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.

Thursday, January 13, 2005

The Right to Privacy - A Response

Yesterday Rob asked "where exactly does the right to privacy's development deviate from the Catholic worldview?"  I look forward to hearing the responses of others (bloggers and readers).

My own response is multi-layered.  At a separation of powers level, I would suggest that the Court has deviated from a Catholic worldview by creating a constitutional right to privacy in "interpreting" a Constitution that does not have one.  A Catholic worldview respects the authority of various offices of power, and it seems to me that the Court in creating a right to privacy has failed to respect the authority of the people of the United States to speak through their legislators.  In short, the Court has exceeded its authority from my judicial minimilist perspective.  The Meyer and Pierce opinions appeal to me, and I would like to find a way to reconcile them with my understanding of the judiciary, but to date I have not been successful.

At a prudential level, only Roe and the other abortion cases deviate from a Catholic worldview.  Lawmakers may decide that prudence dictates that the state not use its police powers to outlaw contraceptive use (for married couples or even unmarried individuals) or homosexual sodomy, leaving individuals as free moral agents responsible for their own moral development.  A state is not free, however, to license free moral agents to intentionally kill innocent human life.

At an anthropological level, I would suggest that Griswold, Eisenstadt, Lawrence, and the abortions cases all deviate from a Catholic worldview.  Griswold may be shrouded in language about the sacredness of the marital relationship, but its anthropology, which came to light in Eisenstadt, has been fully exposed in Casey and Lawrence, especially in the mystery passage.  This radical autonomy of self-creation is fundamentally at odds with a Catholic worldview.  As I have argued in Sex, Marriage, and Procreation:  The Judicial Decimation of American Family Law, Lawrence (and Goodridge) are logical extensions of Griswold.

Michael S.

Wednesday, January 12, 2005

Bibliographies for Catholic (and more broadly Christian) Legal Scholarship

Students doing research at the intersection of law and Christian thought might be interested in the two bibliographies linked on the left hand column of this page.

Integral Formation of the Human Person

As we begin another semester, I thought Prof. Izaguirre's essay entitled "The Urgency of an Integral Formation" might be of interest to students and faculty alike. 

Friday, January 7, 2005

America's Identity

Pope John Paul II believes that nations have unique gifts to offer their people and the world community in building a civilization of love.  At the close of the Compostelan Year, he said:  "Spain, be yourself.  Discover your origins! ... Seek in fidelity to your historic being the course for your future and the guarantee of your progress." 

What does it mean for the United States to be itself?  Does the United States have a unique vocation in the world?  What is it?  If so, what tensions, if any, exist between that vocation and our power?  What does it mean to discover our origins?  To seek in fidelity to the United State's historic being the course for our future and the guarantee of our progress?

Any thoughts?

Michael S.

Tuesday, January 4, 2005

"Homo Indifferens"

I thought that this address by Cardinal Poupard (reported on Zenit) on the the changing face of atheism in todays world and the corresponding challenges to Christians would be of interest to our readers.  In his remarks, the Cardinal encourages the creation of Christian Cultural Centers where Catholics and other interested persons can actively engage in the connection of faith with culture.  Comments are welcome.  To subscribe to Zenit go to http://www.zenit.org/english/subscribe.html

"Homo Indifferens" Is Still a "Homo Religious"
Cardinal Poupard's Take on Secularization in the West

MINSK, Belarus, DEC. 18, 2004 (Zenit.org).- Here is an excerpt of an address Cardinal Paul Poupard, president of the Pontifical Council for Culture, gave during a conference Dec. 10 at the Saints Cyril and Methodius Theological Institute.

* * *

Christianity and the Challenges of Secularism, Unbelief and Religious Indifference



The Changing Face of Unbelief

Earlier this year I led the members and consultors of the Pontifical Council for Culture on a reflection intended to give a new impetus to the response to the challenges of unbelief and religious indifference. We began by making an updated map and analysis of unbelief in the world.

As regards the analysis of the state of unbelief in the world today, let me share with you the following conclusions:

1. Globally, unbelief is not increasing in the world. It is a phenomenon seen primarily in the Western world. The cultural model it inspires spreads through globalization, and exerts an influence on the different cultures of the world, and erodes popular religiosity from them.

2. Militant atheism recedes and no longer has a determining influence on public life, except in those regimes where an atheistic political system is still in power. Contrarily, a certain cultural hostility is being spread against religions.

