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, October 9, 2006

Vanderbilt Then, Vanderbilt Now

[Interesting story, this.  Of course, it's about much more than Vanderbilt.]

Sightings  10/9/06

Lawson's Return
-- Martin E. Marty

Theo Emery revisited the theme of nonviolence in his story on the return of James Lawson, expelled Vanderbilt student, to the classroom -- this time as a Vanderbilt visiting professor (New York Times, October 4; see References, below).  It's an exceptional story, but it has to compete for attention among the current, often religiously relevant, headlined scandals and controversies.  Here is some attention:

Controversy marked Lawson's youth, and he has never ducked it from 1960, when he came to prominence, down to the present.  His problem: He is and always has been an advocate and embodiment of nonviolence.  His mother taught him the nonviolent way.  Lawson's ability to draw on the Bible, Methodist theology, and Gandhi allowed him to fuse them into his own developing theology, and action pushed him into central roles in the churchly and academic sides of the civil rights movement.  He traveled to India to be closer to Gandhian teaching, and to Vanderbilt Divinity School to be closer to Christian theology with a Methodist stamp.

Unfortunately for his career, he there sat down to eat at the wrong cafeteria tables, sat in the wrong sections of the symphony hall, and sat around in circles of dissenting contemporaries and professors.  All this at a not-then-atypically racist university in a mid-southern city, where the violent had power in church and state, press and university, including the divinity school.  When the chancellor at Vanderbilt expelled him, much of the divinity faculty resigned.  (We at Chicago profited because one among them, Langdon Gilkey, then taught here for decades.)

That was then, now is now.  In the meantime, Vanderbilt desegregated and did some curricular atoning, beginning in the divinity school.  Even the chancellor who booted Lawson repented and apologized as the university found ways to heal old breaches.  Then came a surprise: The current chancellor appointed him to teach on the theme of nonviolence.  He attracts eager students for whom the early civil rights movement seems as remote as the Middle Ages, and at a time when nonviolence rarely gets a hearing.  Lawson bears no grudges, but he remains a lonely voice on the nonviolent religious or, for that matter, any other front.

Vanderbilt does not censor or fetter Lawson, or seem to worry about what his continuing nonviolent stance might "cost" the school.  Emery reports, for instance, that after a talk on the Bible and Gandhi, Lawson responded to a student's question about nonviolence in a violent age.  You will not understand Lawson and his movements unless I report that as he talked about the "international arms trade and how difficult it was to disarm a society armed to the teeth," he did some dangerous comparing.  (Any of our readers who are disturbed by any quotation that might suggest equivalences between "Us" and "Them," please hold your fire.  Nonviolence does provoke violent reaction, still.)

Lawson's answer: "I don't happen to think that Islam is the most violent religion.  I think Christianity is.  As a Christian, I think we need to think about ourselves first, and clean up our own act."  There are obviously other things to be said on that subject, but this one comment at least should be entered into the record as we debate arms policies and both international and domestic affairs: "We need to think about ourselves first," and take it from there.

References:
Theo Emery's article "Activist Ousted From Vanderbilt Is Back, as a Teacher" appeared in the October 4 edition of the New York Times and may be found at: http://www.nytimes.com/2006/10/04/education/04lawson.html?_r=1&ref=education&oref=slogin.

Sightings
comes from the Martin Marty Center at the University of Chicago Divinity School.

Sunday, October 8, 2006

Same-Sex Marriage in Ireland?

[Interesting case percolating in Ireland.  HT:  Maggie Gallagher.]


Lesbian couple wed in Canada launch landmark lawsuit seeking marriage rights in Ireland

ASSOCIATED PRESS
October 3, 2006            

DUBLIN, Ireland A lesbian couple who were legally married in Canada launched a landmark lawsuit Tuesday seeking to win the same legal rights and financial benefits as married heterosexuals in Ireland.

Ann Louise Gilligan and Katherine Zappone — who were married in Vancouver, British Columbia, in September 2003 within months of the legalization of same-sex marriage there — are the first gay couple in Ireland to go to court to seek state recognition of a foreign marriage.         

Their action follows a similar case in Britain, where a lesbian couple unsuccessfully sued in July to have their marriage — also attained in Vancouver in 2003 — recognized under British law. Britain, unlike Ireland, already accords marriage-style rights to homosexual couples who register their commitment in legally binding "civil partnerships."

The Irish government argues that it cannot accept the women's argument partly because of Ireland's conservative 1937 constitution, which commits the state "to guard with special care the institution of marriage, on which the family is founded, and to protect it against attack." Homosexuality was illegal in Ireland until 1993.

