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, September 19, 2005

Martin Marty on Catholics and Contraception

Sightings  9/19/05

Control Issues
-- Martin E. Marty

Twice a year, two-score Midwest historians of Christianity, more of them Roman Catholic than not, gather at the Cushwa Center at the University of Notre Dame.  We celebrate and criticize one book each meeting.  This time it was Catholic University of America Professor Leslie Woodcock Tentler's Catholics and Contraception: An American History -- a prize winner, and deservedly so.  Two Catholic historians offered formal critical responses, and then the rest of us joined in.

Professor Tentler is not an ideologue or an angry rebel.  There was anger, but more than that, pain was evident in the book and in her presentation -- though both the pain and the anger were enlivened by humor.  She chronicles the attempt by bishops and priests to enforce anti-birth control measures in the first half of the previous century, and then observes the devastation to church discipline and authority that followed when too few Catholics believed in the strictures, or found that the strictures did not match their experiences.

Tentler tells of the millions of Catholics who tried -- oh! they tried -- to follow the teachings, and how at first they enjoyed the adjustments that came with gradual support for "family-planned" "natural methods" of limiting numbers of children.  As an old hell-spotter on the margins of texts, I found the margins of my copy of the book getting cluttered with notations of "hell" and "purgatory."  Women who really believed in the values of obedience and confession had to confess, and regularly heard that if they remained engaged in family planning, hell was their destiny.  Mission preachers in religious orders were most up-front, mainly because they could move on a few days after preaching a mission.  Parish priests often came across as a much more understanding and humane lot, since they dealt continuously with parents of eleven or twelve children who could not, in Depression times, bear having a thirteenth.

"Don't profane your holy matrimony with practices which fill heaven with disgust and hell with chuckling grins," preached one missioner against coitus interruptus.  New York's Archbishop Hayes: "To take life after its inception is a horrible crime; but to prevent life that the Creator is about to bring into being is satanic .... [because] not only a body but an immortal soul is denied existence in time and eternity ... [through that] diabolical thing," birth control.  Something had to give, and most everything did, after Pope Paul VI issued Humanae Vitae in 1967, against the advice of most of his appointed counselors.  He argued that to depart from the teaching of previous popes would lead to loss of papal authority.  It turns out that not departing did.

Today there are movements among some Catholics to counter the practices most have adopted, as they advocate "natural methods" or ascetic life among married couples.  Tentler would probably enjoy overhearing authorized and encouraged dialogues and arguments between that minority and everybody else.  But, she and others rued, since Humanae Vitae, after which such dialogue was discouraged or forbidden, "we lack a structure for even discussing these things."

Lacking a structure means that battles are fought among activists and editorialists who can blast the "other side," but find no forum to talk to the other, or to listen.  Such a breakdown of structure afflicts many non-Catholic Christians, too.  Catholics report that priests today rarely bring up the subject.  Silence.

Martin E. Marty's biography, current projects, upcoming events, publications, and contact information can be found at www.illuminos.com.

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

Saturday, September 17, 2005

Recommended Reading

New York Times
September 18, 2005

Forgetting Reinhold Niebuhr

By ARTHUR SCHLESINGER JR.

THE recent outburst of popular religiosity in the United States is a most dramatic and unforeseen development in American life. As Europe grows more secular, America grows more devout. George W. Bush is the most aggressively religious president Americans have ever had. American conservatives applaud his "faith-based" presidency, an office heretofore regarded as secular. The religious right has become a potent force in national politics. Evangelicals now outnumber mainline Protestants and crowd megachurches. Billy Graham attracts supplicants by the thousand in Sodom and Gomorrah, a k a New York City. The Supreme Court broods over the placement of the Ten Commandments. Evangelicals take over the Air Force Academy, a government institution maintained by taxpayers' dollars; the academy's former superintendent says it will be six years before religious tolerance is restored. Mel Gibson's movie "Passion of the Christ" draws nearly $400 million at the domestic box office.

In the midst of this religious commotion, the name of the most influential American theologian of the 20th century rarely appears - Reinhold Niebuhr. It may be that most "people of faith" belong to the religious right, and Niebuhr was on secular issues a determined liberal. But left evangelicals as well as their conservative brethren hardly ever invoke his name. Jim Wallis's best-selling "God's Politics," for example, is a liberal tract, but the author mentions Niebuhr only twice, and only in passing.