3. Atheism and unbelief have changed their profile. Today the phenomena seem to be connected more to lifestyle.

4. Religious indifference or practical atheism is growing rapidly. A large part of secularized societies lives with no reference to religious authority or values. For "homo indifferens," "Perhaps God does not exist, it doesn't matter, anyway we don't miss him." Well-being and the culture of secularization provoke in consciences an eclipse of need and desire for all that is not immediate. They reduce aspiration toward the transcendent to a simple subjective need for spirituality, and happiness to material well-being and the gratification of sexual impulses.

5. A dwindling number of regular church-goers can be seen in those societies marked by secularization. But this undeniably worrying fact does not, however, mean that unbelief is on the increase. Rather, it points to a degraded form of believing: believing without belonging. It is a phenomenon of "deconfessionalization" of "homo religiosus," who, refusing to belong to any binding confession, jumps into and out of an endless confusion of heterogeneous movements. This often silent exodus often heads for the sects and new religious movements.

6. In the West, where science and modern technology have neither suppressed religious meaning nor satisfied it, a new quest that is more spiritual than religious is developing, but it is not a return to traditional religious practices. Often, this spiritual awakening develops in an autonomous fashion and without any links to the contents of faith and morals handed on by the Church.

7. Finally, at the dawn of the new millennium, a disaffection is occurring both in terms of militant atheism and in terms of traditional faith. It is a disaffection in secularized Western cultures prey to the refusal or simple abandonment of traditional beliefs, and affects both religious practice and adherence to the doctrinal and moral contents of the faith.

The man whom we call "homo indifferens" never ceases to be a "homo religious"; he is just seeking a new and ever-changing religiosity. The analysis of this phenomenon reveals a kaleidoscopic situation where anything and its opposite can occur: on the one hand, those who believe without belonging, and on the other, those who belong without believing in the entire content of the faith and who, above all, do not feel obliged to respect the ethical dimension of the faith. In truth, only God knows what is at the bottom of our hearts, where His Grace works secretly.

I can give you a similar description by reading a report from one of the groups of bishops who once every five years come to

Rome

to pray at the tombs of the apostles Saints Peter and Paul. The report recounts the familiar story:

"In many parts of the Western world, the numbers attending Church are decreasing while the numbers of those who live as though God did not exist and of those who are categorized as 'believing without belonging' continue to rise. Paradoxically, 'faith' in atheism is also flailing with levels down to just 1 or 2%. The old interlocutors of the dialogue with nonbelievers, the famous theorists of atheism, such as Nietzsche and Marx, are somewhat passé and nobody has seriously replaced them. Instead, there is a notable growth in indifference and a waning of well-informed debate and dialogue. We live in a culture of indifference and, what is perhaps worse, ignorance."

b) The Causes of Unbelief: Secularism and Indifference

Christianity has a curious place in the European project. On the one hand it provides the philosophical, anthropological and moral inspiration behind the project. On the other due to various cultural shifts it has often been sidelined or worse positively excluded. The recent Rocco Buttiglione affair is a case in point. On account of his public witness concerning marriage and homosexuality he was excluded from an important post at the European Commission. This reflects a developing separation in politics and the public square between the religious and secular.

Secularism is a trend that has come out of liberalism. It is an evil side effect and demands correction. We can be confident because secularism will never exclude religion from the world, for the simple fact that each and every man is fundamentally religious. But it bears emotionalism and individualism among its defining values, as they are exemplified in the New Age of cultural abandonment and privatized religion and consequent reduction of the pursuit of the transcendentals to mere technological progress and the feeling of well-being.

And these have devastating effects on

Europe

. Secularism also means relativism as it comports a denial of the Truth. This ideology has led to the indifference and unbelief that I mentioned before in our map of unbelief. It is an attitude that has led to the so-called designer dogma and stand-off between

Spain

's socialist government and the Catholic Bishops concerning questions related to the value of life, solidarity and the family, and brings with it the evils of abortion, and the pointless civil marriage of homosexuals.

In the words of another analysis:

"Nowadays there is a tendency to claim that agnosticism and skeptical relativism are the philosophy and the basic attitude which correspond to democratic forms of political life. Those who are convinced that they know the truth and firmly adhere to it are considered unreliable from a democratic point of view, since they do not accept that truth is determined by the majority, or that it is subject to variation according to different political trends. It must be observed in this regard that if there is no ultimate truth to guide and direct political activity, then ideas and convictions can easily be manipulated for reasons of power. As history demonstrates, a democracy without values easily turns into open or thinly disguised totalitarianism" (encyclical, "Centesimus Annus," No. 41).

