Many thanks to Rob Vischer for bringing to our attention the recent developments regarding Professor Scott FitzGibbon of Boston College Law School and the “ruckus” over his appearance in a political advertisement concerning the state of Maine marriage referendum. At the outset of this posting I make a disclosure that Scott and I are good friends. Our friendship began thirty-nine years ago. At that time he was a nominal Christian, but in due course he entered the Church several years later. He has a keen intellect, and he searches for truth honestly and objectively.
I believe that Rob and I share the position that Professor FitzGibbon was clearly within his rights as a citizen and as a member of an academic community to express his view and propose to fellow citizens a particular course of action on an important political issue, in this case, same-sex marriage. In last year’s election season, I addressed the rights of individuals to participate in the political process, but I was and remain critical of those who deny to others the right that they insist on for themselves. [HERE] I am troubled by the fact that Professor FitzGibbon is being criticized for stating in the political advertising that he is a professor at Boston College. He did not imply or state that he represented Boston College. Rather, his identification was a statement of fact about what he does for a living and where he is a professor. Both he and I know that there are those members of his university who do not share all of his views on political issues just as he does not necessarily share theirs. In this context, faculty members from universities and colleges have often expressed political views and identify the institution with which they are associated not intending to imply that they speak for their institution. For example, last fall, members of then-Senator Obama’s Catholic Advisory Committee publicly associated themselves with their own home institutions that included Xavier, Harvard, Boston College, Toledo, Notre Dame, Georgetown, and Holy Cross. [HERE]
We all most likely agree that the issue of same-sex marriage is hotly contested subject generating robust engagement. But I think—I hope—that we can agree that it can be discussed and debated in a civil and rational manner. And that is precisely what Professor FitzGibbon has done. When certain views, his views in this case, are hounded from the public square, democracy is in trouble. When good people as citizens cannot enter a political discussion or enter a political campaign because others contend that their position is unwelcomed in the public debate, democracy is in peril.
I have raised on previous postings the thoughts of Christopher Dawson that provided insight into the point I was making. I shall do so again today. In a 1959 essay entitled Civilization in Crisis, Dawson said,
...if Christians cannot assert their right to exist in the sphere of higher education, they will eventually be pushed not only out of modern culture but out of physical existence. That is already the issue in Communist countries, and it will also become the issue in England and America if we do not use our opportunities while we still have them. We are still living internally on the capital of the past and externally on the existence of a vague atmosphere of religious tolerance which has already lost its justification in contemporary secular ideology. It is a precarious situation which cannot be expected to endure indefinitely...
The “ruckus” involving Professor FitzGibbon demonstrates that Dawson saw something happening in 1959. With the passage of fifty years, we have evidence that his prediction seems to be a most accurate one.
RJA sj
I think the question whether teaching that the practice of
terror is a moral obligation is constitutionally protected primarily raises
free speech issues (not freedom of religion issues), and under current law, the
rules dictate that the facts are important. E.g., Yates, Brandenburg, Scales,
Noto. If the method of teaching is not
constitutionally protected under the speech clause, it is not constitutionally
protected under the free exercise clause, and government can subsidize
protected speech while refusing to subsidize unprotected speech without
establishment clause difficulties. Many argue that the free speech regime is
too speech protective in this context, and whether they are right or wrong, it
seems to me that they are focusing on the key issue. It does not matter whether
the speakers are religious or not in this context.
From the "better late than never" file: Keith Pavlischek has this post, over at First Things, asking whether it "violates the First Amendment" to "oppos[e] radical Islam". He writes:
Since the Islamists believe they are permitted, indeed obliged, by their canonical religious texts to use terrorism to advance their agenda, you would think that it would be in the national interest of the United States that “moderate Islam” prevails in this internal struggle. In fact, as just about any expert will tell you, the primary goal of public diplomacy efforts should be to separate the jihadists from the broader non-jihadist Muslim population. To put it crudely, we want one side of this controversy within Islam to win and another to lose.
But that creates a problem because if, as a matter of public policy, we want the moderate (non-Islamist) side to win we would be promoting with public money one religion (moderate Islam) over another (radical Islamism). But if we promote one religion over another we have, according to some of our more brilliant Constitutional scholars, violated the First Amendment’s prohibition on laws respecting the Establishment of religion.
Similar issues and questions have come up in the domestic context. For example, some "Safe Space" training materials, used at Georgia Tech, tried to help gays and lesbians feel more safe and comfortable on campus by -- in Eugene Volokh's words -- "taking stands on quintessentially theological questions -- e.g., the true meaning of the Bible, and the 'legitimacy' of various interpretations of 'Biblical texts.'"
Does the government have any interest in what Justice Brennan called "the development of doctrine"? Or is it, again quoting the Justice, a "matter[] of purely ecclesiastical concern"? As I see it -- for (a lot) more, see this paper -- the answer is tricky. One the one hand, we should not be surprised if and when the government tries to push religious doctrine in ways that are more congenial to the government's understanding of the public good or public interest. We would be kidding ourselves if we thought that a government could ever really be "neutral" with respect to what citizens believe and in what moral traditions they are formed. That this is true, though, does not mean we (who value religious freedom) should not worry about the implications of this fact:
[F]ar from being a "purely ecclesiastical concern," the content of religious doctrine and the trajectory of its development are matters to which even a secular, liberal, and democratic government will almost certainly attend. It is not the case that governments like ours are or can be "neutral" with respect to religion's claims and content. [T]he content, meaning, and implications of religious doctrine are and have long been the subjects of government power and policy. Secular, liberal, democratic governments like ours not only take cognizance of, but also and in many ways seek to assimilate - that is, to transform - religion and religious teaching. And, it is precisely because such governments do have an interest in the content, and, therefore, in the "development," of religious doctrine - an interest that they will, if permitted, quite understandably pursue - that authentic religious freedom is so fragile.
Tuesday, September 22, 2009
A partial denouement, at least.
Read the good news here.