The lawsuit in the High Court, the second-highest court in Ireland, is expected to last about three weeks and involve about a dozen witnesses testifying on behalf of the women. Whatever the outcome, legal experts expect the losing side to appeal to the Supreme Court, the ultimate arbiter of constitutional law.

A lawyer for the couple, Michael Collins, told High Court Justice Elizabeth Dunne that history was full of examples of governments outlawing relationships based on bigoted attitudes. He cited longtime laws forbidding interracial marriage in the United States that were gradually repealed, beginning in California in 1948.        

Gilligan, a Dublin college lecturer in philosophy, is Irish and a former Catholic nun. Zappone, a member of Ireland's government-appointed Human Rights Commission, is an American from Seattle, Washington. They have been a couple since the mid- 1980s when both were pursuing doctoral degrees at Boston College in the United States. Since moving to Ireland two decades ago they have worked together on a string of research projects dealing with urban poverty and feminist rights.

"We are married, happily married, living in a lifelong monogamous partnership," Zappone said outside the courthouse.

They also own two properties together,— an issue driving their demand to ave their foreign union recognized for tax purposes here.

Their legal battle began in 2004 when they challenged the Irish tax authorities' refusal to recognize the existence of their Canadian marriage. This meant they had to file tax separately, a more expensive option, and were unable to claim their full deductions for their properties.

In the longer term, when one of them dies, the other could face a struggle to exercise inheritance rights and, under current law, would face much higher tax burden than a heterosexual widow or widower.

The case, if successful, would have major implications for Ireland's unmarried couples, both heterosexual and homosexual, in this predominantly Catholic country of 4.2 million. The 2001 census identified 77,600 households involving unmarried partners — among them 1,300 homosexual couples — who must pay higher rates of income and inheritance taxes than married couples.

Denmark in 1989 became the first country to legislate for same-sex partnerships. Several other European Union members have followed suit: Belgium, France, Germany, the Netherlands, Norway, Portugal, Spain and Sweden. While only some specifically recognize such partnerships as marriages, all grant homosexual couples tax, inheritance and child-rearing rights similar to those for married heterosexuals.

In the United States, only the state of Massachusetts allows gay marriage, Vermont and Connecticut permit civil unions, and more than a dozen states grant lesser legal rights to gay couples.

See the article on the web.    

Thursday, October 5, 2006

Near the College of William & Mary?

A message for MOJ-readers who reside in the vicinity of the College of William & Mary (if there are any):  Click here.

Wednesday, October 4, 2006

"A Conversation with Michael Perry"

If my dear Emory Law colleague Hal Berman had not told me just this afternoon, I would not have known that there is a "conversation" with me in the current issue of Theology Today.  A strange feeling, to be sure:  a conversation with me that I knew nothing about.  Must be the Ambien.

In case anyone out there is interested, here's the cite:  George Hunsinger, "Torture, Common Morality, and the Golden Rule:  A Conversation with Michael Perry," Theology Today, Volume 63 (2006):  375-379.  (Hunsinger is the Hazel Thompson McCord Professor of Systematic Theology at Princeton Theological Seminary.)
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Monday, October 2, 2006

Martin Marty on "Naming Evil"

Sightings  10/2/06

Naming Evil
-- Martin E. Marty

Thirty-eight times in a four-page editorial for James Dobson's and Focus on the Family's Citizen magazine, radio talk show host Dennis Prager capitalizes and condemns the "Left," pushing everyone he does not like into a homogenized lump.  His complaint: The capitalized-Left is unable and unwilling to oppose or confront evil in the form of bullies.  Illustration one: The capitalized-Left lump was made up of people who could not bring themselves to call Stalin and the Soviet Union evil.  Illustration two: Ditto for not calling terrorists and the Islamic radical fringe evil.

Mr. Prager gives four choices: "Join the bully fighter; don't join but at least admire the bully fighter; deem oneself inadequate for not joining the bully fighter; or denounce the bully fighter as the aggressor.  The latter is the dominant leftist attitude."  One wishes Focus on the Family would focus on the family instead of giving a platform to someone who voices such cosmic, sweeping, and inclusive generalizations about the Left that he has created.  Mr. Prager does recognize that the capitalized-Left often finds certain things evil -- such as avoidable poverty, perpetrated inequality, etc. -- but they are not the evils of his choice.  Why, according to Mr. Prager in the Citizen, is his capitalized-homogeneous-Left lump unable and unwilling to "label and confront evil"?  Because they are chicken; they stand back for psychological reasons: "fear of confrontation, fear of fighting, fear of dying, loathing of authority figures whether parental or divine."  Even if they weren't chicken, they would not label bullies evil and take them on, for ideological reasons.  Prager shoves them into a Marxist camp with words like "bourgeoisie and proletariat," which dictionaries of usage today would label "obs. rare."

