As always, the annual Center for Ethics & Culture conference at Notre Dame provided plenty of opportunities for rich conversation on provocative topics, particularly in light of this year's secularism theme. Among the highlights:
Alasdair MacIntyre explained how secularism loses the capacity to adhere to absolute moral principles because everything is a matter for pragmatic judgment, and disagreement focuses on the question of whether the proffered justification for violating a principle is sufficiently compelling. MacIntyre used the deaths of 100,000 Iraqi civilians in the aftermath of the U.S. invasion as an example. When an audience member objected that MacIntyre was ignoring the 300,000 deaths caused by Saddam Hussein, MacIntyre noted that the nature of the objection underscored his point.
Christian Smith offered a guided tour through the sociological reality of secularism, as reflected in the rise of survey respondents who indicate no religious affiliation ("the nones"). Among the dozens of interesting facts he pointed out were the nones' lower scores on empathy and altruism compared to religious respondents. He believes, however, that a much more pressing threat to Christianity is from the predominance among churchgoers of what he calls "moralistic therapeutic deism."
John Breen provided an update on his project (with Lee Strang) about the history of Catholic legal education. This presentation focused on the mid-century critique of legal realism by Catholic legal theorists, a critique which did not gain a lot of traction or attention within the academy. Hopefully this broader Breen/Strang project will be the subject of many MoJ conversations in the months to come.
There was also a lovely passing of the torch from outgoing center director David Solomon to the incoming director, and good friend of MoJ, Carter Snead. The place is obviously in good hands.
Yesterday I had the privilege to speak to state legislators in Michigan, where an anti-Sharia bill has been introduced. Perhaps learning a lesson from the Oklahoma debacle -- a case in which the statute is explicitly discriminatory -- the Michigan bill is more stealthy, providing that a court or administrative agency "shall not enforce a foreign law if doing so would violate a right guaranteed by the constitution of this state or the United States." "Foreign law" is defined as "any law, legal code, or system of a jurisdiction" outside the United States. The bill has more than forty co-sponsors, but the primary proponent makes clear that it aims at Muslim litigants who "do not want to be under our law."
At first glance, I don't think this law would change anything. If the bill aims to ensure that American courts don’t enforce a foreign court’s order if the foreign procedures are not fundamentally fair or otherwise violate basic due process, I’m not sure why we need such a provision. American courts are already focused on that. And I’m not sure how concerns about Sharia law contribute to our understanding of this issue. If a contract is entered under duress or through coercion, or if a foreign court order is entered without a party having the chance to contest it, our courts won’t enforce the contract or the order, regardless of the source of the substantive norms embodied in the contract or order. The unenforceability has nothing to do with Sharia.
If the bill aims at preventing private parties from waiving constitutional rights when the source of the agreement's norms are found in a jurisdiction outside the United States, that sweeps very broadly, and is not just limited to contracts founded in Sharia. I don't know how it threatens the rule of law to permit religious believers to order their lives consistently with the tenets of their faith traditions. When bankruptcy courts apply canon law in determining property rights for a diocese, or when courts enforce arbitration agreements based on biblical principles pursuant to widely invoked rules of "Christian conciliation," or when couples invoke their faith as the basis for the terms of their prenuptial agreements, that raises very few eyebrows. In the dozens of states where anti-Sharia legislation is being proposed, we're erecting a double standard. No one is asking for a court to adopt the sort of penal code that is found in some Islamic countries; they are asking for space to live out their faith commitments. In most cases, these disputes crop up because Sharia provides the terms for the contract that comprises the litigants' marriage (in Islam, the contract does not precede a marriage; the contract is the marriage). The disputed terms usually pertain to the distribution of property upon marriage and in the event of divorce or the husband's death. Whether or not such contracts are enforceable should turn on whether they go beyond what would be tolerable in any other marital contract.
