In the wake of George Floyd’s killing and subsequent protests drawing attention to our nation’s scandalously wide racial disparities, some American Christians appear to have become convinced that we must rise to meet an urgent threat: Critical Race Theory. Last week, for example, Southern Baptist seminary presidents issued a joint statement condemning racism but affirming that “Critical Race Theory, Intersectionality and any version of Critical Theory is incompatible with the Baptist Faith & Message.” It’s hard to know precisely why the presidents felt compelled to disavow Critical Race Theory (CRT) in particular, though Jason Allen, president of the Midwestern Baptist Theological Seminary, explained that “Confusion abounds on [CRT], but one thing is clear: the closer you look into the history, advocates, and aims of Critical Race Theory the more troubling it becomes.” Dr. Allen is correct that confusion abounds, with vague accusations of Marxism at the core of many criticisms, so let’s take that closer look.
Richard Delgado and Jean Stefancic, two CRT pioneers, explain that the wide-ranging and loosely organized movement is united by five key propositions. First, racism is “ordinary, not aberrational,” and so it is difficult to root out apart from the most glaring examples (i.e., we can end lynching, but it’s much more difficult to end employment discrimination). Second, because racism can advance the material and psychological interests of white people, there is limited incentive to eradicate it. Third, race is a product of social thought, not biology, and societies racialize different people at different points in history. Fourth, no person has a single, unitary identity, and “everyone has potentially conflicting, overlapping identities, loyalties, and allegiances.” (This is intersectionality.) And finally, because of their different life experiences, people who are Black, Indian, Asian, or Latino/a may be able to communicate insights that white people are unlikely to know on their own.
A faithful Christian can disagree with one or more of these core tenets, but Christian orthodoxy does not compel disagreement with any of them. Are there particular arguments made by particular advocates who invoke CRT that are in tension with Christian beliefs? Yes, including arguments, for example, grounded in cynicism about the efficacy of free will or the possibility of objective truth. Occasionally statements are made implying that historically oppressed populations not only have important insights to offer, but a sort of moral superiority as a result of their oppression. However, suggestions that the entire school of thought holds zero educational value for Christians is unjustified.
Indeed, CRT offers insights that may take Christian teaching more seriously than many Christians do. Consider, for example, the contentious issue of systemic racism. If the Fall tainted only individual choices and left our human-created systems untouched, that would be a surprisingly weak – and unbiblical – understanding of Genesis 3’s far-reaching effects.
Moreover, some Christians have rooted their opposition to CRT in what amounts to a radical individualist worldview – i.e., “I didn’t engage in slavery or Jim Crow, so what does racism have to do with me?” The Bible is filled with stories of sin’s collective consequences extending across generations, and the Christian understanding of the human person is rooted in mutual dependence. Those truths are not lost on CRT.
Compare the Christian response to another school of legal thought that is arguably more influential than CRT: Law & Economics. Put simply, this movement has shown the extent to which the function of our common law system aligns with economic principles. These insights have helped us design legal rules that promote economic efficiency, which is, generally, a good thing. But when it comes to putting a price on a human life, for example, Christians will (and should) start to squirm. When Ford decided not to fix the Pinto’s susceptibility to rear-impact explosions because paying jury verdicts for the ensuing deaths would be less expensive, that decision is tough for Christians to defend given our commitment to human dignity.
I have not seen many joint statements from Christian leaders making sweeping condemnations of Law & Economics. Such a condemnation, in my view, would also be imprudent.
Here’s why: for Christians, no theory of society captures reality more fully than the person of Jesus Christ. Resting secure in that knowledge, though, does not mean that Christians have nothing to learn from human efforts to make sense of the world. Especially when our churches still meet during what Martin Luther King Jr. called “the most segregated hour in Christian America,” it is unfortunate that those who train pastors chose to condemn a school of thought that has emerged from the lived experiences of our black and brown brothers and sisters. We should be listening, learning, and discerning truth – even when the truth is incomplete. CRT is not a comprehensive Christian theory of the world, nor does it aim to be. It is also not a reason to panic.
