From the Orwellian "assisted death" in the headline to the national civil liberties group arguing for government power to force violations of religious conscience, this article from The Globe and Mail shows that there is nothing exceptionally American about the impulse to use the spending power of government to impose an orthodoxy of "assisted autonomy."
Sunday, March 6, 2016
Canada's Catholic hospitals should facilitate assisted suicide or lose government funding?
Friday, March 4, 2016
"Harvard’s role in the movement was in many ways not surprising."
A powerful theme in contemporary constitutional law is the idea of progress. Catholic legal theory both cautions and confounds when one considers what counts as progress in our constitutional order.
Here's one measure of how far we've progressed. A toxic brew of ideas about race, immigration, and crime once held by upper-class Harvard types is now standard fare served up by the presently leading candidate for the Republican nomination. (HT: How Appealing)
Sunday, February 21, 2016
Fr. Scalia's Homily: "We are gathered here because of one man."
As a follow-up to Rick's post, here is a transcript of Fr. Scalia's moving, mildly humorous, and theologically profound homily. As a teaser, here's the part right after the opening acknowledgments and expressions of gratitude:
We are gathered here because of one man. A man known personally to many of us, known only by reputation to even more. A man loved by many, scorned by others. A man known for great controversy, and for great compassion. That man, of course,
Sunday, February 14, 2016
A lesson from Justice Scalia on the most important event in human history
Ed Hartnett passes along this story about Justice Scalia that reveals much about him as a man of faith, as a student, and as a teacher:
He spoke at Seton Hall on our Charter Day -- essentially the school's birthday -- about his experience as a history student at Georgetown. He recalled a professor who asked him, "what was the most important event in history?" He answered with several significant events that he had learned about as a history major. The professor responded "no" to each answer. Finally, he gave up, and the professor provided the answer, "the Incarnation."
Professor Hartnett gets the effect of this just right: "The lesson stayed with him, and the story stayed with me."
Friday, January 29, 2016
Blanshard's Baker Library revelation at Dartmouth College
In gathering up some library books and removing old post-its from them, I (apparently, again) came across the following passage from Mark Massa's superb book, Anti-Catholicism in America: The Last Acceptable Prejudice. This passage identifies the moment at which the anti-Catholic crusader Paul Blanshard decided to devote his talents to a new kind of muckraking, with the Catholic Church as his target. Apparently this happened at my undergraduate alma mater, Dartmouth College, in a place where I spent a lot of time, the stacks of Baker Library. Curiously enough, the work that triggered Blanchard, Davis's Moral and Pastoral Theology, is the same work cited by Justice Alito in footnote 34 of his opinion for the Court in Hobby Lobby. At least Dartmouth had some good books in its library.
Here's Massa's account:
[T]he event that would reveal the path that brought Blanshard fame (of infamy) for several decades occurred while he was browsing in the Dartmouth College library. He came upon a four-volume work by the English Jesuit Henry Davis entitled Moral and Pastoral Theology. His eyes "bulged with astonishment" at the hypocrisy of sexually repressed celibate priests who "dared to prescribe the most detailed and viciously reactionary formulas" on sexuality, childbirth, and birth control. As Blanshard would later describe this accidental encounter, he stood dumbstruck in the Baker Library:
Did the public really know this amazing stuff? Why should I not take this volume and other documents of the Catholic underworld and do a deliberate muckraking job, using the techniques that Lincoln Steffens and other American muckrakers had used in exposing corporate and public graft in the United States? Why not? This was apparently one field not yet preempted by the muckrakers.
After a "short dip into the lower reaches of Catholic medical dogma," Blanshard went to Washington, D.C., and began "long research into Catholic documents which was to occupy much of my time and energy for several years." Blanshard's course on Catholic "dogma" took him to carrels in the Library of Congress and even into the belly of the Beast itself, the library of the Catholic University of America.
The fruits of this intensive study were the articles in the pages of The Nation. Blanshard never discovered anything in the complex webs of intellectual traditions that comprise Catholic theology, canon law, and philosophy that even nuanced the blinding insight he claimed to have had that fateful afternoon at Dartmouth College. Like the faith delivered to the saints of old, his original sense that the "viciously reactionary formulas" of the old Roman Church represented a looming threat to democratic culture in general and to the political traditions of the United States in particular never wavered.
