had in his congregation" . . . or even if someone called Fullam had "ducked in."

Pope Benedict has taught and demonstrated that there are many worthy forms of Catholic worship.  We can hope that the Fullams won't succeed in deconsecrating sacred plaes in which worthy worship is said not to take place because it doesn't deliver "eye contact" or other coveted phenomena obtainable elsewhere.



Bonhoeffer on Justification by Faith as the Ground for Community

I'n my experience, the Christian doctrine that justification is by grace alone, not by our works or some other  contribution we make, is a message of great and joyous freedom.  A big reason I'm a Protestant is the heritage of that message.  Ever since New Testament times, people have worried that the message undermines moral behavior, but I think that Paul answered that well in his letters.  But is the emphasis on justification by grace alone individualistic--just "me and Jesus"?  I ask that sometimes as a Protestant who hangs around a lot with Catholics who are always talking about community and "the social nature of the human person."  Well, here's a passage from Dietrich Bonhoeffer's Life Together, which our church house group just read, that eloquently explains how the emphasis on grace alone is precisely the reason why community is so important.  It's beautifully Protestant and, I think, beautifully Catholic, worth an extended quote:

The death and the life of the Christian is not determined by his own resources; rather he finds both only in the Word that comes to him from the outside, in God’s Word to him.  The Reformers expressed it this way: Our righteousness is an ‘alien righteousness’ a righteousness that comes outside of us (extra nos).  They were saying that the Christian is dependent on the Word of God spoken to him.  He is pointed outward, to the Word that comes to him.  The Christian lives wholly by the truth of God’s Word in Jesus Christ.  If someone asks him, Where is your salvation, your righteousness? he can never point to himself.  He points to the Word of God in Jesus Christ, which assures him salvation and righteousness.  He is as alert as possible to this Word.  Because he daily hungers and thirsts for righteousness, he daily desires the redeeming Word.  And it can come only from the outside.  In himself he is destitute and dead.  Help must come from the outside, and it has come and comes daily and anew in the Word of Jesus Christ, bringing redemption, righteousness, innocence and blessedness.

But God has put this Word in the mouth of men in order that it may be communicated to other men. When one person is struck by the Word, he speaks it to others. God has willed that we should seek and find His living Word in the witness of a brother, in the mouth of man. Therefore, the Christian needs another Christian who speaks God’s Word to him. He needs him again and again when he becomes uncertain and discouraged, for by himself he cannot help himself without belying the truth. He needs his brother man as a bearer and proclaimer of the divine word of salvation. He needs his brother solely because of Jesus Christ. The Christ in his own heart is weaker than the Christ in the word of his brother, his own heart is uncertain, his brother’s is sure

And that also clarifies the goal of all Christian community: they meet one another as bringers of the message of salvation.  As such, God permits them to meet together and gives them community.  Their fellowship is founded solely upon Jesus Christ and this ‘alien righteousness.' . . . 

law and bad taste

Someone named Michael Sean Winters says he's not happy with Judge Walker's decision and (more particularly) opinion overturning Proposition 8.  In developing his disagreement, Winters distinguishes Lawrence v. Texas: "I understood why the majority of the Court ruled in Lawrence v. Texas that privacy concerns demanded that they overturn a sodomy law."  It's hard to know where to start, so I'll be brief.  First, was "privacy" the stated right in Lawrence?  Second, are "concerns" sufficient reason to overrule the legislation of a "sovereign" state?  Does Winters really mean that?  I am reminded of what I once heard a young and guileless intern tell a group of us she was leading on a tour of the Supreme Court: "The dissent is where some Justices tell the majority they were in bad taste."  It's not surprising that Winters admits not understanding "Justice Scalia's concern, voiced in his dissent, that the Lawrence ruling would expedite gay marriage."

Once there is a judicially enforceable constitutional right to be free from the impositions of a normative anthropology, little that follows can be surprising.  Winters elides this by transmuting Lawrence into a privacy decision.   

The Gulf Between Academics and the Real World: Are Catholic Academics Any Different?

In her column today, Peggy Noonan warns about this:

I started noticing in the 1980s, the growing gulf between the country's thought leaders, as they're called—the political and media class, the universities—and those living what for lack of a better word we'll call normal lives on the ground in America. The two groups were agitated by different things, concerned about different things, had different focuses, different world views.

But I've never seen the gap wider than it is now. I think it is a chasm.

Noonan's point -- that university professors and others among the cultural elite in the United States are preoccupied with matters that are viewed as politically correct extremism or ivory tower foolishness by others and thus have become disconnected from the world inhabited by our fellow citizens -- is difficult to dispute.

Every time I gather with neighbors or parishioners, or when I simply talk with others while waiting in line at the grocery store or walking around the lake at the local park, I am reminded by just how insular and narrow are academic perspectives on what is important, on moral values, on living a satisfying life, on politics, on economics, or even on hobbies and pursuits.  The gulf between what is conventional wisdom in academic circles and what is valued in most other settings is brought home to me in more direct terms when I travel to places other than college towns or urban centers on the left and right coasts.

A weekend spent with my now-elderly mother and her friends or my in-laws and the extended family across several generations, along with the lively conversations and debates that follow when we get together, serve as a cautionary note to me.  Even someone like me whose more conservative views and traditional religious beliefs depart from the academic norm can find himself shaped and constrained by the politically-correct academic mindset, starting to think that some points are obvious or some positions are indisputable.  But then I realize yet again how most universities have become echo chambers in which like-minded academics, whatever their discipline (and to some extent whatever their political party), confirm one another in their opinions (most of the time).

The question I want to pose to members and readers of the Mirror of Justice is this:  Are Catholic academics any better at reflecting the greater diversity of thought and breadth of perspective found outside of the typical university setting?  Do we pay better attention to the matters that are of greater concern to our fellow citizens, even if they are not the hottest topics in the faculty lounge or the trendy subject of an academic symposium?  Have we, or at least have those Catholic professors who take the Catholic legal and social thought projects seriously, done a better job of remaining connected to the real world?  If the Mirror of Justice is any indication, I think maybe we have, that our very disagreements on-line keep us better grounded.  What do you think?  Comments are open.