Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Monday, October 22, 2018

Recalling the legacy of John Saint John Paul II

Here's a post I did, the day after Blessed Pope John Paul II's death, back in April of 2005:

I'm sure that many of us are reflecting on the effect that the Holy Father had on our faith and lives, and thanking God for the gift of his ministry and example.  It also makes sense, here on MOJ, for us to consider what the Pope's work and thought might mean for law and legal theory.  A few thoughts:

First, many of the Pope's writings focus on the importance of culture as the arena in which human persons live, thrive, and search for truth.  His was not a reductionist Christianity -- one in which the choices and hopes of persons drop out of the analysis, and are replaced merely by one "dialectic" or another. Nor is Christianity merely a matter of a rightly ordered interior life.  We are precious and particular, bearing the "weight of glory," but also social, relational, political -- and cultural.  And, he recognized, law both shapes and is shaped by culture.

Second, the Pope returned again and again to the theme of freedom.  Certainly, for lawyers -- and particularly for lawyers living and working in our constitutional democracy -- questions about the extent to which law can and should liberate (and, perhaps, liberate-by-restraining?) are appropriately on the front burner.  It's fair to say that John Paul II proposed an understanding of freedom -- and of its connection with (T)ruth -- that contrasts instructively with the more libertarian, self-centered understanding that seems ascendant in our law (particularly our constitutional law) today.

Third, I imagine we will be working out for decades the implications of the Pope's proposal that the God-given dignity of the human person, and the norm of love, richly understood, should occupy center-stage in our conversations about morality -- rather than utilitarian calculations, historical movements, or supposed categorical imperatives.  This proposal seems particularly powerful when it comes to the matter of religious freedom.

Finally, there is the (perhaps, at first) surprising fact that, at the end of the 20th Century, it was a mystical Pope who "stepped up" and reminded a world that had been distracted, or perhaps chastened, by reason's failures, and had embraced a excessively modest, post-modern skepticism, of the dignity and proper ends (without overlooking the limits) of reason.

There's a lot more to say, of course.  I would, for what it's worth, encourage any MOJ readers who work with or advise law journals to consider commissioning essays, or even symposia, on John Paul II's jurisprudential legacy.

October 22, 2018 in Garnett, Rick | Permalink

Sunday, October 21, 2018

Cert Petition Filed in Religious Accommodation Case

A cert petition has been filed in Patterson v. Walgreen Co., a potentially important case under the religious-accommodation provision, section 701(j), of Title VII. And St. Thomas Law's Religious Liberty Appellate Clinic, which I supervise, has filed an amicus brief on behalf of Christian and Muslim organizations supporting the petition.

Patterson, a trainer for workers on Walgreen's phone-assistance line, was fired after he was unable to do an emergency training session on Saturday, his Sabbath (he is Seventh-day Adventist). But his unavailability on that occasion caused no harmful consequences: the training session went forward the following Monday and Walgreen's met the schedule it had articulated for the new phone-call policies. Instead, Walgreen's articulated that it must fire Patterson because this one-off situation would start recurring more regularly in the future, since its other trainer (who had swapped shifts with Patterson in the past) was going to move to a different company because Walgreen's was planning to sell that division in a sale to take place several months down the line. As a result, Patterson was fired at that moment based on a projected set of circumstances beginning nine months later.

The cert petition argues for review on the ground, among others, that the circuits are split on whether the employer may use such speculative future harms to meet its burden of justifying a refusal of accommodation: i.e. showing the accommodation would cause "undue hardship [to its] business." More broadly, while the accommodation provision has sometimes provided protection for employees' religiously-based dress and grooming,  it's been ineffective at protecting varying Sabbath observances because the Supreme Court has interpreted the burden of showing "undue hardship" to require only a showing of a "more than de minimis harm." TWA v. Hardison, 432 U.S. 63 (1977). As the third question presented, the cert petition calls for reconsidering Hardison's interpretation.

Our amicus brief for Christians and Muslims explains how "[a]llowing employers to rely on predicted future events creates at least three problems that undermine the effectiveness of the [accommodation] provision":

First, it allows employers to fire or otherwise adversely affect employees now based on events that might never occur—events that might never necessitate the firing. Second, reliance on future, hypothetical events makes it much more difficult to identify specific accommodations that might be available at the time the conflict arises. Third, reliance on speculative or hypothetical harms relieves the employer of the duty to search for reasonable accommodation—and at the worst, may incentivize employers to dream up scenarios of future hardship.

In addition, we support the petition's argument that the Hardison interpretation of "undue hardship" should be reconsidered, based on several grounds involving the statute's text and purpose:

      The ordinary meaning of “undue hardship” at the time the accommodation provision was enacted (1972) ...  is irreconcilable with a standard of mere “de minimis” cost....

      [T]he premise of the de minimis standard has been undercut by [the] Court’s recent decision in EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015) ... [which] makes clear [unlike Hardison] that [the accommodation provision] requires protection against the effects of a religion-neutral employer policy....

      A weak interpretation of [the] accommodation provision is particularly harmful to religious minorities, who are particularly likely to come in conflict with formally neutral employer policies reflecting the majority’s norms.

Aaron Bostrom, class of 2020, did an excellent job drafting significant portions of the amicus brief.

October 21, 2018 in Berg, Thomas, Current Affairs | Permalink

Thursday, October 11, 2018

Civility and the pursuit of justice

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.

You can read the whole thing here.

October 11, 2018 in Vischer, Rob | Permalink

Sunday, October 7, 2018

"China's Crackdown on Christianity"

Story here.  Very troubling.  A bit:

China’s crackdown on religion has taken a significant turn over the last two months, reaching a sustained intensity not seen since the Cultural Revolution. Outside the Three-Self Patriotic Movement churches—the state-sanctioned Christian churches—Christians have been facing steadily increasing pressure for the last 10 years. In 2017, the crosses of hundreds of churches were removed in Zhejiang Province. Cameras and other monitoring devices were also installed in churches throughout the province.

