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.

Wednesday, June 4, 2008

Coontz and marriage

Michael linked, the other day, to Stephanie Coontz's post, at the Immanent Frame, on marriage.  Here, for what it's worth, is an earlier piece by Coontz, called "Taking Marriage Private."  Here are Fr. Araujo's thoughts in response, and here are some of mine.  It continues to be my view that Coontz's observations about changing practices and rules relating to dowry, inheritance, and the like do little to change the fact that the Church's understanding of marriage is, for us in the West, the "traditional" one.  After all, that an understanding is "traditional" does not mean that it has been, in every respect, static and unchanging.

The Role of Law in Holding Back the Poor

The UNDP's Commission on Legal Empowerment of the Poor has just released a report, Making the Law Work for Everyone, which addresses how and why wealth and other inequalities persist within societies.  The executive summary contains this conclusion:

"[I]t is not the absence of assets or the lack of work that hold [the poor] back, but the fact that the assets and work are insecure, unprotected, and far less productive that they might be....In too many countries, the laws, institutions, and policies governing economic, social and political affairs deny a large part of the society the chance to participate on equal terms. The rules of the game are unfair."

The report can be accessed here.  The co-chairs of the Commission also discuss the findings here.

Tuesday, June 3, 2008

Civility?

Michael P. posted today on the Catholic Civility organization.  I did not sign their statement, “A Catholic Call to Observe Civility in Political Debate,” which was issued last fall.  I also did not sign “A Catholic Response to the “Call for Civility,” which followed.  I’m all for civility in politics and every other arena of life, but one reason I did not sign the “Call for Civility” is its ambiguity, or at least my perception of ambiguity.  Among other items, the Call for Civility includes the following: 

1.      As Catholics we should not enlist the Church’s moral endorsement for our political preferences.

2.      Bishops, and all involved in the leadership of The Church, should not permit The Church to be used, or appear to be used, as a partisan, political tool.

3.      As Catholics we must learn to disagree respectfully and without judgment to avoid rudeness in expressing our opinions to those whom we suspect will disagree with us, or in reacting to others’ expressions of opinion.

4.      As Catholics we should never lose faith in the power of reason – a unique gift from God to mankind – and we should always keep ourselves open to a reasoned argument. In this spirit we should defend our views and positions with conviction and patience, but without being obnoxious or bullying.

As to the first item, what does “moral endorsement for our political preferences” mean?  Does one violate the Call for Civility, for instance, if one argues that in Catholic teaching abortion is different in kind from issues such as elimination of poverty or even the death penalty?  It seems to me that this perfectly civil and reasonable type of argument could be seen as violating the pledge by enlisting the Church’s moral authority for one’s political preferences.

As to the second item, what does it mean for the Church to “appear to be used as a partisan political tool?”  Did Archbishop Chaput violate the Call when he said that those who support pro-choice candidates "need a compelling proportionate reason to justify it.”  If so, the Call, IMHO, is much too broad.

As to the third item, what does it mean to disagree “without judgment”?  All disagreements surely involve judgments.  That is, after all, what gives rise to the disagreement in the first place.  If, as would be a fair assumption, the “without judgment” calls for the partisan to refrain from personal attack or judgment of motives, then I am on board although the statement could be clarified to make the point more clearly.

As to the fourth item, what does “without being obnoxious or bullying mean”?  Calling someone a name – like “Rambo Catholic” or “baby killer” - seems obnoxious and uncivil to me.  These sorts of name calling don’t advance the debate and display a lack of respect for the other. But, I know several nice people who think it uncivil, rude, impolite, and obnoxious to speak of abortion as homicide, murder, or even the killing of an innocent human being.  Some of these folks take umbrage at the term “pro-abortion” while insisting on using the term “anti-abortion” instead of “pro-life.”

Before I sign off on “a Call for Civility,” I would want to know a lot more about the nature of the “incivility” that gave rise to the Call and more clarity as to what is meant by “civility.” 

Agree or disagree?  If you disagree, please do so civilly.  Thank you.

Paul Baumann, Editor of Commonweal

Do yourself a favor:  Sit back, relax, and read Paul Baumann's wonderful article, here, in this weeks' Commonweal:

Among the Catholic Commentariat

My Seven Hours of Fame

Kmiec, Obama, and Communion

[This is from dotCommonweal.]

Kmiec says more

E.J. Dionne has a column on Douglas Kmiec’s recent five minutes of fame for endorsing Obama and being refused Communion.