You are aware more than I of the perils of totalitarianism, but in

Western Europe

too, fundamental spiritual values have fallen prey to secularism. As a result, even in traditionally Christian countries such as

France

,

England

and

Spain

, the hierarchy of values has been overturned and Truth, Beauty, and Goodness have been relegated below individualized, relativized and social values.

The centrality of the individual has been promoted but the real value of the human person has been forgotten. Such that democracy is now considered as a supreme value superior to the Truth, rather than a privileged means for discerning, reflecting and protecting the Truth. Another effect of this loss of Christian culture is seen in the fact that it is now necessary to offer basic courses on Christianity to students of the arts so that they can understand the great masterpieces and understand their own Christian culture. For without it, how can they appreciate the full value of Bach's "St. John Passion," Handel's "Messiah," Beethoven's "Missa Solemnis" or Michelangelo's Pietà?

But let us be careful not to throw out the baby with the bath water! Secularism is not secularization, and not all that is not explicitly religious is evil. The transcendental reality can inspire us in other ways! A certain appreciation of art can come even to the atheist. And this is the point of departure for today's evangelization. The saints have marked history for 2,000 years -- some have developed diverse expressions of Christian spirituality, others safeguarded our biblical heritage, others developed fundamental ideas about law and values, and others have been the source for the continual rebirth which has marked European history and her cultural developments. It is our task to follow in their footsteps, revealing the truth about humanity to our fellow men and women, to open the way to the transcendental source of all values, so that

Europe

can once more return to her roots.

The Response of the Church: A New Evangelization of Culture

Evangelization doesn't stop with the past, but must pour into the next generation. To respond to this task the Pontifical Council for Culture encourages various initiatives to evangelize culture, including prayer, personal dialogue, Cultural Centers, especially theological institutes, the evangelization of desire, a renewed awareness of Christian anthropology, a strong presence in the public forum, the promotion of the values of the family and of life, good Christian formation, the "via pulchritudinis," evangelical use of Christian patrimony, use of the complementary languages of reason and feeling, as well as the promotion of pilgrimages and many connected issues.

The evangelization of culture aims at letting the Gospel penetrate the actual situation of the lives of the people of a given society. "Pastoral practice must undertake the task of shaping a Christian mentality in ordinary life" ("Ecclesia in Europa," No. 58). More than at convincing, such evangelization aims at preparing the ground and at enabling listening, a type of pre-evangelization. If the basic problem is indifference, the necessary task is to attract attention, to stir up the interest of the people." By identifying the footholds or points of anchorage for the proclamation of the Gospel and then acting on them, the evangelization of culture has some recurring themes, ideas, places, and methods, three of which I would like to present briefly here.

Christian Cultural Centers

The bridging of the gap between faith and culture, between the Gospel and everyday life, and between the proclamation of the Message and the indifference and practical atheism of many men and women of our time, has a privileged forum in Christian Cultural Centers, which I believe are at the forefront of evangelization. On the basis of the teaching of the magisterium, they permit a widespread and local approach developed and articulated at the ground level, the use and strengthening of local cultural traditions, and a response to the needs and expectations of particular communities. The very title "Christian cultural center" is to be understood in a broad sense, reflecting the rich diversity of cultural situations in different countries, where different interests and activities respond to the local needs in sync with the social and cultural traditions of each place.

The fourth edition of the International Directory of Catholic Cultural Centers, published by the Pontifical Council for Culture is meant to foster more frequent communication and more effective cooperation between such centers which are rich and varied in character, in terms of what they are called: cultural centers or circles, academies, university foundations, houses for cultural formation etc; their orientation: theological, scientific, educational, artistic. etc; the areas they cover: cultural trends, values, intercultural and interreligious dialogue, science, art. etc; and the activities undertaken: talks, debates, courses, seminars, publications, libraries, cultural events, exhibitions. etc.

For all their rich variety, these centers have one thing in common: the cultural activities they offer reflect their constant concern for the relationship between faith and cultures. This relationship is developed through dialogue, scientific research, personal formation and the promotion of a culture which faith inspires and makes fruitful, lively and dynamic. Catholic cultural centers, (and there is no reason why this should not apply to Orthodox or Christian cultural centers) are public forums, places where people meet and reflect, study and learn, exchange ideas and develop the dialogue between faith and cultures. In the broad context of globalization, they offer Catholics and anyone else interested in culture opportunities for useful contact and conversation about the world and history, religion, culture and science, all of which helps to discern those values that can throw new light on existence and give meaning to life.