The situation is not isolated to Christians. Authorities in the Xinjiang Uighur Autonomous Region have been working to develop and implement a massive electronic surveillance system straight out of Nineteen Eighty-Four, including facial and iris recognition, speech recognition software, and even DNA sampling. Chinese authorities have also instituted a reeducation program, detaining Uighurs in “reeducation camps” and even luring Uighur students studying abroad to return to China under false pretenses, only to be detained.

October 7, 2018 in Garnett, Rick | Permalink

Some G.K. Chesterton for today . . .

Re-read "Lepanto," and thank Don Juan (and the Holy Rosary!).

October 7, 2018 in Garnett, Rick | Permalink

Our Lady, the Holy Rosary, and Lepanto

Lepanto

October 7, 2018 in Garnett, Rick | Permalink

Friday, October 5, 2018

 
 
Remembering Rev. Robert J. Araujo, S.J.:
Priest, Lawyer, and Scholar
 
 
Thursday, November 8, 2018
5:30 p.m.
 
Loyola University Chicago School of Law
Power Rogers & Smith Ceremonial Courtroom, 10th Floor
25 E. Pearson Street, Chicago
 
Rev. Robert J. Araujo, S.J. was a beloved member of the School of Law faculty and the inaugural holder of the John Courtney Murray, S.J. University Professorship. He was a dedicated teacher, a devoted priest, and a good friend to many at Loyola. 
 
Father Araujo received both his BA and his JD from Georgetown University. He later continued his legal studies at Columbia University where he received both an LLM and an SJD.  He also earned degrees from the Weston Jesuit School of Theology (MDiv and STL) and Oxford University (BCL). An accomplished scholar, Father Araujo was the author of several books and numerous articles on natural law philosophy, statutory interpretation, international law, and Jesuit education.
 

In addition to holding various teaching positions at Loyola University Chicago, Gonzaga University, St. Louis University, Fordham University, and Boston College, he also served as Permanent Observer and Attaché and Legal Observer for the Holy See to the United Nations.

 

Father Araujo passed away
in October 2015. To honor his memory, a number of his friends and former colleagues prepared a collection of essays that have now been published as a book, Priests, Lawyers, and Scholars (Franciscan Univ. Press 2018). 

Please join us for a panel discussion to celebrate Father Araujo's life and the publication of the book.  

Panelists
Ronald J. Rychlak, Jamie L. Whitten Chair of Law and Government and Professor of Law, University of Mississippi

Elizabeth Schiltz, Co-Director of the Murphy Institute for Catholic Thought, Law and Public Policy, Herrick Professor of Law and Thomas J. Abood Research Scholar,  University of St. Thomas

David DeWolf, Professor Emeritus, Gonzaga University School of Law

Stefanus Hendrianto, S.J., Society of Jesus (West), book contributor and editor

A reception will follow the discussion. The event is free and open to the public.  
Registration is requested.
 
 
RSVP
 

October 5, 2018 | Permalink

Sunday, September 30, 2018

"(Communal) Life, (Religious) Liberty, and Property"

I highly recommend Prof. John Infranca's paper.  It's been available on SSRN for a bit, but I neglected to post about it on MOJ.  Here's the abstract: 

Property rights and religious liberty seem to share little in common. Yet surprisingly similar claims have long been made on their behalf, including bold assertions that each of these two rights uniquely limits the power of the state and serves as the foundation for other rights. This Article reframes the conception of property rights and religious liberty as foundational by foregrounding communitarian aspects of each right. Property and religious freedom are a foundation for other rights, but in a different manner than traditional accounts suggest. It is not the individual exercise of these rights that provides a foundation for other rights, but rather the complementary roles these rights play in the formation of normative communities that, in turn, serve as counterweights to the state.

This Article makes three distinct contributions to existing legal literature. First, it reveals the significant similarities in historical and theoretical conceptions of the foundational status of these two rights. Second, it integrates the developing scholarly literature on the communal and institutional nature of these two rights. Third, it builds upon this literature to contend that the right to property and religious freedom can indeed provide important foundations for rights more generally, but only if we sufficiently protect and nurture, through law, the communities and institutions upon which these rights depend. The Article concludes by suggesting new approaches to assessing a diverse set of contemporary legal disputes: religious communities seeking to locate in the face of local government opposition, Native American communities challenging government actions on sacred lands, and Sanctuary churches opposing immigration enforcement by sheltering individuals on their property.

I'll confess to having been feeling a bit "burned out" on law-and-religion scholarship, as so much of it recently has seemed trapped in the third-party harms / "new Lochnerism" / religious freedom v. antidiscrimination track.  Infranca's paper was really refreshing.  Check it out!

September 30, 2018 in Garnett, Rick | Permalink

Saturday, September 29, 2018

Summer jobs and free speech

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.

September 29, 2018 in Vischer, Rob | Permalink

Thursday, September 27, 2018

Correcting a point in David Henderson's essay at Public Discourse

David Henderson has an interesting essay up at Public Discourse today. It is well worth reading.

https://www.thepublicdiscourse.com/2018/09/22543/

I need to correct Mr. Henderson on one point.  He says:

"[Robert] George’s defense of Fr. [James] Martin lands predominantly on Fr. Martin’s willingness to verbally assent to Church teaching and not on the substance of Fr. Martin’s argument, which remains unaddressed. Several substantive points—including Fr. Martin’s promotion of “Pride” events, his ongoing support of New Ways Ministry and Out at St. Paul’s, and his insistence that the Church adopt LGBT+ nomenclature—do make an appearance at the end of George’s article, but are treated only as minor points of ongoing disagreement. But these issues are not so inconsequential. Taken together, they represent a single critical issue that has yet to be resolved: Fr. Martin’s continued affirmation of sexual orientation as a valid basis of personal identity."