[Read on ...  Click here.]
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Friday, September 16, 2005

Conservative Christian Law Schools

[From PBS's "Religion & Ethics" program:]

Conservative Christian Law Schools

September 16, 2005   Episode no. 903
http://www.pbs.org/wnet/religionandethics/week903/feature.html

BOB ABERNETHY, anchor: Gay marriage and the words "under God" in the Pledge of Allegiance are two of many issues on which conservative Christians have strong views. Many of them want to change public policy and the law to better reflect their faith and, to that end in the last decade, they have founded three conservative Christian law schools. There are now more than 2,000 graduates of those schools at work in private practice and in government and politics. Lucky Severson reports.

UNIDENTIFIED PROFESSOR (praying): Heavenly Father, thou has placed me in a church which thy Son has purchased with his own blood.

LUCKY SEVERSON: It's abundantly clear that this is not your typical law school. Each and every class at Regent University School of Law in Virginia Beach begins with prayer. And it doesn't end there. This is Dean Jeffrey Brauch.

Dean JEFFREY BRAUCH (Regent University School of Law): We are adding something in addition to what you would get in another law school, and that is Christian thinking on the substance of law and Christian thinking on how to practice law.

SEVERSON: There are about 500 law students at Regent. They learn the law of the land and also a higher law, based on conservative Christian interpretation of biblical principles. If there's a conflict, some might even turn down cases because of their religious beliefs.

(to student Nicole Jocobo): So who is the ultimate judge, as far as you are concerned?

NICOLE JOCOBO (student, Regent University School of Law): God.

SEVERSON: Nicole Jocobo is a third-year student from Florida. Emily Joy Smith is also in her third year. She's from Georgia.

EMILY JOY SMITH (student, Regent University School of Law): I am going to view every perspective, every situation, every client that walks in my office through kind of glasses that are Christ-colored.

SEVERSON: Regent University was founded by Pat Robertson 20 years ago. The law school opened in 1996. Robertson says his overall plan was the Lord's idea -- a way to counter the country's drift toward what Robertson calls "unbridled hedonism" and restore society to what he says were its original Judeo-Christian values.

Reverend PAT ROBERTSON (founder, Regent University): The idea was to challenge the culture in the areas that are most important to people. The first, of course, was television, and then the theatre and journalism, and then, of course, beyond that was law, which has such a dramatic effect on everybody's lives.

SEVERSON: The law school boasts graduates working in all levels of state and federal government, also as judges, prosecutors, state representatives, lawyers for the FBI, CIA, and Justice Department. Former Attorney General John Ashcroft is now part of the Regent faculty.

Rev. ROBERTSON: I was just overwhelmed at the steamroller of the ACLU. And they were just getting away with murder. They were stripping our society of its religious symbolism all the way up and down the line.

SEVERSON: To combat the American Civil Liberties Union, Robertson founded the American Center for Law and Justice -- that's the ACLJ, not the ACLU. The ACLJ has argued and won several cases before the High Court, including the right to organize Bible clubs in public schools. Jay Sekulow, the chief counsel, has been asked by President Bush to help shepherd Judge John Roberts through the confirmation process. Sekulow considers himself a conservative Christian who thinks most law schools are too liberal.

JAY SEKULOW (chief counsel, American Center for Law and Justice): Oh, I think there was a huge need for law schools that have a conservative judicial philosophy to become players in the law school area and the law school arena and to be able to train law students.

SEVERSON: Regent was the first of the conservative Christian law schools but not the last. In Michigan, the Ave Maria Catholic Law School was recently granted accreditation. And the Reverend Jerry Falwell is awaiting accreditation for his new law school at Liberty University. Many conservative Christians see this as a way of getting their values put into law. Others say it's a troubling erosion of the separation of church and state.

Professor Marci Hamilton is a constitutional scholar at the Cardozo School of Law in New York. She clerked for Justice O'Connor and describes herself as a conservative Goldwater Republican and a very religious Presbyterian. She says she once believed in religious liberty at any cost but became disillusioned with abuses in the name of religion.

Professor MARCI HAMILTON (constitutional scholar, Cardozo School of Law): They found their religious power, a cadre of them, conservative Christians. They have decided that the culture doesn't reflect their values, and so they are going to use a law school to inculcate their values.

SEVERSON: Does that trouble you?

Prof. HAMILTON: It's deeply troubling. What they've done is they've now blurred the lines -- forget the separation of church and state.

Dean BRAUCH: It's one thing to have an institutional separation between church and state, which is very important, but it's another thing to say there should be a separation between faith and law or faith and policy. I'm pleased that some of our graduates are going to go and impact public policy through their careers, you know. I'm glad that one of our graduates is running for attorney general in Virginia and may well be the next attorney general in Virginia.

BOB MCDONNELL (candidate, attorney general, VA, campaigning): How are you doing, sir? I'm Bob McDonnell, running for attorney general.