Two other aspects of Christian Cultural Centers are worth bearing in mind: their networking and their publications. The Pontifical Council for Culture has already organized some fruitful meetings of such centers in different cultural regions: in

France

, in

Germany

, in

Spain

, in

Italy

, in the

Lebanon

, in

Romania

and further afield in

Mexico

,

Chile

and

Brazil

. This kind of pooling of experiences has been enriching for those taking part, who have come to know each other better, and it has boosted the activities of the centers by supplying fresh creative insights. Together with the Italian Episcopal Conference we have also produced a "Vademecum" to assist people to get into the mentality of Cultural Centers.

I would like to give three concrete examples of Christian Cultural Centers: First, the Centre de musique sacrée de Sainte-Anne-d'Auray in

France

. It was set up in 1996 to be a cultural crossroads between the state, the Church and artists. By formation in theology, liturgy and music, a cultural education is available to a wide public in order to protect France's musical and liturgical heritage, to hand on the faith, and to be creative. This task of saving cultural heritage clearly has at its heart the promotion and protection of fundamental values. For while Dostoevsky wrote that it is "beauty that will save the world," the director of the institute believes that the current task is to save beauty.

A second example lies in Further Educational Institutes. I think for example of the Center for Advanced Research into Faith and Culture, a research group. This is a further education institute which seeks to offer courses in the theological sciences, the space to pursue these studies to a highly advanced level, and to facilitate the meeting between gospel and culture. Alongside their publications, they organize conferences to make their research available to a wider public on themes of momentary importance for cultures. Their last conference, for example, was on Faith, Fear and Indifference. I would be most interested to hear about the activities of the Orthodox in this field: what are the Centers of Theological Education for Laypeople in

Russia

,

Belarus

and

Ukraine

doing to bridge the gap between faith and culture?

Third, The Library of the Spirit in

Moscow

. This Christian Cultural Center has for some 15 years been publishing in Russian works of Christian cultural interest which come from both Orthodox and Catholic traditions, in order to present to readers across the Russian Federation and beyond Christian convictions about man, and God, and to make available important works of spirituality and theology. Thanks to the support of His Eminence Metropolitan Filaret, President of the Synodal Theological Commission of the Russian Orthodox Church and also to assistance from the Catholic Church, this centre provides a space for Christianity to make its message known through the field of culture, with books, literary events, meetings, and a widespread distribution network, thereby promoting a Christian conscience across the very heart of society, and contributing to the creation of a society based on Love.

Monday, January 3, 2005

Psalm 42

I have no great insight to add to the discussion of tsunamis and theodicy just a short reflection on humanity's intimate and ongoing struggle with God and with our selves.  Psalm 42 from Morning Prayer this morning captures this struggle.  First, the desire and need for God.  The Psalmist sings:  "Like a deer that yearns for running streams, so my soul is yearning for you, my God.  My soul is thirsting for God, the God of my life; when can I enter and see the face of God?"  He thirsts but falls into near despair in the face of this present reality:  "My tears have become my bread, by night, by day, as I hear it said all the day long:  'Where is your God?'"  In his emptiness, the Psalmist remembers and pours out his soul, desiring (if only he had the grace) to "lead the rejoicing crowd into the house of God, amid cries of gladness and thanksgiving."  For the Psalmist, questioning and hope follow:  "Why are you cast down, my soul, why groan within me?  Hope in God; I will praise him still, my savior and my God."  In this Psalm an interior stuggle follows.  The Psalmist knows God's love, remembers it, but cannot feel it as "Deep is calling on deep, in the roar of the waters: your torrents and all your waves are swept over me."  And, in an act of profound intimacy, the Psalmist confronts God:  "I will say to God, my rock:  "Why have you forgotten me? Why do I go on mourning oppressed by the foe?"

Natural disasters like tsunamis, tornados, earthquakes, and hurricanes are much harder for me to fathom than human made disasters (given our fallen nature, free will and limited capacity), but I find comfort in the fact that our forbears even before the Incarnation (before the landlord moved in) struggled with these same questions and were on intimate enough terms with the Divine not to struggle alone.

Michael S.