In his important new book, What It Means to Be Human, Carter Snead critiques expressive individualism through the lens of our embodiment and mutual dependence. He focuses on issues of bioethics – abortion, assisted reproduction, and end-of-life concerns – and explains how “the virtues of acknowledged dependence” might be a corrective to the paradigm of the self-determining and self-sufficient individual.
Snead looks to parenthood as the most powerful example of practices that “draw one’s gaze from inside toward the outside,” or as Michael Sandel described parenthood, as a “school of humility.” Underscoring the “radical reorientation of one’s perspective as a parent,” Snead cites Steven Spielberg:
At the conclusion of his film Close Encounters of the Third Kind, Steven Spielberg’s protagonist leaves his family to join the aliens on their spacecraft to pursue his lifelong dream and obsession. In a documentary on the making of the film, Spielberg observed that he wrote this ending before he became a parent and “would never have made Close Encounters the way I made it in ’77, because I have a family that I would never leave.”
How does “acknowledged dependence” shape our understanding of the lawyer’s role? Do we approach clients as pre-parenthood Spielbergs? Under the traditional view, the lawyer serves the client’s legal interests and suspends her own moral judgment regarding the client’s underlying goals. Expressive individualism may find no stronger champion than Lord Brougham, for example, who famously remarked to the House of Lords in 1820 that an advocate “knows but one person in all the world, and that person is his client,” and that “to save that client by all means and expedients, and at all hazards and costs to other persons . . . is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others.”
Today there is no shortage of examples of lawyers defining their clients’ interests as though they are self-defining, self-sufficient, fully autonomous beings. From Enron’s counsel, to lawyers defending the Church from sexual abuse suits, to the Trump campaign’s lawyers lobbing wild accusations about conspiracies to steal the election, the profession could benefit from an immersion in the work of Sandel, Alasdair MacIntyre, Charles Taylor, and Snead.
Not that the work of translation hasn’t been going on. Tom Shaffer, most notably, spent decades bringing the insights of an authentic anthropology to legal ethics conversations, as has David Luban, among others. But it’s still an uphill climb. In public bioethics debates, we fear any curtailment of expressive individualism, and in legal ethics, that fear is magnified because the lawyer is the agent, not the principal. So we make assumptions about the client’s stance toward the broader world without ever unpacking those assumptions or inviting the client’s reflection on their substance. Perhaps the client will jump aboard the expressive individualism train wholeheartedly, in which case the attorney must either come along for the ride or resign. But it’s a conversation worth having.
Facing the fact of our mutual dependence matters well beyond our debates over bioethics, and Carter Snead has provided a very important nudge to reflect on the assumptions that shape legal practice.
The life of the mind has been an important part of my faith journey, and it grieves me to see how many Christians are susceptible to the wild conspiracy theories that are contributing to our growing inability to engage in rational debate. My response to Eric Metaxas and other purveyors of the latest tall tales is here. An excerpt:
Our minds are a gift from God. Like all good gifts, we are called to steward them wisely. As conspiracy theories infiltrate the church and compromise its witness, we can’t just roll our eyes as though we’re accommodating an embarrassing uncle who drops by for holiday dinners. The gospel speaks to the heart and the mind. If wild conspiracy theories find fertile ground among Christians, we shouldn’t just be scandalized; we should be motivated to reclaim the intellectual rigor of our faith.
I believe that the biggest threat we face as a nation is the growing political polarization that makes it very difficult to collaborate on the many pressing problems we face. One of the dimensions to this polarization is an overly simplistic perception that the Supreme Court is divided between “good” justices and “evil” justices, with those designations contingent solely on our political leanings. New rulings are weaponized by opposing camps and deployed in ways that lend further support to the good-versus-evil characterization.
With that preamble, I’ll offer an admittedly cursory, non-technical explanation of Wednesday night’s 5-to-4 Supreme Court ruling blocking enforcement of Governor Cuomo’s restrictions on attendance at religious services in New York. The majority’s analysis was not driven by an utter disregard of public health, and the dissent’s analysis was not driven by hostility toward religious liberty. There were two primary differences between the justices who joined the majority and those who wrote in dissent:
1) Timing: At the time of the ruling, the religious bodies objecting to the regulations were no longer subject to the rules that were the focus of their suits because the surrounding communities had shifted to less restrictive classifications based on COVID test positivity rates. The majority decided that this change did not make the case moot, as they could shift back to more restrictive classifications at any time. The dissenting justices believed that the Court should hold off on second-guessing public health authorities unless and until the conflict is real and pressing. (This is the reason that caused Chief Justice Roberts to dissent.)
