Monday, September 10, 2018
Kevin Walsh and I have this year's Supreme Court roundup at First Things: Kennedy's Last Term. In the piece we cover some of the major decisions of the last term, including First Amendment cases (Masterpiece, NIFLA, Janus), cases concerning what we call "the influence of social, technological, and moral change on Supreme Court doctrine" (Wayfair, Carpenter, Murphy v. NCAA), and political gerrymandering/judicial limits cases (Gill, Benisek), as well as a short comment on Trump v. Hawaii.
Something from the conclusion:
What, then, should we expect from the post-Kennedy Court? Perhaps more of the same. There was not a single 5–4 decision this term in which Justice Kennedy joined with the more liberal wing of the Court. That has never before happened on the Roberts Court. And there were fourteen 5–4 cases in which Kennedy joined with the four more conservative justices to form a majority, including First Amendment cases such as Janus and NIFLA, separation of powers cases like Trump v.Hawaii, political process cases involving political and racial gerrymandering, and a range of statutory interpretation and business cases. This record suggests that, should Judge Brett Kavanaugh be confirmed, we ought to expect a fair amount of continuity rather than radical change.
But in other major areas—areas that happen not to have been addressed this term—the change may be more substantial. Consider, for example, the constitutional law of abortion. Here, Kennedy’s replacement might make a difference, particularly if there is a possibility that a Justice Kavanaugh might join with four colleagues in ending the regime of constitutional abortion law initiated by Roe v. Wade.
Social conservatives have been disappointed before. The Court’s first major abortion case after Justice Kennedy joined the Court was the 1989 decision Webster v. Reproductive Health Services, where it seemed there might be five votes to overrule Roe. Chief Justice William Rehnquist wrote an opinion for four justices that purported to “modify and narrow” Roe, but Reagan-nominated Justice Sandra Day O’Connor went her own way, introducing the “undue burden” standard that has remained the law until today. Scalia, meanwhile, lamented that this missed opportunity to reverse Roe meant that “the mansion of constitutional abortion law, constructed overnight in Roe, must be disassembled doorjamb by doorjamb, and never entirely brought down, no matter how wrong it may be.” Scalia was farseeing. Four years later, in Planned Parenthood of Southeastern Pennsylvania v. Casey, Kennedy joined with O’Connor and Justice David Souter to preserve what they called “the central holding” of Roe.
We are guardedly optimistic that Kavanaugh’s confirmation will eventually result in the rejection of Roe v. Wade. But nobody should expect a quick or complete demolition of constitutional abortion rights. Caution is in order because of both internal Court dynamics and external pressure on the institution.
The shift on the new Court should be measured not by the distance between Kennedy and Kavanaugh, but between Kennedy and Roberts. On a multi-member Court, the views of the median justice matter most in the close cases implicating the culture wars. And Roberts cares deeply about public perceptions of the Court’s legitimacy. The same concerns that motivate Roberts to embrace minimalism more broadly, as in the cases this term about partisan gerrymandering and sales taxes, will likely mean even greater caution in these hotter and angrier areas of constitutional law.
Neither should we forget that the result of overruling the Roe/Casey regime is no panacea. It would simply lift restrictions on state legislation. But that is hardly always desirable. We can surely expect some, perhaps many, states to follow the lead of Massachusetts, where legislators passed a NASTY (Negating Archaic Stereotypes Targeting Young) Women Act that repealed abortion restrictions that might in theory have come back into force if Roe/Casey were overturned. New York’s governor has made extensive abortion rights a rallying cry of his campaign for reelection.
Just as the damage done by Roe/Casey is not exclusively legal, neither will it be undone by legal means alone. The Court and dominant cultural opinion shape each other, and the arrow of influence runs in both directions. However much “the mansion of constitutional abortion law” may be dismantled, the constitutional rot at its foundation is the result of powerful cultural forces. Let us not put our trust in judges any more than princes, not only because they are fallible, but also because judges are meant to judge, not to save us from ourselves.