When confronted by charges like Mr. Prager's, I ask the macho self-named bully fighters exactly what suffering or inconvenience they have experienced during the current Iraq war (which is on Prager's mind) -- other than showing "willingness to die" at the hands of airport screeners.  No other dying is evident in the form of a draft, rationing, restraint, or economic setbacks.  Bully fighting comes cheap; that's why it is hard to "join" or "at least admire the bully fighter."

The lowest blow comes when Mr. Prager says the capitalized-Left will not speak of good and evil "because it smacks of traditional Judeo-Christian values," which the Left loathes or redefines.  His Left is all secular.  Many people who hold the positions he loathes and redefines, however, are in "Judeo-Christian" camps.  Suppose the bully fighter would ask why Christians might have trouble naming evil and hating the bully.  Perhaps they have read Matthew 5:38-48 in the Sermon on the Mount, or Romans 12:9 ("hate what is evil") and 14 -- the command "bless, do not curse" the persecuting bullies.  Try Romans 12:9-21 as a lump.

Of course, those who have been to seminary -- I'm among them -- know that Jesus and Paul did not really mean any of this, or that their ethos and commands relate only to intimate, person-to-person relations and not to large social forces or nations.  We have learned to wriggle.  Prager has it wrong.  We as "bully fighters" can "hate what is evil" in Afghanistan, al Qaeda, etc., and defend our nation and values -- and still not demonize or position ourselves as simply "good" over against others' manifest evil doings.  End of sermon.

References:
Dennis Prager's article "Left Behind" appears in the September 2006 issue of Citizen and may be found at: http://www.family.org/cforum/citizenmag/coverstory/a0041657.cfm.
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Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

Robby George on the Question of Judging One Another

[Thanks much to Robby for this, in response to my post.]

Dear Michael:

May I venture some thoughts on the questions you posed about judging positions without judging persons holding the positions?  You ask:

Can we disagree with one another, sometimes fundamentally about important issues (the morality of same-sex unions, e.g., or the prudence of using the criminal law in this society at this time, to deal with the moral tragedy of abortion), without our "judging" one another--judging the position, yes, but not one another? Should we even aspire to do so?

The answers, I think, are "yes" and "yes."  "Yes" we can; and "yes" we should.

On the question whether we should aspire to avoid judging others, we have an express teaching from the highest of all authorities.  Jesus's command that we "judge not" (lest we ourselves be judged) is recorded in St. Matthew's Gospel.  On the question whether it is possible to fulfill the command, it seems to me that Jesus would not give us a command if it is impossible (even with God's grace) to comply with it. Obviously it is challenging command, because our emotions, and not just our rational faculties, are inevitably engaged when we argue and debate--especially when our arguments and debates concern profound issues of right and wrong.  But I suppose that is just the way things are in this vale of tears.  So we must all do out best, and try to support each other--across the lines of division--in doing it.

But things do get dicey when we think about extreme cases.  Let's use the standard example, and consider Hitler.  He advocated, then committed, genocide.  We rightly judge that to be unspeakably wicked.  In doing so, do we not judge Hitler himself to be unspeakably wicked?   I've always found this a bit puzzling.  Surely we cannot avoid judging Hitler to be a genocidal murderer.  That's what he was; there is no way around it.  Surely we would, and should, have supported punishing him for his crimes, had the allied forces captured him at the end of World War II.  But Jesus's command is categorical.  There is no "except in the case of . . . " clause in Matthew 7:1.   There is, then, some meaningful sense in which we are not supposed to judge even Hitler. What could that sense be?

Gaudium et Spes of the Second Vatican Council teaches that "God alone is the judge and searcher of hearts; for that reason he forbids us to make judgments about the internal guilt of anyone."  But, of course, we do make judgments of guilt in the context of the criminal justice system, and plainly the fathers of the Council are not enjoining us against doing so.  As I said, certainly we could legitimately have supported trying and punishing Hitler for genocide, just as we punished his collaborators and henchmen.  So, again, what does "not judging" mean?