Dionne: “In an interview over the weekend, Kmiec argued that 35 years after Roe, opponents of abortion need to contemplate whether “a legal prohibition” of abortion “is the only way to promote a culture of life.”

“To think you have done a generous thing for your neighbor or that you have built up a culture of life just because you voted for a candidate who says in his brochure that he wants to overturn Roe v. Wade is far too thin an understanding of the Catholic faith,” he said. Kmiec, a critic of the Bush administration’s Iraq policy, added that Catholics should heed “the broad social teaching of the church,” including its views on war.

“Kmiec shared with me the name of the priest who denied him Communion and a letter of apology from the organizers of the event, but he requested that I not name the priest to protect the cleric from public attack.”

Whole thing here:

http://www.washingtonpost.com/wp-dyn/content/article/2008/06/02/AR2008060202591.html

[To see the comments on this posting, click here.]

Catholic Civility

Dear Friends:
 
We are proud to announce the launch of our website, CatholicCivility.org (www.catholiccivility.org). As you know, putting civility back into the current debate about religion and public life is an issue that we feel strongly about. Please visit the website and tell your colleagues and friends about our commitment to a more civil tone to replace the divisive rhetoric and partisan attacks that define our national political debates. There will soon be a section where others can sign onto the statement as well. Again, please help us promote www.catholiccivility.org.
 
Thank you,
 

Amb. Thomas Melady and Timothy May Esq

Thomas P. Melady
Former Ambassador to
Burundi, Uganda, and the Holy See
President Emeritus Sacred Heart University
Professor and Senior Diplomat in Residence
Institute of World Politics
202-462-2101 ext 323
cell 202-297-5603

"Do Churches Matter?"

I have posted on SSRN an essay -- originally presented, thanks to our own Mark Sargent, as the Gianella Lecture at Villanova -- called "Do Churches Matter?  Towards an Institutional Understanding of the Religion Clauses".  Here's the abstract:

In recent years, several prominent scholars have called attention to the importance and role of "First Amendment institutions" and there is a growing body of work informed by an appreciation for what Professor Balkin calls the "infrastructure of free expression." The freedom of expression, he suggests, requires "more than mere absence of government censorship or prohibition to thrive; [it] also require[s] institutions, practices and technological structures that foster and promote [it]." The intuition animating this scholarship, then, is that the freedom of expression is not only enjoyed by and through, but also depends on the existence and flourishing of, certain institutions, newspapers, political parties, interest groups, libraries, expressive associations, universities and so on. These "First Amendment institutions" are free-speech actors, but they also play a structuralý014or, again, an "infrastructural" role in clearing out and protecting the civil-society space within which the freedom of speech can be well exercised. These institutions are not only conduits for expression, they are also "the scaffolding around which civil society is constructed, in which personal freedoms are exercised, in which loyalties are formed and transmitted, and in which individuals flourish.

Similar "infrastructural" claims can and should be proposed with respect to the freedom of religion. Like the freedom of speech, religious freedom has and requires an infrastructure. Like free expression, it is not exercised only by individuals; like free expression, its exercise requires more than an individual with something to say; like free expression, it involves more than protecting a solitary conscience. The freedom of religion is not only lived and experienced through institutions, it is also protected and nourished by them. Accordingly, the theories and doctrines we use to understand, apply and enforce the First Amendment's religious-freedom provisions should reflect and respect this fact. If we want to understand well the content and implications of our constitutional commitment to religious liberty, we need to ask, as Professors Lupu and Tuttle have put it, whether "religious entities occupy a distinctive place in our constitutional order[.]"

Check it out.  Comments welcome!

A Challenge to Engage

wlIn the June 8 issue of Our Sunday Visitor, editor John Norton issues the following challenge:

Here's a challenge -- and it's an important one. Read the following brief letter I received today, and come up with a succinct, convincing answer to it. The writer was referring to our full-page article about the Catholic governor of Kansas, who recently vetoed a bill regulating late-term abortions ("Catholic governor vetoes late-term abortion bill," May 11). Her spokeswoman told us that Sebelius was personally opposed to abortion, but was committed to "uphold[ing] current Kansas law."

Here's the letter I received, from a reader in Wichita, Kan.:

"I have no difficulty with our governor espousing her constituency's views publicly, while maintaining differing views privately. Politicians should not be expected to evaluate all proposed legislation according to their personal convictions.

"What if our governor were Islamic instead of Catholic?" the writer asks.

***

So where do we draw the line? How comfortable can Catholic politicians or the rest of us be with our beliefs informing not only our personal, private lives but also our other daily interactions?