If we keep insisting that Sharia is the enemy of our legal system, Christians are treading on very thin ice. Americans are free to enter into contracts that reflect their own commitments to a host of causes, whether it's PETA, or the PTA, or NARAL. Religious believers should not be precluded from doing the same. I hope Catholics continue to speak out against clearly unjust laws like Oklahoma's, as well as the more subtle but wholly unnecessary versions cropping up around the country. Even if these versions don't actually change the way courts operate, their passage still sends a very troubling message to our Muslim friends and neighbors.
I think Robby is correct that views on cohabitation may break down along some of the same demographic lines as views on SSM. I should have been more precise, though, in explaining what I mean by noting the "fear-based terms" that I've observed in some (though by no means all) of my conversations about SSM with the 50+ crowd. Often the fear is focused not so much on SSM, but on gays and lesbians themselves. This distinguishes it from views on cohabitation, I think. I don't know anyone who fears the people who engage in the act of extramarital cohabitation, though I know plenty of folks (count me as one) who fear the consequences of widespread normalization of extramarital cohabitation. I do know folks -- and most of them are over 50 -- who fear the harmful effects that gays and lesbians themselves might have on their children or grandchildren, quite apart from SSM. That fear underlies part of the opposition to SSM. For younger generations, they are less likely to associate SSM with "homosexuals" as an ominous category, and more likely to associate SSM with specific friends that they have who happen to be homosexual. They are not afraid of their friends, and thus that component of the fear-based opposition evaporates. I think that's different than the dynamic with cohabitation.
There are rational arguments against SSM that have nothing to do with fear of gays and lesbians, and Robby, Maggie Gallagher, and others are making them. The primary challenge for SSM opponents, as I see it, is to separate one's opposition to SSM from one's views on gays and lesbians. For many voters, my guess is that, as the latter improves, the former tends to weaken.
In November 2012, we'll be voting in Minnesota on a constitutional amendment allowing marriage only between a man and a woman. Today's Star Tribune carries the results of a survey showing that the state's residents are evenly split on the question, but there are interesting generational, educational, and geographical divides:
Age 18-34: 33% favor the amendment
Age 65+: 70% favor the amendment
No college: 60% favor the amendment
College grad: 32% favor the amendment
Twin Cities metro: 40% favor the amendment
Rest of state: 59% favor the amendment
I'm not exactly sure what this means for the way the debate about SSM should unfold here or elsewhere. I would guess that part of the disparity is explained by a person's exposure to, and friendship with, gays and lesbians. In my experience, for example, older voters tend to speak in more fear-based terms when talking about SSM. For younger voters, the fear theme tends not to be as readily discernible. This does not mean that a campaign to persuade the 18-34 crowd to support the amendment cannot be effective; it just means the campaign needs to begin from a different premise than it would for older generations. My colleagues Mark Osler and Teresa Collett contributed to the debate here with a point/counterpoint in the Star Tribune.
Ryan Anderson, criticizing a new book by Peter Wehner and Arthur Brooks, calls out conservatives for not paying more sustained attention to the articulation of sound principles of social justice in a capitalist system. An excerpt:
When the godfather of neoconservatism, Irving Kristol, wrote Two Cheers for Capitalism, he intentionally held back from giving it a resounding three cheers. He knew there were downsides, and that conservatives had to be honest about these in order to address them adequately. But the conservative message about capitalism today glosses over these facts, proposes no principles of justice, and fails to engage—let alone persuade—our fellow citizens who worry about our economic order. Conservatives writing in defense of democratic capitalism need to spend less energy fighting off communism, and more energy developing a conservative vision of social justice, painting a picture of what a better capitalism could look like. If conservatives don’t, the only alternatives will be coming from the Left. And that would be an injustice.
Ron Colombo is intrigued by the new signs of life for "distributism." Should I join the seemingly merry band, or does the distributist "criticism of the market" reflect "a naivete regarding the state that almost defies belief coming from a serious Catholic?" I'm not sure I want to pitch a tent in lower Manhattan, but if the movement lets me get all Chestertonian and discuss weighty topics over a pint in a dark pub somewhere, sign me up.