SEVERSON: His name is Bob McDonnell. He's a former lieutenant colonel in the army and has served as a delegate in the Virginia General Assembly. McDonnell personifies the mission of his alma mater.

MCDONNELL: I always try to do the best I can and make sure that my votes reflect the will of the people. But when it comes to certain absolutes like the right to life, the right to individual liberty, or my belief in, you know, what marriage ought to be, I'm going to try to do what I think is the right thing. It may not always be popular, but I think people elect you to be a person of principle.

SEVERSON: And behind Bob McDonnell there are other Regent law students whose religious beliefs drives them to change social policy. Roger Byron, a Naval Academy graduate, plans to go into government, maybe politics.

ROGER BYRON (student, Regent University School of Law): I would approach ROE V. WADE in that -- whereas the Supreme Court did make a decision to apparently legalize abortion that in fact is not a proper law. While the Supreme Court may have said it is one, it does not necessarily mean that it is one.

Prof. HAMILTON: I think there is something wrong if the primary value in the institution is not the rule of law. It is one thing to produce lawyers who will pass the bar and will be representative of a legal society. It's another thing to graduate lobbyists with a certain agenda.

SEVERSON: Hamilton wrote a controversial book called GOD VS. THE GAVEL after arguing successfully before the Supreme Court that Congress had given religious organizations too much power.

Prof. HAMILTON: We've been let down by our legislators who have not been filters; rather, they've been openings for religious groups to get whatever they ask for. What we need is to remind legislators that everybody is served when the common good is served.

Rev. ROBERTSON: It sounds cliché to talk about the struggle for the soul of America, but I do think that struggle has been going on. And I believe the more traditional people of faith seem to be winning some battles in this.

Dean BRAUCH: It's not our sole mission to send people out who are going to affect public policy. I also want men and women who are going to be great lawyers who would have been there to say something when Arthur Anderson or Enron or Tyco or those cases or the decisions made in those situations came up.

SEVERSON: But Dean Brauch is clearly pleased with the school's role in social policy -- proud of the graduate leading the fight for a constitutional amendment banning gay marriage in Arkansas. Other grads are defending traditional marriage in California.

Dean BRAUCH: Four of our graduates were representing -- represented Terri Schiavo's parents and seeking to keep her alive. And so I was very glad that on that issue, protecting life, there were Regent students there.

Prof. HAMILTON: But what was most interesting about that event was we soon found out between 70 and 80 percent of the American people thought Congress should have stayed out of the issue. What that shows, in my view, is that the conservative Christians may well have been at the apex of their power.

SEVERSON: Pat Robertson believes that the Supreme Court nominations are of crucial importance.

Rev. ROBERTSON: Over a hundred years the impact of the Supreme Court decision will be vastly greater than the impact of Osama bin Laden. He's a temporary annoyance who we are going to get rid of.

SEVERSON: If John Roberts is confirmed as chief justice, he'll be presiding over issues of great concern to Christian conservatives.

Mr. SEKULOW: But, I think, what is realistic on the abortion debate at the Supreme Court of the United States is going to be probably the partial-birth abortion case. I think that one is going to be up there either this term or next.

Prof. HAMILTON: I don't think the court is going to need to hold ROE V. WADE unconstitutional. I don't think they will. But it is very possible that Justice Roberts would legalize a ban on partial-birth abortion, and once that's the line that's drawn, ROE V. WADE is really just a symbol; it's not a right.

SEVERSON: And if Judge Roberts is confirmed, Jay Sekulow will be arguing one of the first cases before the court involving anti-abortion protestors. And there are two more important cases involving parental consent for teenagers seeking abortions and assisted suicide coming up. Lawyers on both sides are working overtime, and in the thick of it are conservative Christian lawyers.
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Tuesday, September 13, 2005

For Those In or Near NYC Next Week


A reminder of our panel next Monday
Hope to see you!

Fordham Center on Religion and Culture

Monday, 19 September | 5:30-7:30 p.m.
Fordham University

Can We Talk?
Discussion, Dialogue and Debate in the Catholic Church
Leon Lowenstein Center|12th Floor Lounge |113 West 60th Street |New York City

Disagreement is an old story among Catholics; the church’s record in handling it is decidedly mixed. The combination of an educated laity and modern means of communication has complicated the picture. The panel will look at:

• What is the place of disagreement, dialogue and debate in today’s Church?
• How should disagreement and criticism be conducted?
• How important is frank public discussion? What are the costs of
   avoiding or repressing it?
• If not Catholic forums, what forums will provide people with ideas and information about Catholicism?


Join us for this discussion organized by the Fordham Center on Religion and Culture, moderated by co-director Peter Steinfels.