Henderson is absolutely right that the issues he mentioned are not inconsequential. But I didn't say or imply or in any way suggest that they were inconsequential. In fact, the reverse is true. I made a point of highlighting their importance. In the very essay of mine to which Henderson is referring I say, speaking of areas of disagreement between Fr. Martin and myself:

"So where do we disagree? Mainly, I think, on whether same-sex attraction (or other forms of feeling related to sexuality, such as the dysphoria or dysmorphia people have in mind when they use the term “transgender”) is a valid basis for establishing one’s identity, and whether we ought to recognize and affirm identity built around same-sex attraction (or those other forms of feeling). Fr. Martin believes we should. I believe we shouldn’t. This is a deep, multidimensional, and important debate. The right answer will determine, for example, what sort of language we ought to use (“same-sex attracted” vs. “LGBT+”) and whether we ought to affirm celebrations of certain forms of “identity” such as those celebrated in “Pride” parades and other events."

I said--indeed, I have repeatedly stressed--the critical importance of these issues to the pastoral practice of the Church. It is not at all clear to me how Mr. Henderson could have read the words "this is a deep, multidimensional, and important debate," or anything else I have said about the matter in the essay and elsewhere, and concluded that I regard the issues as being merely "minor points of disagreement" or "inconsequential." 

What's more, again in the article to which Henderson refers, I called on Fr. Martin (as I have again since) to refrain from endorsing putatively Catholic ministries that reject the Church's teachings on sexual morality and marriage. Here is what I said:


"I would appeal to Fr. Martin to reconsider his support, which has been enthusiastic and vocal, for organizations such as New Ways Ministry and Out at St. Paul’s—organizations that unambiguously contradict and seek to undermine the Church’s teachings on marriage and sexual morality. His support for these organizations—motivated by his laudable desire to reach out in a welcoming spirit to those whom they purport to serve—leads people to wonder whether he is being honest in saying that he does not himself reject the Church’s teachings. New Ways Ministry has twice been severely rebuked by the US Conference of Catholic Bishops, and Out at St. Paul’s has explicitly claimed that Pope Francis is “wrong” to reaffirm the Church’s teaching on marriage as the conjugal union of husband and wife. Fr. Martin stands with the Pope and the Church, as I do. But that cannot be done consistently with an endorsement of Out at St. Paul’s."

September 27, 2018 | Permalink

Wednesday, September 26, 2018

New release this month - Mind, Heart, and Soul: Intellectuals and the Path to Rome

Robert George and RJ Snell have edited a book of interviews, set for release by TAN publishers on October 31st, entitled, "Mind, Heart, and Soul: Intellectuals and the Path to Rome." The volume includes the conversion stories of such luminaries as Bishop James D. Conley, Sister Prudence Allen, Adrian Vermeule, Fr. Thomas Joseph White, and Hadley Arkes. Honored to have my own story included too.

From the inside flap: 

In a series of fascinating interviews, a cradle Catholic (Robert P. George) and an adult convert (R. J. Snell), offer the stories of sixteen converts, each a public intellectual or leading voice in their respective fields, and each making a significant contribution to the life of the Church.

Mind, Heart, and Soul is a Surprised by Truth for a new generation. It will reinvigorate the faith of Catholics and answer questions or address hurdles those discerning entering the Church may have…by people have had the same questions and the same road.
 
While some of the converts are well-known, their stories are not. Here they speak for themselves, providing the reasons for belief that prompted these accomplished men and women to embrace the ancient faith.
 
Included are interviews with a bishop, a leading theologian and priest, a member of the International Theological Commission, a former megachurch pastor, a prominent pro-life scholar, professors from Harvard and other universities, as well as journalists and writers, novelists and scholars. Each are interviewed by another leading scholar, many of whom are themselves converts and familiar with the hesitations, anxieties, discoveries, and hopes of those who discover the Faith. 
 
These conversion stories remind us that the Catholic Church retains her vitality, able to provide answers and reasons for hope to new generations of believers, always sustained by the Holy Spirit. It is all too-easy to become discouraged in our day and age, but God never fails to call people to Himself, as evidenced by these remarkable stories.

September 26, 2018 in Bachiochi, Erika | Permalink

Upcoming at Harvard: Peter Berkowitz on Mill and Education, Sr. Mary Madeline on the Wisdom of St. Catherine, and Justice Gorsuch on Christianity and the Common Good

Some exciting upcoming events at Harvard University, aptly responsive to current crises in academia, the Church, and our nation.

First, the Abigail Adams Institute's Third Annual Lecture will feature Peter Berkowitz next Thursday afternoon on "John Stuart Mill's Liberal Education." From the announcement: 

It is increasingly rare for colleges and universities to explain to students the purpose, structure, and content of liberal education, let alone provide one. John Stuart Mill's writings on liberty of thought and discussion, Socratic inquiry, and the aims and substance of liberal education provide an excellent introduction to the subject and illuminate the importance of the reform of higher education to liberal democracy. 

That same evening, the Thomistic Institute will host Sr. Mary Madeline Todd on "The Wisdom of St. Catherine in Times of Crisis." Sr. Mary Madeline is a Dominican Sister of Saint Cecilia Congregation who serves as Assistant Professor of Theology at Aquinas College in Nashville.

Finally, on October 19th and 20th, the Thomistic Institute will host a conference at Harvard Law School on "Christianity and the Common Good." Justice Gorsuch will keynote the event on Friday afternoon, followed by a full day of presentations on Saturday. Register here.

Speakers and panelists include the following:  Prof. Gerard Wegemer (University of Dallas), Prof. J. Budziszewski (University of Texas, Austin), Prof. Gladden Pappin (University of Dallas) Prof. Sarah Byers (Boston College), Fr. Dominic Legge, OP (Pontifical Faculty of the Immaculate Conception and the Thomistic Institute), Prof. Jacqueline Rivers (Harvard University) and Prof. Adrian Vermeule (Harvard Law School). 