Source: Mark Massa, S.J., Anti-Catholicism in America: The Last Acceptable Prejudice 65 (2005)
Thursday, January 14, 2016
An overlooked religious response to same-sex marriage: Justice Kennedy's Obergefell opinion
What is the most consequential religious response to same-sex marriage in recent times?
To ask this question is to place same-sex marriage as the status quo and to frame religious responses to it as reactionary. But what if the right answer to the opening question is Justice Kennedy's opinion for the Court in Obergefell v. Hodges itself?
Isn't it?
These were some of the thoughts that went into my panel remarks a week ago at the AALS Law & Religion Section.
I've spoken on a number of difficult and sensitive topics before a range of audiences. But participating in that panel had me more twisted up with concern than I can recall for any other panel or talk. So I decided to square up with the audience and identify just how awkward the situation was for me, and why.
I explained that I was there as an unbeliever, speaking to a room packed with true believers. Most in that audience truly believed that the Constitution of the United States forbids states from continuing with the husband/wife understanding of civil marriage. They truly believed that the Supreme Court of the United States appropriately ordered a redefinition of civil marriage in state law. They truly believed that federal law commands what the Supreme Court did.
And I did not. None of it.
That's awkward, isn't it? What could profitably be said between us, when we were so far apart on the main issue?
My basic tack was to argue that there was religion on both sides--that the object of their belief could itself be understood in religious terms. I gave several reasons for understanding Justice Kennedy's constitutionalization of same-sex marriage in Obergefell in religious terms. Among them:
1. The language of the opinion: The opinion speaks in terms of revelation, as I've previously argued.
2. The operative understanding of the Constitution: The Constitution of Obergefell is not an authoritative legal document with fixed, ascertainable legal content. Instead, it is "a charter protecting the right of all persons to enjoy liberty as we learn its meaning." Or, as the plurality opinion described the Constitution in Casey: "a covenant ... [with] written terms [that] embody ideas and aspirations that must survive more ages than one."
3. Justice Kennedy's professed self-understanding: In a 2005 interview with the Academy of Achievement, Justice Kennedy said that he thought people would be happiest if they could "find a profession ... where [they] manipulate symbols that have an intrinsic ethical content." That's what he think his job requires. Asked about the most important qualities for achievement in his field, Kennedy answered that it was important to understand that "the framers wanted you to shape the destiny of the country." And that's what he believes he is doing in his constitutional lawmaking.
4. The operative understanding of the judicial role: A case like Obergefell, Kennedy's opinion suggests, does not call for dry legal analysis and cool, detached reasoning. The good judge must respond to the petitioners' stories. The operative understanding of the judicial role is to respond to the petitioners' stories, and the petitioners' hopes, and the universal fear of loneliness (among other things), by enforcing the central meaning of a fundamental right that is now manifest in our basic charter.
5. The social/political/cultural response: "Love wins" is not a typical response to the output of constitutional litigation. Yet people have invoked all of the theological virtues (faith, hope, and love), in describing the opinion. The White House lit up in a rainbow. President Obama described the decision as delivering "justice like a thunderbolt." People are using the opinion as a type of scripture for their marriage ceremonies.
The point of this exercise was not simply, or even primarily, to undermine the legal authority of Obergefell. It is law of a sort, just as any other erroneous Supreme Court decision that has not been overruled is law of a sort. The real point is that Obergefell as religious response does not enable the same type of reasoned disagreement that more typically legal opinions generate. If one does not accept Justice Kennedy's revelation, as I do not, there's not that much to talk about as lawyers. Which is unfortunate. Personal testimonies and conversion certainly have their place in human experience. But these are not the sort of thing that make for good constitutional law.
Tuesday, January 5, 2016
"Kermit Gosnell, Planned Parenthood, and severability doctrine – A fresh look at Whole Woman’s Health v. Cole"
SCOTUSBlog just posted my contribution to their symposium on the Supreme Court's abortion case from Texas: "Kermit Gosnell, Planned Parenthood, and severability doctrine -- A fresh look at Whole Woman's Health v. Cole."