***

Let me know how you see the answer, by writing, or emailing [email protected]. (And let me know if you're willing to let me publish your answer.) I look forward to hearing from you.

The question of the public nature of our faith seems a fitting one – one that we have addressed in various ways over the years on MOJ – for those interested in the development of Catholic Legal Theory.  In fact, if we don’t have answers to this question, can there be such a thing as Catholic Legal Theory?  If you feel so inclined, please email John Norton your answers.  Also, feel free to email them to me for posting on MOJ.

Garnett's judgment in O'Neill v. George

Affirmed.

I wasn't at Princeton for the event, but I did, just the other day, read Aidan O'Neill's paper "Judging Catholics: Natural Law, The Catholic Church, and the Supreme Court."  First, there's the issue, mentioned by Rick, of the tendentious characterizations, such as  "conformist" vs. "non-conformist."  Predictably, they do the following sort of work that, well, speaks for itself:  "It might be thought that the Second Vatican Council marked the ascendancy of the non-conformist tendency within the Church in the 20th century bu the long Papacy of John Paul II and the election of Benedict XVI as Pope might seem to mark a renewed ascendancy of conformist Catholicism"  (47, n.1).   

But there's also the issue, likewise mentioned by Rick, that the argument is wrongheaded and, at times, ill-informed.  O'Neill's got a lot going on in the paper (divorce, gay marriage, and contraception come up frequently), but the thesis seems to be that judges in our constitutional democracy would violate their judicial oath by doing what the "conformist" tradition is said to demand of them, to wit, to use the judicial office to advance the Church's "agenda" (40).  According to O'Neill, "for a judge to decide not to apply or to re-interpret a law in a manner which is determined not by the intra-systemic rules and principles governing legal interpretation, but by extraneous considerations -- such as his own or his Church's moral values -- would a usurpation of his or her office" (34).  "The duty of public office holders is to uphold the Constitution under which they hold office, not to undermine that office by seeking to further the agenda of another body or to promote values which are not compatible with the civil society in which they hold office" (39-40).

Where to begin?  What I take to be the Church's actual understanding of what a faithful Catholic judge should do, if he or she is to be faithful, is altogether missing from O'Neill's account.  For an accurate statement of the Thomistic position which inspire and shape the contemporary statements of the magisterium (whether "conformist" or "non-conformist"), one can do no better, for my money, than chapters 3 and 4 of Russ Hittinger's The First Grace (2003), a work that O'Neill appears not to be familiar with. 

On the question of what the judicial office as intended under Article III of our Constitution requires, and what it rules out, in terms of (what we might call, in hope of avoiding a tendentious description) moral judgment, the book to read is H. Jefferson Powell, Constitutional Conscience: The Moral Dimension of Judicial Decision (2008).

In a word, the Church doesn't expect the kind of judicial activism O'Neill describes (at length) and fears, and our Constitution does not rule out -- but indeed requires -- some (but by no means all) of the judicial moral judgment of the sort that O'Neill fears.  The premise that the Church's moral teaching amounts to an attempt to get simpletons to advance her "agenda" in the world is not the beginning of a promising argument or discussion.  But then again, as the reader of O'Neill's paper will see, the author seems to think that people in democratic civil society are, on moral matters, epistemically privileged/better off vis-a-vis the Church (see, e.g., 36).       

Project Adam's Pew

There are some situations in which the involvement of the legal system can only mean that something has gone terribly wrong on the level of fundamental human relations.  A paradigm of such a situation has to be the dispute leading to the Church of St. Joseph in Bertha, MN, obtaining a restraining order against a parish family, barring them from bringing their autistic 13-year-old son to Mass.   We can pray that the mediation scheduled to start this week will resolve this in a way that is consonant with our understanding of the Church as a gathering of the people of God.  (See, e.g., Joseph Cardinal Ratzinger, Called to Communion:  Understanding the Church Today  (Ignatius Press 1996), at 29:  ". . . the Eucharist, seen as the permanent origin and center of the Church, joins all of the 'many', who are now made a people, to the one Lord and to his one and only body.")

The mother who was barred from her church has set up a web-site to encourage people to reserve pews in their local churches for families who might need a positive indication from their churches that they are welcome, even if their loved ones sometimes engage in unconventional behavior.  Her project is called "Project Adam's Pew."  As I have mentioned before, I think the lack of welcome often felt by parents of kids with disabilities with respect to the community life of Catholic parishes is a real problem, and I am glad that this unfortunate episode might at least be raising awareness of the problem.