Over at Distinctly Catholic, Michael Sean Winters links to a funny bit at The Onion and then tosses a bit of off-color snark at MOJ, and a post of mine, regarding my view (expressed zillions of time here) that "it is not the case that the Church's social teachings -- including her teachings on the dignity of work and the rights of workers -- require, or even recommend, support for public-sector unionism (as it exists today, in today's legal and regulatory context)."
Contrary to what Winters says, I have never said that "the church's teaching that workers have a right to organize does not extend to public sector workers because the church never specifically said it so extends." What comes before and after "because" in Winters's sentence is wrong. I think that all workers have a right to "organize" (and, as it happens, the Church has long so taught). I do believe that it is a distortion of the Church's social teachings to think that those teachings "require, or even recommend, support for public-sector unionism (as it exists today, in today's legal and regulatory context)." And, I think this "because" not because public-sector unionism wasn't mentioned in Rerum Novarum, but because public-sector unionism (as it exists today, in today's legal and regulatory context) is, all things considered, contrary to the common good.
Winters ends his little jab with what I suppose is intended to be a funny comparison but it seemed more than a little inappropriate (not to mention inapt) to me. Readers should, of course, decide for themselves.
Thursday, September 6, 2018
Forgiveness is the demand of the Gospel that can be the hardest to meet, at least when forgiveness is undertaken with the seriousness of purpose the Gospel and most of the Christian tradition understand it to require. But what constitutes the act we call "forgiveness?" I attempt to answer this question in a paper I have just posted, Forgiveness No Matter What: Justice and Love among Equals, the abstract of which appears below.
My argument for forgiveness "no matter what" does not imply, let alone entail, that those who forgive as they should should also reconcile with those they forgive. Current events make it timely to be clear on where forgiveness ends and the distinct question of reconciliation can begin. With Pope Francis and a growing chorus of Catholic bishops asking now for forgiveness for the acts and omissions of so very many bishops and priests having to do with the sexual abuse of children, vile and sometimes criminal acts and cover-ups, it bears emphasis that, on my account of forgiveness, forgiveness, although it is to be given no matter what, does not entail reconciliation. A victim who has managed truly to forgive his or her offender may nonetheless have good and sufficient reason to avoid anything like reconciliation with the offender, no matter how contrite or eager for reconciliation the offender may be. Even victims who can bring themselves to forgive bishops who concealed sexual crimes may surely have the best reasons for insisting that the offending bishops be removed, by the Pope, from office and duly punished. Forgiveness is a moral act of love among equals, and as such it is agnostic concerning the strictly prudential judgments that should determine how to interact, if at all, with forgiven offenders.
FORGIVENESS NO MATTER WHAT: JUSTICE AND LOVE AMONG EQUALS
Abstract: This paper argues that, given an understanding of human persons as having good reasons to act for the natural happiness of which they are capable, forgiveness is properly defined as the extension of the due love of self of a person who has been offended to his or her offender, upon realizing that he or she has been offended.
Every account of forgiveness presupposes some moral anthropology, and the teleological account of the human person made explicit here, with the help of the work of Thomas Aquinas and Alasdair MacIntyre, postulates a human function that in turn provides the person who would qualify himself as a rational agent good reasons for choice and action. Those reasons include, when the rational agent has suffered an injustice in the form of an offense, choosing, on the one hand, to hate the injustice per se but, on the other, to love first himself and, by an extension of that love between persons who are by nature equals, his offender. The basic idea, pursued in conversation with a wide range of contemporary accounts of forgiveness, is that the obligation to forgive one’s offenders is unconditional exactly because it follows from the indefeasible good reasons a human person has to love himself or herself, even in the face of offense and any consequent misdirected desire to hate his offender.