Panelists will include:
Bishop Joseph Sullivan | Brooklyn Diocese
Leslie Tentler, Ph.D. | Professor of History, Catholic University of America
Rev. Joseph Koterski, S.J. | Professor of Philosophy, Fordham University
Geoffrey Boisi | Chairman and Senior Partner, Roundtable Investment Partners LLC

Free and open to the public
R.S.V.P. | [email protected] | (212) 636-6927


Margaret Steinfels, Co-director
Fordham Center on Religion and Culture
113 West 60th Street, Room 224
New York, NY10023-7484
Phone: 212-636-7624
Fax: 212-636-7863
e: [email protected]
web: www.Fordham.edu/religculture/

Tom Berg on Noah Feldman

For fellow blogger Tom Berg's review of Noah Feldman new book, Divided By God:  America's Church-State Problem--and What We Should Do About It, click here.
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Monday, September 5, 2005

Rick Garnett on William Rehnquist

[I thought that this piece by Rick deserved more than a link.  Posted yesterday on Slate.]

Tennis and Top Buttons
Remembering William H. Rehnquist.
By Richard W. Garnett
Posted  Sunday, Sept. 4, 2005, at 12:25 PM PT

I wrote a book report in high school on The Brethren, the Bob Woodward and Scott Armstrong "behind the scenes" takedown (or send-up) of the early Burger Court. The justices struck me, I have to admit, as a dysfunctional and petty bunch, but I remember thinking that one of them seemed pretty "cool." The youngest justice, Bill Rehnquist, apparently went in for practical jokes, ping-pong in the basement, swashbuckling dissents, and shaggy hair. I am embarrassed to admit that the thought actually occurred to me, "It would be fun to be one of these 'law clerks' for him."

About 10 years later, I showed up at the court for my clerkship interview with the chief, sweating horribly from the combined effects of Washington, D.C.'s June humidity and my one wool lawyer suit. I can only imagine how obviously disheveled, in both appearance and mind, I seemed to his assistants, Janet and Laverne, as I waited. Right on time, the chief came into the waiting room, in casual clothes, shook my hand, and said, "Hi, I'm Bill Rehnquist."

He showed me around his chambers and the court's conference room. We had a friendly conversation about obscure Arizona mining towns, our respective hitchhiking experiences, the death penalty, and my childhood in Anchorage, Alaska. Thinking back to The Brethren, I asked him about pranks he'd played on Chief Justice Burger. When he asked me if I had any questions, I said—thinking it would be my only chance—that I would appreciate seeing the justices' basketball court, "the Highest Court in the Land." At the end of the interview, when the chief remarked that he'd never had a clerk from Alaska before, I started to get my hopes up.

During my clerkship year, the chief, my co-clerks, and I played tennis together weekly at a public, outdoor court near Capitol Hill. (We played on the same day that the week's "cert memos," analyzing petitions filed by those seeking review of their cases, were due, so—more than a few times—clerks played without having slept.) We took turns driving and buying a new can of balls. I was the chief's doubles partner that year, and I several times beaned him with my hopelessly chaotic serves. One day, I am ashamed to admit, after yet another double-fault, I slammed my racket to the ground and yelled an extremely unattractive expletive. My co-clerks looked across the net at me in horror. The chief, though, didn't turn around. He just slowly bent over, put his hands on his knees, and started laughing.

For me, maybe the best part of the job was the daily 9:30 a.m. meeting. We'd drink our coffee, talk a bit about football, movies, and weather, and check up on pending cases and opinions. Sometimes he'd wonder aloud why one colleague or another still hadn't circulated a draft. (He was always, though, unfailingly fair and genial about and toward his colleagues; he would never have tolerated from any clerk a snide remark about a justice.)

In keeping with his days as a sideburn-and-psychedelic-tie-wearing junior justice (though not with his expectations of lawyers who appeared before the court!), the chief didn't impose on his clerks the standard law-firm-ready attire rules. He did, however, have a problem with T-shirts showing under our shirts. So, whenever my co-clerks and I had a meeting, we'd quickly button up our top buttons. I sometimes forgot to hide the offending undergarment, though, and one day, in the middle of a conversation about a pending case, he looked at me, sighed, and wondered why even his "extremely lax" dress code was proving such a burden.

We had cheeseburgers and beer ("Miller's Lite," he called it) together regularly, and he allowed himself one cigarette with lunch. He invited us to his home for dinner and charades; I don't think I'll ever forget watching the chief act out Saving Private Ryan, crawling around under his coffee table, pointing his fingers like a gun, and mouthing "pow, pow!"