September 26, 2018 in Bachiochi, Erika | Permalink

Saturday, September 22, 2018

On the importance of "Social Infrastructure"

I enjoyed this piece in The Atlantic, on the importance and vulnerability of America's "social infrastructure."  Here's a taste:

Social infrastructure is not “social capital”— the concept commonly used to measure people’s relationships and networks—but the physical places that allow bonds to develop. When social infrastructure is robust, it fosters contact, mutual support, and collaboration among friends and neighbors; when degraded, it inhibits social activity, leaving families and individuals to fend for themselves. People forge ties in places that have healthy social infrastructures—not necessarily because they set out to build community, but because when people engage in sustained, recurrent interaction, particularly while doing things they enjoy, relationships—even across ethnic or political lines—inevitably grow.

The author's focus is on "physical places."  So, when he talks about churches, it is in terms of their being places where people (physically) gather, etc.:  "Nonprofit organizations, including churches and civic associations, act as social infrastructure when they have an established physical space where people can assemble, as do regularly scheduled markets for food, clothing, and other consumer goods."  This is fine, so far as it goes, but in some of my own work, I've tried to explore the "infrastructural" role that churches play as (quoting Paul Horwitz) "First Amendment Institutions."  Take a look, here, here, and here.

September 22, 2018 in Garnett, Rick | Permalink | Comments (0)

Weigel on the "China-Vatican Deal?"

For a different "take" than the one by Adrian Vermeule and Gladden Pappin, which I posted the other day ("China and the Vatican:  Principles for the Rationally Ignorant Catholic"), see this piece, by George Weigel.  Weigel contends, among other things, that the "deal" being discussed would represent a deeply regrettable failure to learn lessons from the failure of the 1933 Reichskonkordat and would violate the Church's law which states that "no rights or privileges of election, appointment, presentation, or designation of bishops are conceded to civil authorities."

September 22, 2018 in Garnett, Rick | Permalink

Thursday, September 20, 2018

On Masterpiece--and Romer--for Cato SCT Review

I have an essay (available here) in the new Cato Supreme Court Review (the issue reviewing the 2017-18 term), entitled "Masterpiece Cakeshop: A Romer for Religious Objectors?" It explores the idea that Masterpiece was written--for the moment--as a narrow decision, based on official decision-makers' hostility in the particular case rather than on a broad assertion of religious objectors' free exercise or free speech rights, and in that sense is similar to Romer v. Evans (1996), the first gay-rights ruling. Romer struck down Colorado's Amendment 2 on the ground that it reflected animus toward gays and lesbians; the Court thus avoided (and did for almost 20 years) saying anything about heightened scrutiny for gay-rights claims.

From the abstract:

This essay examines Masterpiece and the unresolved religious-liberty questions through the lens of the similarities with Romer (and potentially with the later, more-expansive gay-rights rulings). Part I describes the resemblances between the two rulings, among other things that in both, animus or hostility serves as a “minimalist” holding that avoided committing to broad implications for future cases. But that modesty comes with a cost: To find animus, the Court must denounce the decision-makers in the immediate case as especially unjustified, even malicious, and that conclusion can cause equal or greater anger compared with broader holdings, such as declaring a suspect classification or fundamental right. In the final parallel with Romer, I sketch how the finding of unequal, hostile treatment in Masterpiece might provide the basis for further protection of religious traditionalists’ right to decline to facilitate same-sex marriages, at least in an appropriately limited set of circumstances. [E.g. solidifying Masterpiece's holding that when the state allows social liberals to refuse to provide goods or services with messages that offend against their conscience, it must also allow religious conservatives to refuse in analogous circumstances. And perhaps future rulings adopting more religion-protective readings of Employment Division v. Smith--TB]

       I then turn to general parallels between gay-rights and religious-freedom claims—parallels that call for sympathizing with and protecting both sides. Those parallels depend less on the improper motives or attitudes (animus/hostility) of the regulators, and more on the seriousness of the interests and predicaments of those harmed by government action (same-sex couples denied marriage rights, religious objectors penalized for following their beliefs). Developing sympathy for their respective predicaments, I argue, is more likely to calm our society’s serious problem of negative polarization—while condemning others for animus is more likely to aggravate such polarization. That in turn, I suggest, makes an argument for relying on heightened-scrutiny rationales in these cases, rather than findings of animus or hostility.

September 20, 2018 in Berg, Thomas, Current Affairs | Permalink

China and the Vatican: Principles for the Rationally Ignorant Catholic

The following post was co-authored by our own Adrian Vermeule and Prof. Gladden Pappin (Univ. of Dallas):

China and the Vatican: Principles for the Rationally Ignorant Catholic 

Gladden J. Pappin and Adrian Vermeule 

There is news that the Vatican is on the verge of finalizing an agreement with the government of the People’s Republic of China, restoring official relations that were severed in 1951. The terms are as yet unclear, but the reports indicate that, in broad outline: the PRC government will recognize the Holy Father as the head of all Chinese Catholics; bishops will be chosen through a joint approval process, in which the Chinese government will propose nominees and the Vatican will have, at a minimum, veto power and possibly some exercise of choice; the so-called underground churches will be recognized; and a group of seven excommunicated bishops, validly consecrated though without papal mandate, yet who have requested regularization, will be legitimated and restored to their sees. (Again, these provisions are as yet not finally settled, but the precise details are not critical for our analysis.)

What is the busy, ill-informed Catholic to make of this? Denunciations have been swift from the neoconservative Right of American Catholicism, who speak of Pope Francis’s surrender to Communism and abandonment of the underground churches, and who seethe about the failures of Ostpolitik. Yet these denunciations have an odd time-capsule quality to them, as though it is always 1989, even though the Chinese regime has clearly evolved away from “Communism” per se to a kind of neo-Confucian authoritarianism. They are also oddly selective, overlooking the long, complicated, varied history of concordats between the Vatican and various regimes. One suspects at a minimum that matters are more complex than the neoconservative view suggests. In particular, there seem to be real trade-offs or even dilemmas, in this space, among competing aims, goals and principles—political, ethical and diplomatic. How to think about all this, without any real expertise? 

We are not China hands. Indeed, the fact that we lack the competence or information to evaluate the first-order merits of the arrangement, relative to the feasible alternatives, is (for us) fully rational, in the sense that it is too costly (at least in an opportunity-cost sense) to acquire the relevant expertise. We are rationally ignorant Catholics. But we can at least suggest some principles of low-information rationality—heuristics or rules of thumb—that are useful in such situations.