2) Substance: Every justice agrees that, under the Constitution, the government cannot treat religious exercise worse than comparable secular activities. In the majority’s view, the fact that nearby liquor stores, acupuncture facilities, grocery stores, and bike shops could operate at full capacity while churches and synagogues faced restrictions suggests that Governor Cuomo’s order is constitutionally problematic. In the dissent’s view, the fact that lecture halls, concert venues, churches, and synagogues are all subject to the same occupancy restrictions suggests that religious exercise is not being disfavored. The justices disagree about the appropriate points of comparison.
When it comes to the operative background principles, there is much more consensus on the Court than most Americans would guess based on its portrayal in our political culture. To be sure, there are meaningful differences in justices’ views about how the Constitution should be interpreted. These differences matter. But each justice is committed to the rule of law and is doing their best to navigate very thorny issues.
The business model of the companies driving our economy, and the vote-boosting model of our elected officials, is based on drawing and keeping our attention, and polarization is a great engine for doing this. It is not healthy or helpful to take a clickbait approach to the rule of law – it’s not all a grand battle of good versus evil. We still have plenty to debate when it comes to Supreme Court rulings, but let’s be precise and particular when we disagree.
I don’t need to add my voice to the hundreds of experts who are explaining in detail why the Trump campaign’s claims of nationwide “election-stealing” fraud are demonstrably false and corrosive to democratic norms. I write to point out an additional dimension to the claims’ toxicity: they are direct and calculated assaults on the trust Americans place in their neighbors.
It is one thing to build conspiracies around George Soros, Bill Gates, or other distant figures. The election fraud conspiracy theory being trumpeted by the Trump campaign, though, is fundamentally about hard-working, civic-minded Americans in the communities we call home. As (conservative) Jim Geraghty explains in the (conservative) National Review:
[T]he contention of the Trump campaign’s lawyers is that the outcome of the 2020 presidential election was rigged by a conspiracy of multiple voting-machine-software companies, poll workers across the country, local and county election officials in multiple key states, various secretaries of state, state attorney generals, governors including Republicans, law enforcement at all levels, the Department of Homeland Security, and every judge who has ruled against them so far. Oh, and almost everyone in almost every form of media who covers elections, presumably including me.
Conspiracy theories focused on distant celebrities are nothing new – the belief that Nero set fire to Rome in order to further his political agenda is an early example. Today’s Q Anon claim that Tom Hanks leads a global pedophile ring may be laughable, but it has little impact on our day-to-day lives.
The Trump campaign’s conspiracy story is different. It seeks to sow mistrust in our local communities. The folks who have long earned our respect by getting up before dawn to help run polling sites are now implicated in a global scheme that encompasses Hugo Chavez and Antifa.
This should be especially troubling for Catholics, who -- in keeping with the premise of subsidiarity -- have long championed the empowerment of local communities as essential to our nation’s flourishing. If we believe that the common good is realized from the bottom up and not imposed top down, we need to be very careful stewards of the trust on which our civic life depends.
I am familiar with the court pleadings, and there has been nothing filed to support the outrageous conspiracy claims being made in press conferences and on social media. I’m sure that there were isolated instances of misconduct or mistake in this election, as there are in every national election. But that’s not what the Trump campaign is claiming. If the Obama campaign had made similar claims in 2008 or 2012, conservatives would have been outraged, and they would have rallied to defend the thousands of Americans whose honesty and integrity make our election system work. They would have correctly recognized that the stakes are much greater than the outcome of an election. Now is the time to speak up.