Well, one thing it means, I suppose, is that we must recognize that it is not for us to judge the ultimate condition of anyone's soul -- even Hitler's.  That's God's job, and we must not purport to usurp it.  The Church teaches solemnly and authoritatively that no one -- not even the Pope -- can say whether any particular human individual -- even Hitler -- is damned.  As Germain Grisez puts it, commenting on Matthew 7:1 and Gaudium et Spes 28, "perhaps, due to invincible ignorance or lack of freedom, they are not internally guilty; perhaps they are."  At the same time, plainly we sometimes have an obligation to defend what we believe are moral truths, even if in defending them we offend those who believe and act contrary to them.

Of course, Hitler was not a person of goodwill.  The kinds of disputes that prompted your question are disagreements among people of goodwill.  It is a lot easier to avoid judging people when one acknowledges that--however misguided one judges their positions to be--they are people who are sincerely seeking the truth and trying to act in accordance with it.  This in itself provides a certain kind of "common ground" between the interlocutors.  And it generates certain norms of conduct for them.  Above all, I think, there is a norm of reciprocity which requires debaters to treat each other with civility and respect.

I published a piece in the Harvard Law Review a few years ago in which I explored the application of this norm in the context of great moral debates in our national history, especially the debate over slavery in the 19th century and abortion in our own time. What I wrote has direct relevance, I believe, to the questions you have posed:

"People ought to respect the principle of reciprocity whenever they find themselves in disagreement with people of goodwill, regardless of whether they find the position (or even the arguments) advanced by such people to be worthy of respect.  It is not the worthiness of a position (or argument) that makes this principle applicable.  Rather, it is a matter of respecting people's reasonableness (even when they are defending a view that one can only judge to be fundamentally unreasonable) and their goodwill (even when they are defending practices and policies that one can only judge to be gravely unjust or in some other way immoral).  By observing the principle of reciprocity in moral and political debate, one is not necessarily indicating respect for a position (which one perhaps reasonably judges to be so deeply immoral as to be unworthy of respect), but for the reasonableness and goodwill of the person who, however misguidedly, happens to hold that position.  The point of observing the requirements of reciprocity is to fulfill one's obligations in justice to one's fellow citizens who are, like oneself, attempting to think through the moral question as best they can."

Now this analysis raises a question about how it is that reasonable people of goodwill can embrace policies and practices that are profoundly unjust or immoral.  That turns out to be a very complicated question, indeed.  As a brute matter of fact, however, it is all too easy for any of us to fall into moral error; and our basic reasonableness and even our goodwill cannot provide a guarantee that we won't.  Most of us (at least those of us who are not black) imagine that we would have been abolitionists in the days of slavery; yet the truth is that only a few of us actually would have been.  How could otherwise decent people--folks very much "like us"--have supported so horrific an evil? I offer some reflections on that, and on the question of how reasonable people of goodwill can today support abortion, in the Harvard Law Review article I mentioned.  Citation:  110 Harv. L. Rev. 1388-1406 (1997).

Best wishes,

Robby

Saturday, September 30, 2006

An Uncomfortable Thought ...

Can we disagree with one another, sometimes fundamentally about important issues (the morality of same-sex unions, e.g., or the prudence of using the criminal law in this society at this time, to deal with the moral tragedy of abortion), without our "judging" one another--judging the position, yes, but not one another?  Should we even aspire to do so?  A thought prompted by the following, which I found my way to through dotCommonweal:

A Monk’s Alphabet

September 18th, 2006

DriscollJeremy Driscoll, OSB, is a most unusual monk. He’s a poet, patristics scholar, and professor who teaches both in Rome and at Mount Angel Abbey in Oregon, his monastery. He’s also the author of A Monk’s Alphabet, one of the most unusual books of this publishing season. The book consists of 196 short essays, reflections, and ruminations, arranged alphabetically from Airplane to Zerr. (Bonaventure Zerr was the seventh abbott of Mount Angel. Father Driscoll’s moving account of his death concludes the book.) He is a writer of exceptional talent and insight.

Great writers such as Pascal and Marcus Aurelius employed the genre of short, provisional essays, loosely organized, and Father Driscoll makes good use of the freedom the form offers. Here, for example, is his opinon of “Smugness:”

“God so hates religious smugness and self-satisfaction and the certainty that the other is a sinner and will go to hell that he would empty hell completely of the sinners who deservedly belong there and place the smug one there all alone to pass an eternity of painful astonishment, learning that God has mercy on whom he will. Should some faint sense of desiring to adore the One who is so merciful crack even slightly the bitterness of this terribly misused virtuous one, maybe then even hell would be emptied of him.

“In short, it is not for me to judge, not for me to presume to pronounce on others. ‘The last shall be first, and the first last.’”

[For the source of this post, click here.]