Who decides? A simple idea is that rather than attempting to evaluate the difficult trade-offs that afflict all first-order policy choices in this area, one should attempt to identify who is best positioned to evaluate those trade-offs. Here is a simple schema, merely for purposes of illustration. One might defend the Vatican’s decision by observing that “one should not allow the perfect to become the enemy of the good.” One might oppose it with the rejoinder “the good must not become the enemy of the still better.” Life teaches that sometimes one of these maxims is apt, sometimes another, depending upon circumstances. Which is most relevant here? It is highly plausible that the Vatican, which has a worldwide perspective on these matters, is better positioned to decide.

Dueling experts. Another strategy of low-information rationality is to rely on expert opinions. In principle, this is extremely helpful in such situations. The problem for the rationally ignorant Catholic, however, is that there are dueling experts in this space, and it is difficult to perform a meta-evaluation of their knowledge. In administrative law, the typical response to this is to say that where credible experts disagree, a decision-maker may rationally rely on any one of the competing views. In this sense, it is hardly unreasonable for the Vatican to listen to those of its experts who counsel some form of compromise with the regime.

Rationality review. A related point is best explained by analogy to rational-basis review in law, which is a typical approach to situations in which the decision-maker has information or competence that the evaluator lacks. The Supreme Court recently invoked a form of rationality review in Trump v. Hawaii to evaluate executive action bearing on foreign policy and security, as the Vatican’s diplomatic decision here surely does. The bedrock principle of rationality review is that the decision-maker should uphold the relevant action if any rational grounds for it can be identified or even conjectured. 

Here there is a mistake that Western observers may easily commit. The circumstances of churches under liberalism easily lead to a confusion of appropriate standards for evaluating the relations of sovereign powers. Religious agents in liberal regimes can, within narrowing limits, take actions (e.g., establishing churches, distributing propaganda) immediately on the basis of sincerely held beliefs—behavior explained by thick or belief-driven models of rational behavior. Sovereign powers engaged in treaty-making negotiations act with considerable external constraints not captured by the thick-rationality models instinctively used by commentators in countries with liberal policies toward sects. Viewing bargaining with suspicion may itself result from a liberal model of interaction among sects.

To make matters more complicated, negotiations between the Holy See and civil governments also do not fit the two-level-games model often used to analyze international agreements with reference to both international and domestic concerns. Instead a polycentric model of China-Holy See negotiations would be needed to describe the multiple levels at which games occur in dealings between an “ecclesiastical polity” and a state, as well as the different arenas of choice affected by any final concordat. Negotiation over concordats and similar ecclesiastical-political conventions adds several levels of action (each with interaction effects) beyond, say, the recent U.S.-Mexico trade agreement.

An account of the distinct, intersecting levels of negotiation would require a much longer treatment. “Citizenship” or membership in the Church functions differently from citizenship in a civil regime. But while ecclesiastical and civil citizenship are easily distinguished in liberal political contexts (in which the liberal polity takes no official cognizance of ecclesiastical status), nonliberal regimes frequently give rise to questions of overlap and exclusion: Who are members of the Catholic Church in China? What civil status is accorded to such members? What is the jurisdictional structure of the Church in China, and how does it relate to existing quasi-ecclesiastical bodies established by the state but frequently in the context of valid sacramental order? On top of this, any negotiation between China and the Vatican is implicitly triangular given the disputed status of the Republic of China.

In this extraordinarily complicated context, we can imagine a number of rational grounds for a concordat between the Holy See and China. Rational does not mean there are no trade-offs or even tragic dilemmas, nor does it necessarily entail a maximization of some welfare function. We use it in a relaxed sense, meaning just that a roughly reasonable authority could think that, on balance, prudence weighs in favor of an agreement. Consider the following possibilities: 

— Circumstances of evangelization. One might think that Christianity is exploding in China, that Protestantism is ahead in this race, that the main obstacle to Catholic evangelization is the problem of the Church’s status, and that it is best to regularize that status—even in a distinctly nonideal way—in order to allow the pace of Catholic evangelization to quicken. By the same token, if Catholic evangelization is bound to quicken in any event, the Church may perceive an increasing urgency to seize the means of clerical formation for the sake of that continued evangelization.

Departure from prior conditions. During the initial, post-1951 period of the intense persecution of Chinese Catholics, practice of the Catholic faith went underground. In the long period following the establishment of the Chinese Patriotic Catholic Association, however, there is not a one-to-one mapping of “members of the Catholic Church” onto either unregistered Catholic churches or to the CPCA exclusively. Here the complexity of negotiations turns on the Church’s claim of jurisdiction over the baptized, with the added fact that it has not presumed ordinary faithful in the CPCA to be schismatic. The Church has thus continued to claim, by virtue of their baptism, jurisdiction over Catholics in the CPCA, yet lacks the ordinary exercise of that jurisdiction—an incoherent and intolerable situation requiring resolution.

Resolution of original errors. Relations between the Holy See and China were severed in 1951 by China and not by the Holy See. The Holy See had established relations with the Nationalist government on Taiwan, and so it was rebuffed (for this reason among others) by the Communist Chinese government and its internuncio was expelled. Given that the Chinese government has sought the restoration of relations, in various ways, from the early 1980s onward, the possibility of resolving an original error may suggest to ecclesiastical negotiators the prudence of reaching an agreement. Further, failure to seek resolution of the original error for which it disclaimed responsibility could be perceived by Vatican negotiators as taking ownership of the original condition.

Divergent evaluation of trade-offs. Perduring political institutions, of which the Church is a salient example, evaluate trade-offs differently than civilian religious actors. Even in ancien régime France, for example, the Church consented to royal prerogative in episcopal appointments governed by the Concordat of Bologna and signed in 1516 by King Francis I and Pope Leo X. The concordat, however, specified certain preconditions likely to lead to benign selections, and also reserved a veto power to the pope. (Ironically, the Church did not enjoy noninterference in episcopal appointments till after the Loi de séparation of 1905.) What citizens of liberal democracies view as a departure from the norm may be viewed by negotiators as a departure from a recent norm or even the revival of an older arrangement, with which the Church as an institution has centuries of experience. Accordingly, from the Church’s uniquely long-term perspective, any potential concordat with China may be more easily understood with reference to preliberal European concordats.