Forgiveness “no matter what” does not entail reconciliation with one’s offender; the self-loving forgiver may have good and sufficient reasons that in fact bar reconciliation with his offender, even the repentant and contrite offender. But an offended person never lacks good and sufficient reason to love himself with (here in Aquinas’s terms) amor amicitiae and amor concupiscentiae, nor, upon reaching the correct judgment that he and his offender are moral equals, his offender with those same two forms of love. Forgiveness involves willing the goods for one’s offender that escaped him when he chose to perpetrate the offense.
The analysis stresses the importance to forgiveness of what Harry Frankfurt called “second-order desires” because of the central place of forgiveness in preventing lives from going wrong because of misdirected desires, e.g., the desire to hate one’s enemy. The analysis grapples with the implications of the inequality of persons’ capacities to form second-order desires and, further, to reach the judgment that we are essentially one another’s equals. I also consider the place of grace, the divine gift by which the human person with a natural end is given also a supernatural end, in a complete economy of forgiveness. Finally, the paper suggests why modern nation states lack the important capacity to show offenders anything approximating the loving forgiveness by which those who have suffered injustice are bound back together with those who have done the injustice.
Thanks to the merry band of happy religious-freedom warriors at the Becket Fund! Full story here. (I was honored to co-file an amicus brief with our own Tom Berg and others . . .).
Recent news and events have many religious-freedom defenders reeling and angry (understandably). But the "freedom of the Church" proposal has never rested on a premise or claim that the Church's leaders, ministers, and members do not sometimes do awful things.
Charlie Camosy has a nice interview up at Crux with our own Amy Uelmen, regarding (inter alia) celibacy (As MOJ readers probably know, Amy has taken vows in the Focolare movement), its practice, and its point. Amy's reflections are, as always, thoughtful and inspiring.
More information about this interesting event in Chicago (Oct. 4) is available here.
Monday, September 3, 2018
It never hurts -- and on Labor Day, it makes particular sense -- to re-read Laborem Exercens. Here it is.
Also, just your friendly, regular MOJ Labor Day reminder that, despite what some opportunistic commentators contend, it is not the case that the Church's social teachings -- including her teachings on the dignity of work and the rights of workers -- require, or even recommend, support for public-sector unionism (as it exists today, in today's legal and regulatory context).
Sunday, September 2, 2018
It is not the teaching of the Catholic Church that our faith is in priests or even popes. They have their roles and their authority, but they are imperfect human beings and, in any particular case--or even in many cases--may be corrupt. It is the teaching of the Church that our faith is in Jesus Christ, and Jesus Christ alone.
We go to Mass to hear his Gospel proclaimed. Holy Communion is communion with him. If we are fortunate, we are ministered to by a faithful, even holy, priest. (There are many such men, thank God.) But the priest is Christ's minister. Yes, it is the task and role of the priest to emulate Jesus, to be in persona Christi capitis, to serve Christ by serving us; but it is not the priest (or bishop or pope) who is the subject and object of our faith: it is Jesus Christ--and him alone. It is Christ and him alone who saves. It is him--Son of the living God, sent by the Father to atone for sins and be our redeemer--whom we worship; it is in him, and in no one else, that we place our hope and trust.
Considered in its human dimensions, the Church and its clergy--and laity--sometimes flourish and sometimes descend into corruption. The "institutional church" has had, and will, as long as Jesus tarries, have moments of glory and moments of shame. Like God's original chosen people in the Scriptures, faith will sometimes burn bright and other times fade--and be sustained only by a remnant. When the people and their leaders are faithful, the Church (again like the people of Israel in the Bible) will have glorious achievements, visible to the human eye. When they are unfaithful, when they fall into immorality and go "whoring after" the false gods of the day, the beauty of the Church as a divine institution--the bride of Christ--will be obscured and what will be most visible is ugliness and shame.
And yet, Christ, the faithful bridegroom, will remain with the Church, making reform and renewal possible, and ensuring that the gates of hell, whatever inroads they may make, do not prevail against her.