Yesterday Pope Francis published the third encyclical (i.e., a papal letter) of his pontificate, “Fratelli Tutti,” on the theme of “fraternity and social friendship.” He explains that, though he wrote it “from the Christian convictions that inspire and sustain me, I have sought to make this reflection an invitation to dialogue among all people of good will.” At a time when COVID, racial injustice, economic uncertainty, and growing political tribalism have strained our social ties, the letter could not be more timely. Several insights are of direct relevance to our work in legal education, including how we build and steward a concept of meaningful community:
Dialogue is difficult but essential: Pope Francis writes that dialogue “calls for perseverance; it entails moments of silence and suffering, yet it can patiently embrace the broader experience of individuals and peoples. . . . [when our conversations] revolve only around the latest data; they become merely horizontal and cumulative. We fail to keep our attention focused, to penetrate to the heart of matters, and to recognize what is essential to give meaning to our lives. Freedom thus becomes an illusion that we are peddled, easily confused with the ability to navigate the internet. The process of building fraternity, be it local or universal, can only be undertaken by spirits that are free and open to authentic encounters.”
The parable of the Good Samaritan reminds us to “shoulder the inevitable responsibilities of life as it is.” Faced with “so much pain and suffering, our only course is to imitate the Good Samaritan,” as to do otherwise “would make us either one of the robbers or one of those who walked by without showing compassion for the sufferings of the man on the roadside.” We must remember that “a community can be rebuilt by men and women who identify with the vulnerability of others, who reject the creation of a society of exclusion, and act instead as neighbours, lifting up and rehabilitating the fallen for the sake of the common good.”
We are all responsible for keeping real people at the center of our work: “Solidarity finds concrete expression in service, which can take a variety of forms in an effort to care for others. . . . In offering such service, individuals learn to ‘set aside their own wishes and desires, their pursuit of power, before the concrete gaze of those who are most vulnerable . . . . Service always looks to their faces, touches their flesh, senses their closeness and even, in some cases, ‘suffers’ that closeness and tries to help them. Service is never ideological, for we do not serve ideas, we serve people,’” [and] “the scandal of poverty cannot be addressed by promoting strategies of containment that only tranquilize the poor and render them tame and inoffensive.”
Our respect for the dignity of others must be unconditional: “At a time when various forms of fundamentalist intolerance are damaging relationships between individuals, groups and peoples, let us be committed to living and teaching the value of respect for others, a love capable of welcoming differences, and the priority of the dignity of every human being over his or her ideas, opinions, practices and even sins” despite the “forms of fanaticism, closedmindedness and social and cultural fragmentation [that] proliferate in present-day society.”
Do our ambitions distract us from the needs of others? Pope Francis puts it simply: “loving the most insignificant of human beings as a brother, as if there were no one else in the world but him, cannot be considered a waste of time.” We must realize “that what is important is not constantly achieving great results, since these are not always possible. . . . it is truly noble to place our hope in the hidden power of the seeds of goodness we sow, and thus to initiate processes whose fruits will be reaped by others. Good politics [and good legal education!] combines love with hope and with confidence in the reserves of goodness present in human hearts.”
Kindness, kindness, kindness: “Saint Paul describes kindness as a fruit of the Holy Spirit (Gal 5:22). He uses the Greek word chrestótes, which describes an attitude that is gentle, pleasant and supportive, not rude or coarse. Individuals who possess this quality help make other people’s lives more bearable, especially by sharing the weight of their problems, needs and fears. This way of treating others can take different forms: an act of kindness, a concern not to offend by word or deed, a readiness to alleviate their burdens. It involves ‘speaking words of comfort, strength, consolation and encouragement’ and not ‘words that demean, sadden, anger or show scorn.’ . . . Kindness frees us from the cruelty that at times infects human relationships, from the anxiety that prevents us from thinking of others, from the frantic flurry of activity that forgets that others also have a right to be happy. . . . Kindness ought to be cultivated; it is no superficial bourgeois virtue. Precisely because it entails esteem and respect for others, once kindness becomes a culture within society it transforms lifestyles, relationships and the ways ideas are discussed and compared. Kindness facilitates the quest for consensus; it opens new paths where hostility and conflict would burn all bridges.”
As lawyers and legal educators, what simple steps might we take to integrate the Pope’s reminders with the work we have before us? This year has been shaped powerfully by disappointment and loss. How could we reframe the experience of this year with a renewed “openness that allows us to acknowledge, appreciate and love each person, regardless of physical proximity?”