— “It is more important that the applicable law be settled than that it be settled right”—so that it can be unsettled later. Even on a more contemporary view, the Church currently tolerates and has recently tolerated a civil role in the selection of bishops. In 1966, the Vatican agreed to a concordat with François “Papa Doc” Duvalier of Haiti concerning the civil government’s role in the nomination of bishops. It was precisely this first agreement that, after the death of “Papa Doc,” eventually led to the Church’s liberty in selecting its own bishops. At present the Church already acknowledges a role for the government of Vietnam in the selection of bishops, an arrangement which may be seen by negotiators as sufficient precedent for reaching such an accord. Combining the two examples, Vatican negotiators may consider the value of recent examples (with unsavory regimes) not well known to a Western audience, as well as the value of establishing some agreement which would, in turn, be open to future modification.

Ideal and nonideal decision-making. Although some commentators have cast the resolution of relations between China and the Holy See in terms pejorative to the current pontificate, negotiators may eventually conclude that the necessity outlined by previous popes (e.g., the Letter of Benedict XVI to the Catholic Church in China, Pentecost 2007) has come due. Since the reopening of negotiations between China and the Holy See in 1987, the apparent direction of civil liberties in China, and consequently also of the libertas ecclesiae, has changed. The consolidation of CPC rule under Xi Jinping suggests that unrealistic hopes of unilateral Chinese state liberalization may at least be rationally discounted against the urgency of resolving jurisdictional problems for Chinese Catholics. Diplomatic actors may rely on multiple criteria in evaluating potential consequences, whereas strident critics pick out a single dimension and absolutize it to preclude the possibility of negotiation. Put differently, the neoconservative critics often seem to assume that the alternative to the Vatican policy is some ideal of Chinese capitulation. Given that there is no evidence whatsoever that such an ideal can be attained, however, the Vatican faces a choice between distinctly nonideal futures.

Recognition regimes. A question often neglected by American writers concerns the role of the Church in sovereignty recognition as well as the Church’s needs in the same sphere. China’s desires for sovereignty recognition are well known; by the same token, the Holy See’s diplomatic mission in Taipei is, at least in part, an accident of events belonging to a different political context. While the Holy See’s ability to offer sovereignty recognition may appear to be a minor aspect of ecclesiastical function within a liberal religious context (in which liberal principles have obviated the need for and the effects of recognition regimes), negotiators may view it as essential for operation in nonliberal regimes, and nonliberal regimes may value political recognition by the Church. In the context of disputed sovereignty, diplomatic recognition may have high exchange value and low cost for multiple diplomatic actors, particularly in the case of negotiations modeled as polycentric games.

Foresight. Rather than being a relic of a Cold War past, it is possible that the nonliberal “political theology” of the Chinese regime is a harbinger of a more frequent tension between the Church and newly religiously assertive civil powers. While a future exchange of agreements between sovereign powers may no longer be between the Church and Catholic political agents, earlier historical examples of diplomacy between the Church and civil powers may hold the key for understanding an agreement between the Vatican and China. By the same token, such an agreement may reflect a calculation about the growing tendency toward religiously assertive civil powers (for example, the Philippine government under Duterte). Paradoxically, concessions regarding episcopal appointments may reflect a return to jurisprudence from before the secular abandonment of episcopal appointments to ecclesiastical interest.

*****

Our aims in advancing these conjectures are limited. We don’t know, or even assert, that the foregoing claims about the Vatican’s posture vis-à-vis China are true. Certianly, none of this is to claim that the Vatican’s emergent China policy is just clearly correct, in a first-order sense. Our point is that there are ample grounds to believe that the policy is entirely rational, given nonideal circumstances. We don’t know whether it is ultimately right, but we also doubt that the neoconservative critics know either, and its rightness or wrongness will ultimately be determined by unpredictable circumstances. In this sort of uncertain environment, reliance on strategies of low-information rationality suggests that, for Catholics, a broad measure of deference to Vatican decisions is sensible.

St. Francis Xavier, pray for us. 圣方济各 沙忽略, 请为我们祈祷。

September 20, 2018 in Garnett, Rick | Permalink

Prof. Munoz on free speech, Charles Murray, and Catholic character at Notre Dame

Public Discourse has published my colleague Prof. Vincent Phillip Munoz's recent remarks at the U.S. Department of Justice Forum on Free Speech in Higher Education.  Well worth a read.  Here's a bit:

I am sometimes asked whether academic freedom exists at a Catholic university such as Notre Dame. I have never been at a university that offers more academic freedom, and I have been a faculty member at a large state research university and a small private elite liberal arts college. As a Catholic university, Notre Dame is committed to the unity of faith and reason. Indeed, because God is understood to be the author of all that is true, the university is confident in and can offer reasons for its commitment to seeking the truth.

Universities are either committed to truth-seeking through reasoned inquiry, or they are committed to something else. If they are committed to truth-seeking, free inquiry and free speech will be safeguarded. If they are committed to something else—be it social change or overcoming historical oppression or job training or whatever—that something else will inevitably trump free inquiry and free speech if and when it requires it. It’s not that complicated.

September 20, 2018 in Garnett, Rick | Permalink

Wednesday, September 19, 2018

Lee Strang responds to Michael Sean Winters re: originalism, etc.

Here, at Public Discourse.  A bit:

 [T]he Constitution is at the center of American political and legal life, so properly interpreting the Constitution is of crucial importance. Americans of all stripes invoke the Constitution to support their differing legal and political positions. Originalism’s capacity to provide a coherent method to answer these fundamental constitutional questions depends, as I described in my article, on whether it has successfully navigated its intellectual transformation.