Helping to Redeem 9/11

Gene Steuerle and I attended two terrific Catholic schools in Louisville, Kentucky, way back in the Dark Ages:  Saint James Grade School, 1952-60, and Saint Xavier High School, 1960-64.  Gene lost his wife--Norma Lang Steuerle--when the American Airlines plane on which she was a passenger hit the Pentagon on September 11, 2001.   Gene and his two daughters--Kristin and Lynne--took the money they received in consequence of Norma's death and founded an organization called Our Voices Together:  Building a Safer, More Compassionate World(Some of you may have seen Gene interviewed about the organization on This Week With George Stephanopoulos on September 11, 2006.)  I recommend that you take some time to browse the organization's website.  Maybe you'll want to add your name to the e-mail list and receive the periodic newsletter.  Click here.
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Friday, September 29, 2006

John Allen reports ...

[This from the 9/29/06 edition of John Allen's All Things Catholic, here]

One critical reaction [to Benedict XVI's controversial talk on Islam] comes from Richard Gaillardetz, the Murray/Bacik Professor of Catholic Studies at the University of Toledo. Gaillardetz writes:

Most commentators have overlooked a provocative claim in his address that articulates a fundamental - and to my view quite troubling - element of Pope Benedict's theological vision. … The pope makes the assertion that because Greek influence can already be seen in the Old Testament, and because the New Testament was written in Greek, Christianity is inextricably tied to the "Greek spirit." He rejects out of hand the process of "de-hellenization," the history of which he maps out in three stages. His historical schematization of that process is, I believe, sweeping and simplistic, but that is an argument for another day.

Particularly disconcerting is his account of the third stage of the process, in which many scholars have differentiated between the inherent revelatory and salvific significance of Jesus of Nazareth, and the ways in which the Christ event was quickly inculturated in a Hellenistic milieu. He describes this approach as "coarse and lacking in precision." He then suggests that the early adoption of a Greco-Roman world view is an essential and providential development in the history of Christianity. This assertion constitutes a huge theological leap that is in no way substantiated through careful theological argumentation. Nowhere does he justify why this moment of Hellenistic inculturation transcends the realm of historical contingency to enter into divine providence. In the pope's encomium to the "Greek spirit" one almost forgets that the Word became flesh as a Galilean Jew and not a citizen of Athens!

The pope's views on this topic are of great consequence for the larger church. I recently read through three volumes of groundbreaking documentation regarding the work of the Federation of Asian Bishops' Conferences produced over the past three decades. That reading, accompanied by my recent visit to East Asia, has reinforced in me a wonderful appreciation for "the new way of being church" that so many Asian leaders have celebrated. I had a similar experience regarding the birth of an authentically African Christianity emerging on that continent. Much of what is developing theologically in those two regions is undercut by the pope's insistence on the normativity of a Greek philosophical articulation of the faith. The pope clearly believes that the intellectual and cultural synthesis that was achieved in Europe over the course of two millennia is normative for the rest of the church. Such a view leaves little room for substantive processes of local inculturation.

In the wake of Vatican II, Karl Rahner famously claimed that the most important contribution of the council was the fact that it had gently set aside that missiological mentality which saw the church essentially as a "Western European export firm" and began to move toward becoming a genuine world church (Weltkirche). The pope's recent address articulated a central feature of his ecclesiological vision, a vision far closer to the European export firm than the world church that Rahner believed was a-borning.

I am grateful for much that this new papacy has brought us: a more measured wielding of papal authority, a more modest public papal profile, a greater theological depth in papal reflections. But now, at a time when our church is bursting with new vitality and fresh insight in places like Africa, we have a pope who seems incapable of breaking out of his European intellectual milieu.

Whatever one makes of Gaillardetz's analysis - and he would be the first to recognize the need for further discussion - it illustrates the sort of reflection on the heart of the Regensburg address one hopes will now emerge.

What Would Robby George Say?

[I picked this up from the New York Times online:]

[Andrew] Sullivan dissents from [Jack] Balkin [Yale Law School] and others who have suggested that the timidity of the Democratic opposition to the detainee bill will lead liberal voters to stay home this fall. He says opponents of the Bush administration’s handling of the war on terror must vote Democrat, even if they don’t like the Democrats:

In congressional races, your decision should always take into account the quality of the individual candidates. But this November, the stakes are higher. If this Republican party maintains control of all branches of government, the danger to individual liberty is extremely grave. Put aside all your concerns about the Democratic leadership. What matters now is that this juggernaut against individual liberty and constitutional rights be stopped. The court has failed to stop it; the legislature has failed to stop it; only the voters can stop it now. If they don’t, they will at least have been warned.