Halloween is very big in our neighborhood -- tons of kids running around, most houses decorated, many families sitting out in their front yards enjoying some fellowship. A really festive, child-centered evening every year. Added to the mix last night was an organized, house-to-house fundraising effort by a whole group of NARAL/Pro-Choice America representatives. It was mind-boggling. A whole pack of young children, dressed up and laughing, holding their bags out for candy, and literally into their midst a grown-up walks up with a clipboard and asks for support to help defend abortion rights. At first I was offended, and then I decided that perhaps this was the best of all nights for them to be making their case to the public. They should be speaking from the midst of children, rather than from a brochure or conference podium -- it was a powerful reminder of what's at stake.
A student forwarded me a lovely essay on religious lawyering that was linked by Andrew Sullivan several days ago. Written by a lawyer named Jeremy Kessler, it begins with an eye-opening turn of phrase: "[T]here is something cartoonish about turning the black-letter law-book into a springboard toward the Ultimate." He examines the life and work of William Stringfellow, springboarding to the current "religious lawyering movement" that I and others on MoJ have written about. He concludes:
Though Stringfellow would have applauded this emphasis on the richness of human relationship, he might have questioned the relative ease with which some religious lawyers propose to negotiate the competing sovereignties of God, the state, and the marketplace. Stringfellow was anxious enough about the conflict between biblical and earthly advocacy when representing poor tenants. The religious lawyer’s search for God’s blessing in most any legal arena—whether corporate boardroom or prosecutor’s office—is probably a more liberal one than Stringfellow’s demanding Christ could allow.
Despite their differences, both Stringfellow’s biblical advocate and today’s religious lawyer come into the legal world ready to obey the Word. Their struggle to reconcile faith with worldly practice is one thing. The struggle to hear the Word to begin with is quite another. It would have been great if I could have gotten the major soul-searching out of the way before entering law school. Although a legal education can serve the young crusader well, it is better at inducing spiritual crises than resolving them.
I've wondered aloud about how Catholics should respond to OWS versus the Tea Party. One helpful snapshot for understanding the OWS "movement" is a short and (righteously) angry essay by my student, Phil Steger, that is posted over at my colleague Mark Osler's blog. Though Phil's analysis is a bit over the top (in my view) on some points, I think he captures the deep frustration that underlies the protests.
Ron Colombo has another post on the PCJP's note on the financial crisis. He includes a helpful summary of the note, along with this bottom line:
In its closing pages, the Note puts forth a series of policy suggestions - and these have grabbed headlines of late. Unfortunately, this is also where the wheels fall off.
It starts with the call for "a world political authority" to address the global problems of peacce, security, arms control, human rights, migration, the environment, and, of course, the global economy. This "Authority" ought to be vested with "structures and adequate, effective mechanisms equal to its mission and the expectations placed in it."
The Note then suggests the need to revisit the Bretton Woods agreement, the need for "a minimum, shared body of rules to manage the global financial market," an expansion of more nations into the G20, a central world bank, taxation on financial transactions, recapitization of banks with public funds, and segregation of "ordinary credit and Investment Banking."
The Note's drafters certainly don't suffer from a lack of ambition.
They do, however, suffer from a lack of serious engagement. Love them or hate them, the policy prescriptions are basically rattled off, with little thought or discussion. As such, when it comes to these prescriptions, the Note is not at all persuasive. Indeed, it doesn't even attempt to persuade!
So, if one wishes to critique the Note, there's little to actually engage with (at least when it comes to the policy prescriptions). No new or compelling arguments are put forth explaining why its proposals ought to be followed. It's almost as if the Note's authors believed these proposal were self-justifying.
Pretty strange in my humble opinion. And whether one's favorably disposed to the policy suggestions or not, this is sadly a lost opportunity. The PCJP could have made an authentic contribution to the debate. It did not. Instead, it merely endorsed a candidate - and attempted to dress its endorsement up as something more serious.