September 19, 2018 in Garnett, Rick | Permalink

Monday, September 17, 2018

Religious Lawyering conference at Fordham

On Friday, I had the privilege of participating in a conference at Fordham Law School commemorating the 20th anniversary of two conferences held there that, in retrospect, initiated the religious lawyering movement 2.0 (i.e., beyond the work of Tom Shaffer and Joe Allegretti).  MoJ's own Amy Uelmen did a wonderful job as a co-organizer of the event. A few highlights:

  • Strong participation from representatives of the National Association of Muslim Lawyers, an organization that was birthed at those Fordham conferences and is now a flourishing presence in communities across the country.  Listening to UW-Madison law prof Asifa Quraishi-Landes describe the group's history, it was a blessing that Muslim lawyers came together to build infrastructure for fellowship and support before 9/11, anti-Sharia legislation, and travel bans inescapably pulled the organization in the direction of civil rights advocacy.  NAML brings a formidable litigation presence today, but it's important to recognize that the group was formed by lawyers who wanted to support one another on their faith journeys within the profession.   
  • Howard Lesnick's work was honored by several speakers, including Emory Christian Ethics prof Darryl Trimiew, who noted that, like Jacob, Lesnick wrestles with God.  For Lesnick - a deeply engaged skeptic - the wrestling is the point; the wrestling has not stopped; in the wrestling, there is beauty. 
  • David Opderbeck called for a new generation of law and religion scholarship, with a redoubled effort to engage the latest in Christian ethical thought and theology, and Russ Pearce noted the importance of identity questions to the religious lawyering movement, both past and future.

Lucia Silecchia and I offered remarks about what insights lawyers might take from Pope Francis's apostolic exhortation, Rejoice and Be Glad.  I focused on his lament that some Christians "become incapable of touching Christ's suffering flesh in others, locked up as they are in an encyclopedia of abstractions," and his pointing to Jesus as clearing "a way to seeing two faces, that of the father and that of our brother. He does not give us two more formulas or two more commands.  He gives us two faces, or better yet, one alone: the face of God reflected in so many other faces."

This reminded me of John Noonan's Persons and Masks of the Law.  Noonan showed how lawyers use abstract principles and legal rules as masks to cover the real people affected by our work (e.g., "foreseeability" in the case of Helen Palsgraf). 

How do we train our students to utilize abstract principles wisely without obscuring the faces of those affected by their work?  How can we discard the masks without jeopardizing the healthy degree of detachment that is a key component of the rule of law?  These are not just insights for lawyers, obviously: to what extent have the bishops employed their own set of abstractions in ways that serve to obscure the faces of abuse victims?

We have not had as many conferences dedicated to such conversations since the Great Recession and ensuing Law School Troubles - ten years ago, we gathered regularly at conferences for, e.g., religiously affiliated law schools, Catholic legal theory, Catholic social thought and law.  Understandably, law schools have been focused on more pressing fiscal issues.  As the market stabilizes, reconvening with friends and fellow travelers at Fordham reminded me just how important these questions - and our persistent, institutional engagement with them - are to the well-being of our students and the broader society.

September 17, 2018 in Vischer, Rob | Permalink

Sunday, September 16, 2018

Robert Louis Wilken at the Center for Law and Religion

We are delighted to host Professor Robert Louis Wilken (the author of one of my favorite books on the history of the early Church) tomorrow to discuss his forthcoming book, "Liberty in the Things of God." 

Professor Wilken's presentation is the first at our Colloquium in Law and Religion this fall, a seminar at St. John's Law School that my colleague, Mark Movsesian, and I co-teach. More soon on the substance of Professor Wilken's very interesting new book concerning the intellectual origins of the idea of religious freedom.

September 16, 2018 in DeGirolami, Marc | Permalink

Thursday, September 13, 2018

Dean Announcement at The Catholic University of America, Columbus School of Law

This year CUA's Law School Dean, Dan Attridge, announced he would be stepping down.  After this very successful Deanship, the University has begun its national search.  Below is the announcement as well as contact information.  Of course, MOJ'ers can also feel free to contact me directly with any questions as well as a more lengthy description of the position.

 

As the national university of the Catholic Church in the United States, the Catholic University of America is committed to being a comprehensive Catholic and American institution of higher learning, faithful to the teachings of Jesus Christ as handed on by the Church. Dedicated to advancing the dialogue between faith and reason, the Catholic University of America seeks to discover and impart the truth through excellence in teaching and research, all in service to the Church, the nation, and the world.

Established in 1897, the Columbus School of Law is a national leader in preparing students of all faiths for the practice of law. The Law School has outstanding programs, institutes, externships, study-abroad opportunities, and nationally recognized clinics. Located in the nation’s capital, the Law School is housed in a beautiful modern building specifically designed for contemporary legal education, with state-of-the-art technology throughout its classrooms and library. The Law School offers three degrees: the Juris Doctor (J.D.), including a full-time day program and a part-time evening program; the Master of Laws (LL.M.); and the Master of Legal Studies (M.L.S.)

The School’s approach to legal education can be summarized with three words: practical, focused, and connected, also referred to as the CUA Law Advantage. The School shines as a gem within legal education in Washington, comprising collegial and compassionate students, a supportive and academically distinguished faculty, and an accomplished and well-connected alumni base that is actively involved in assisting current students to reach their goals.

The Law School seeks a distinguished legal scholar or member of the legal profession to serve as its next Dean. Reporting to the Provost, the Dean is the School of Law’s chief academic, advancement, financial, and administrative officer, with overall responsibility for its academic programs, operating budget, personnel management, strategic planning, public relations, and fundraising. The Dean is also the Law School’s primary representative to the University, alumni, and legal communities.

The next Dean will be presented with the opportunity not only to propel CUA Law to higher levels of prominence and distinction, but also to serve among the senior leaders of an international, Catholic research university.