I've just posted a new paper, "How Distinctive Should Catholic Law Schools Be?," which is my contribution to the St. John's symposium exploring the forthcoming new book by John Breen and Lee Strang, "A Light Unseen: A History of Catholic Legal Education." From the abstract:
In what ways should a Catholic law school be distinctive? To what extent should Catholic and non-Catholic law schools share similar criteria for judging institutional success? Are there circumstances under which a preoccupation with distinctiveness might distract a Catholic law school from focusing on its mission? While Catholic law schools will approach these questions from a diversity of perspectives, we should be careful neither to ignore the importance of distinctiveness nor to equate worthy manifestations of Catholic identity with only those qualities that are not also exhibited by non-Catholic law schools.
The entire symposium was first-rate, though I'm pretty sure my paper was the only one to draw lessons from the artistic merits of Metallica versus Stryper.
In early 2004, I remember sitting in my office at St. John's and getting a call from Mark Sargent asking if I wanted to participate in a new blog that he and Rick Garnett were putting together. I was not entirely sure what a "blog" was, but as a junior law prof looking for any platform that would have me, I readily accepted his invitation. My primary objective in my early posts was to come across as knowledgeable enough about Catholic legal theory to belong on a blog dedicated to Catholic legal theory. As the years went by, I'm not sure my grasp of what we mean by "Catholic legal theory" became a whole lot clearer. My favorite post of the last fifteen years ("Catholic Legal Thought: Live at the Dubliner!"), though, reflects what is undoubtedly the central legacy of MoJ in my own life: relationships.
Since I composed that post ten years ago, law schools have gone through some tumultuous times, prompted by legitimate skepticism about the value proposition of legal education, causing us to focus on student outcomes to an extent not seen in many years, if ever. Does that mean that the broader Catholic legal theory project from which MoJ emerged has lost some energy? Perhaps, if measured by the number of conferences and colloquia dedicated to the field. But not if we take a broader view to ask how and why Catholic legal education matters - a question that can only be answered comprehensively and coherently with at least some resort to Catholic legal theory, as lived out in the context of academic and professional communities. What are we offering to prospective students and other stakeholders, and why should they care that we're Catholic? In that sense, MoJ has been a remarkable incubator of the type of conversations - and resulting relationships - that both aim at, and reflect, the heart of the project. Whether that continues in the form we've enjoyed for the past fifteen years or proceeds into new venues, the relationships must remain central to the work.
Lest we grow complacent in attributing the degrading of our political culture solely to Donald Trump, Hillary Clinton steps forward to remind us that the race to the bottom is readily susceptible to a bipartisan effort. In a recent interview, she explained, "You cannot be civil with a political party that wants to destroy what you stand for, what you care about. That's why I believe, if we are fortunate enough to win back the House and or the Senate, that's when civility can start again."
Her comments reflect a fundamental misunderstanding of civility's role in the pursuit of justice. As I explained earlier this week in an op-ed,
The means we employ in the political pursuit of our chosen values and priorities bear witness to how we view our fellow Americans.
As [Martin Luther King Jr.] reminded us during the tumult of the civil rights movement, “Hate is always tragic. It is as injurious to the hater as it is to the hated. It distorts the personality and scars the soul.”
That prison cells, firebombs and police dogs could not shake King from his commitment to civility speaks volumes about its importance to his work — and to ours.
Here is the lesson for Americans today who seek to defend their cherished values and priorities in the public square: Civility is not ultimately about manners; it’s about affirming our shared dignity and acknowledging — albeit sometimes through gritted teeth — that politics calls us to relationship.
When we allow our disagreements to obscure the dignity of our political opponents, we’re forgetting why King thought such battles were worth fighting in the first place.
This weekend I'm speaking at the Canadian Christian Legal Fellowship's national conference in Vancouver, and I'm struck by how little we hear in the US about current religious liberty battles north of the border. Some of the cases track with themes arising in American lawsuits, but others reflect a much more aggressive role for the state. For example, the Canadian government has added conditions to a popular and longstanding program funding summer jobs with a wide range of nonprofit organizations. An attestation attached to the program's application form this year required organizations to affirm that their "core mandate" respects a variety of rights, including "the values underlying the Charter of Rights and Freedoms," and specifically mentions reproductive rights. Not surprisingly, Catholic and other traditional Christian groups refused to sign, and they lost millions of dollars in funding that they had relied on for years. Litigation is pending.