Saturday, December 4, 2004

Culture Hollowed: American and European Differences

My intuitive reaction to Rick's post on the "Family in Europe" may be too simplistic or it may simply be wrong, but here goes.  American culture with its individualistic bent was largely fashioned by Protestants.  European culture (more predominant in parts of Europe) with its more communitarian bent was largely fashioned by Catholics.  As the Christian foundations of both cultures are destroyed (by both neglect and design), the ensuing structural decay will reflect the cultural remnants unique to each particular civilization.

Friday, November 26, 2004

A Day Without a Mexican

Continuing the immigrant/immigration theme, I'd like to recommend the newly released movie, "A Day Without a Mexican," which we watched last night.  The back of the Blockbuster DVD jacket describes the movie:  "The state of California is thrown into complete chaos after all of its Hispanic inhabitants mysteriously disappear!"

Immigration, the Constitution as interpreted by the Court, and Catholic Social Teaching

Our constitutional approach to aliens (non-citizens) is schizophrenic. 

In Graham v. Richardson, 403 U.S. 365, 372 (1971), the United States Supreme Court used strict scrutiny to strike down state laws that distinguished between legal aliens and citizens in the state’s welfare expenditures.  It held that “classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny.  Aliens as a class are a prime example of a ‘discrete and insular’ minority for whom such heightened judicial solicitude is appropriate.”

In Plyler v. Doe, 457 U.S. 202 (1982), the Supreme Court held (using an intermediate scrutiny standard) that a state could not discriminate against illegal alien children by denying them free public education.

But, in the Chinese Exclusion Case, 130 U.S. 581 (1889), the Court upheld the exclusion of Chan Chae Ping, a Chinese national who had lived in the United States for 12 years who left the country temporarily to return to China.  Before he left for China, he obtained a certificate from the United State government authorizing his return to the United States.  Unfortunately for him, as he was returning to the United States, Congress passed a law revoking the certificates authorizing return, and he was turned away.  The Court held:  if, therefore, the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion" is within the power of the government, even in times of peace.

Although decided 115 years ago, the Chinese Exclusion Case continues to have vitality and was cited as authority by the 10th Circuit earlier this year.  It created the plenary power doctrine, which basically stands for the proposition that our domestic constitutional norms are inapplicable in the immigration field.  In deciding who is admissible, excludable, and deportable from the United States, Congress can take into account race, religion, political affiliation, and gender in ways that would raise red flags if Congress attempted to do this in any other area.  And, because deportation is considered “civil” in nature and not “criminal,” the prohibition on ex post facto laws is inapplicable.

In a later posting, I’ll give an explanation of where our constitional framework for our alienage jurisprudence went wrong with some suggestions for how to get back on track.  I would also welcome comments from Chuck Roth, others working in immigration law, and anyone else.

Sunday, November 14, 2004

Culture Watch

From Zenit:

The Devil and the Deep Blue Sea
Consequences of De-Christianization

LONDON, NOV. 13, 2004 (Zenit.org).- Britain's Royal Navy stirred the waves last month when, for the first time, it gave official recognition to the practice of Satanism. According to an Oct. 24 report in the Telegraph, Chris Cranmer, a naval technician serving on the frigate Cumberland, is now allowed to perform Satanic rituals on board ship. He would also be able to have a funeral carried out by the Church of Satan if he were to be killed in action.

Cranmer is now petitioning the Ministry of Defense so that Satanism can be a registered religion in the armed forces. According to the Telegraph, the Church of Satan was founded in San Francisco in 1966 by Anton Szandor LaVey, author of "The Satanic Bible."

The article quoted a Royal Navy spokesman as saying that Cranmer's unconventional beliefs would not cause problems on board ship. "We are an equal-opportunities employer and we don't stop anybody from having their own religious values," he said.

In an Oct. 26 commentary in the Scotsman newspaper, Bruce Anderson said that naval authorities gave the go-ahead to Cranmer because they feared a lengthy legal action that could have ended up before the European Court of Human Rights at Strasbourg, costing millions of pounds. The government, he said, is at fault for "nervously allowing a rights-based legal culture to intrude upon the armed forces."

Sophie Masson, in a commentary published Oct. 27 in the Sydney Morning Herald, considered the religious implications. The Church of Satan, she noted, says that "we are our own gods." Moreover, they hold that all traditional sins are virtues, that altruism is a myth and that the Christian virtues are just hypocrisy. ...

Any thoughts from our religious freedom scholars?