I explore a few important and underappreciated aspects of the case. General-interest readers are likely to find the first two points (about Kermit Gosnell and Planned Parenthood) more interesting, while those curious about details of legal analysis should find the severability discussion worth perusing.
Thursday, December 31, 2015
Three articles of interest at the Stanford Law & Policy Review (Cover, DeGirolami, & Walsh)
The current volume of the Stanford Law & Policy Review contains several law and religion articles. While all may be of interest to MOJ readers, three may be of particular interest. Here are the titles and a brief description from the SLPR webpage.
Constitutional Contraction: Religion and the Roberts Court
Marc O. DeGirolami, Professor of Law & Associate Dean for Faculty Scholarship, St. John's University
This Article argues that the most salient feature to emerge in the first decade of the Roberts Court's law and religion jurisprudence is the contraction of the Constitutional Law of religious freedom.
26 Stan. L. & Pol'y Rev. 385 (2015)Addressing Three Problems in Commentary on Catholics at the Supreme Court by Reference to Three Decades of Catholic Bishops' Amicus Briefs
Kevin C. Walsh Professor of Law, University of Richmond School of Law
Much commentary about Catholic Justices serving on the Supreme Court suffers from various shortcomings. In identifying and countering these shortcomings, this Article assesses the votes of the Justices - Catholic and non-Catholic alike - in the full set of cases form the Rehnquist Court and the Roberts Court (through June 2014) in which the United States Conference of Catholic Bishops filed an amicus curiae brief.
26 Stan.L.& Pol'y Rev. 411 (2015)Archetypes of Faith: How Americans See, and Believe in, Their Constitution
Aliza Plener Cover, Associate Professor, University of Idaho College of Law
This Article offers a new framework to illuminate how American faith in the Constitution is sustained over time. It builds upon the evocative Passover story of the Four Sons—one of whom is wise, one wicked, one simple, and one who does not know how to ask—and argues that these archetypes resonate deeply in the constitutional context.
26 Stan.L.& Pol'y Rev. 555 (2015)
I nominate my article for the prize of most unwieldy title, Marc's for most legally insightful, and Cover's for most culturally insightful.
Saturday, December 26, 2015
Eulogy for Mary W. Marshall during a Seemingly More Vertical Christmas
The holidays can be hard as well as joyful.
Horizontal celebrations of Christmas connectedness remind us of the vertical dimensions of human existence.
We can even occasionally forget that Christmas is only the second-most vertical of Christian holidays. But this forgetfulness is temporary. On reflection, horizontal and vertical fuse as our horizon extends backwards and forwards.
We feel the loss of loved ones as we observe children immersed in the present. We treasure what their future promises both them and us ... all children of a loving God. And we project ourselves into their presentness as we remember the past.
Christian faith, hope, and love converge.
* * *
I've been thinking lately about John Marshall's eulogy for his wife, Polly. I'd read it multiple times before it occurred to me to wonder who was his audience and why he wrote it. I'm still not sure. But I can report that it was found together with his will. The manuscript somehow came into the possession of a granddaughter. It is a beautiful tribute from a grieving man, and very much worth sharing.
Tuesday, December 22, 2015
"Brooklyn 9.6 light-years" (Lost in the Cosmos)
I've blogged a bit lately about Walker Percy and recently came across this passage from his book, Lost in the Cosmos: The Last Self-Help Book, which I thought I would share:
“Thought Experiment: You are a native of New York City, you live in New York, work in New York, travel about the city with no particular emotion except a mild boredom, unease, exasperation, and dislike especially for, say, Times Square and Brooklyn, and a longing for a Connecticut farmhouse. Later you become an astronaut and wander in space for years. You land on a strange, unexplored (you think) planet. There you find a road sign with an arrow, erected by a previous astronaut in the manner of GIs in World War II: 'Brooklyn 9.6 light-years.' Explain your emotion.”
― Walker Percy, Lost in the Cosmos: The Last Self-Help Book
Recent Posts
Categories
Monthly Archive
StatCounter
PageViews
Since February 19, 2008