Chief Justice Rehnquist liked to put together friendly brackets and pools for the NCAA tournament, the Kentucky Derby, and the bowl games. One day, just after the 1996 election, he passed down to me a note from the bench. I assumed he wanted a law book or a memo, but instead he asked me to find out what was happening in one of the not-yet-called House races that was integral to our inter-chambers contest.

The chief's chambers ran like clockwork. We had a routine, and it worked well. He knew his job, and he knew he was good at it. He knew a staggering amount of law and was scarily quick at seeing and getting to the heart of any question. To prepare for oral arguments, the chief preferred not to read long, heavily footnoted memos, opting instead for talking through problems with his clerks, while walking around the block outside the Supreme Court building—sometimes twice, for a particularly tricky case. It was surprising, and always funny, that so few of the gawking tourists around the court recognized the chief justice as he ambled around Capitol Hill, doing his work. (He didn't mind at all).

A few years ago, lured by the promise of great seats for the Michigan game (the Fighting Irish won, though the chief thought they "won ugly"), the chief justice visited Notre Dame and—after a game of doubles with me and two colleagues—spent an hour with my First Amendment class. The conversation quickly turned to advice about life and lawyering, balancing work and family, being a good parent, making a difference, and contributing to our communities. It meant a lot, to me and to my students, that he clearly cared more about helping these students find happiness in the law than about selling them on his legal opinions.

The chief was a lawyer's lawyer. He taught and inspired me, and all of his clerks, to read carefully, to write clearly, and to think hard. He will, quite appropriately, be remembered as one of the few great chief justices. For me, though, William Rehnquist is more than a historic figure and a former boss. Today, thanks in no small part to him, I have a great job: I get paid to think, research, and write about things that matter and to teach friendly and engaged students about the law. I will always be grateful. And I hope that the deluge of political spin to come will not drown out what Americans should remember about the chief: He was a dedicated public servant, committed to the rule of law and to the court. He regarded himself as the bearer of a great trust and of a heavy obligation of stewardship. In my judgment, he was faithful to that trust, and he fulfilled that obligation.

Wednesday, August 24, 2005

PAT ROBERSTON AD ABSURDUM ...

PAT ROBERTSON URGES U.S. TO COVET CHAVEZ’ WIFE
Televangelist Breaks Second Commandment in Two Days


One day after Pat Robertson called for the U.S. to assassinate Venezuelan President Hugo Chavez, the televangelist raised the ante again today, urging the U.S. to covet President Chavez’ wife. In so doing, Mr. Robertson appeared to contradict two of The Ten Commandments in as many days, having flouted “Thou shat not kill” on Monday. Speaking on the television program he hosts, “The 700 Club,” Mr. Robertson lashed out at the Venezuelan strongman once more, telling his audience, “It’s high time that the United States coveted Hugo Chavez’ wife.” Warming to his topic, the opinionated preacher added, “And while we’re at it, we should covet his house, his manservant, his maidservant, his ox and his ass, for that matter.” Mr. Robertson indicated that all of the coveting he referred to would not require a war, arguing that it could be all done through the use of covert operatives within Venezuela. “We could send some special ops guys down there, and bang-bang, covet all of that stuff,” Mr. Robertson told his audience. Speaking to reporters after the program, Mr. Robertson was unrepentant about having broken two of the Ten Commandments in two days, telling them, “I fully intend to obey the other eight, and eight out of ten ain’t bad.” But the televangelist seemed to waver from that position slightly, telling reporters that the U.S. should “bear false witness against Hugo Chavez and dishonor Hugo Chavez’s mother and father.”

[From the Borowitz Report, 8.24.05.]

Tuesday, August 23, 2005

More on Catholic Social Teaching

Unless I've overlooked something, this new collection has not yet been mentioned:

Modern Catholic Social Teaching:  Commentaries and Intetrpretations, edited by Kenneth R. Himes,  Lisa Sowle Cahill, Charles Curran, David Hollenbach, and Thomas Shannon (Georgetown University Press 2005).

To see the book at amazon.com, click here.
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Monday, August 22, 2005

Another Book ...

Here's an addition to the Booklist for Catholic Legal Theory:

Jean Porter, Nature as Reason:  A Thomistic Theory of the Natural Law (Eerdmans 2005).

Professor Porter is a member of the theology department at Notre Dame.
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Wednesday, July 27, 2005

Law and (Liberation) Theology

I haven't yet read this--just saw the cite and thought I'd call MOJ readers attention to it.

Liberation Theology and the Law. Articles by Rhonda V. Magee and William W. Bennett. 3 Seattle J. for Soc. Just. 587-673 (2005).

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