CUA seeks a Dean who will make a significant contribution to advancing the University’s mission and goals, continue to advance the national academic and professional standing of the Law School, and provide strategic vision at an important time in its history. Candidates should have demonstrated leadership, administrative, and fundraising abilities and offer a long-term vision for the continued growth of CUA Law. Because the Law School seeks a vibrant intellectual leader, all candidates are expected to meet the qualifications for appointment at the rank of full professor with continuous tenure by their scholarly publications and/or distinguished contributions to the profession.

Nominations, inquires, and applications should be sent in confidence to: [email protected]s.com

The Catholic University of America is an Affirmative Action, Equal Opportunity Employer.

 

September 13, 2018 in Leary, Mary G. | Permalink

A short opinion piece on religious freedom and church accountability

Thanks to Richard Reinsch, at Law & Liberty, for including this short piece of mine in today's symposium on "the Catholic Church's crisis."  A bit:

. . . [I] is clear, and it is crucial, that – in accord with due process, of course, and in keeping with important safeguards like statutes of limitations – alleged crimes be investigated, that criminal offenses be punished, that victims are compensated. This is true for bishops and clergy no less than it is for politicians and police or for laymen and citizens. It seems no less clear and crucial that not only repentance and penance but also reform and a reckoning are needed in the Church leadership, structures, and processes.

At the same time, calls for “accountability” should reflect careful thinking about the questions “accountable to whom?” There are matters over which secular political authorities and public officials have no power or say. . . .

September 13, 2018 in Garnett, Rick | Permalink

Tuesday, September 11, 2018

A podcast on Endo's "Silence"

Longtime MOJ readers know that a number of us are big fans of Shusaku Endo's (complicated, haunting, fascinating) novel, "Silence."  I was glad to see it featured the other day on one of my favorite podcasts, John Miller's "Great Books."  Check it out.  (I was intrigued by Miller's guest's "take" on the novel, which was clearly a product of her Protestant lenses.  I wonder if other Catholic readers will have a similar impression.)

September 11, 2018 in Garnett, Rick | Permalink

A troubling opinion on church autonomy from the CJEU

Here's the press release.  Nutshell:

Dismissal of a Catholic doctor from a managerial position by a Catholic hospital due
to his remarriage after a divorce may constitute unlawful discrimination on grounds
of religion.


The requirement that a Catholic doctor in a managerial position respect the Catholic Church’s
notion of marriage as sacred and indissoluble does not appear to be a genuine, legitimate and
justified occupational requirement, which is nevertheless a matter for the German Federal Labour
Court to determine in the present case.

However:

However, it is for the Bundesarbeitsgericht to determine whether IR has established that, in the light of the
circumstances of the case, there is a probable and substantial risk that its ethos or its right
of autonomy will be undermined.

Stay tuned.

September 11, 2018 in Garnett, Rick | Permalink

Stabat: Regenerating the Church from the Foot of the Cross

As I try to steady myself amidst the earthquake of the crisis in the Church, I frequently return in my mind’s eye to living and working in New York City during the tragic event that we mark today, 9/11.  I remember going to a liturgy for the victims in a large and packed church in the heart of Manhattan.  It was only when two very large candles were lit that I began to sob:  “Lamb of God, you take away the sins of the world, have mercy on us.”  In the intense days that followed, I frequently touched that mercy in the atmosphere on the streets, and especially riding the subway.  We were strangers, but our best hope was to be human together and attentive to each other’s pain and each other’s needs.

And so now too, I am drawn to the foot of the cross: “Lamb of God.”  What a horrible, violent, shameful, ugly, fearful, repulsive scene.  What must it have been for Mary, who sang of the greatness of God’s work when Jesus was in her womb, to witness the body of her Son so reduced—to the point that he even seemed drained of his divinity: “My God, my God, why have you forsaken me?” (Mark 15:34) 

And yet in the Gospel of John, Mary is called to focus her attention on the person who is standing beside her: “Woman, behold your son.”  And John is called to turn to Mary: “Behold your mother.”  And so John took Mary into his own home. (John 19:26-27).  This is the powerful DNA of the newly born Church that emerges from Jesus’s radical identification with all forms of human weakness and suffering. 

It is true that this moment of intense purification calls for a creative brainstorm on how to start or strengthen structures and practices of transparency, accountability, and shared decision-making.  But perhaps in the midst of these conversations, we can also work together to identify some of the spiritual wounds that have led to unhealthy and even vicious practices within Church structures and institutions.  For example, many who work within the Church—priests and laity alike—do not experience the warmth of an intimate and human space that nurtures their spiritual, personal and emotional integrity, and also keeps them connected and accountable to the larger community.  Who is paying attention when inevitable personal crises emerge?  Who has time to listen and walk together through those questions and doubts?  What practices can sustain our focus and reinforce our efforts to be in the world, all together, a people of the Beatitudes: poor, meek, pure, just, close to those who suffer?

I think it may be here that Jesus’s words from the cross cry out to each of us: “Behold your son.”  In his Commentary on the Gospel of John, the Church Father Origen explained that Mary had just one Son.  The injunction was not to behold another son, but to behold her one Son, the Christ, in John: “Lo, this is Jesus, whom you bore.”  (Book 1:6)  When we behold the wounded body of today’s Church, we behold the wounded body of Christ. 

“Behold your mother.”  What might it mean for us to “take Mary home” in the wake of this crisis?  There would be many ways to invoke her presence and her closeness to us in this moment.  As our blog recalls, Mary is Mirror of justice, and she is also Refuge of sinners.  Both dimensions of her love can accompany us in the important work of truth-telling and healing in the wake of the unspeakable crimes and abuse that have been revealed.   

Perhaps one of the most powerful ways to bring Mary home is to focus on how her open adherence to God’s great love generates the presence of the living Christ in our world.  This presence can then in turn be our guide in the difficult work of in-depth cultural change.  Within the great mosaic of the Church we may have different roles and ways to respond to the crisis.  For some of us, our contribution might simply consist in helping to create a space of community and love where people are welcomed and accompanied in the ups and downs of our lives, so that many can experience the Church as the home and school of communion. (Novo millennio n.43).

All of this work can be an expression of Mary’s own love and care for the Church, through which, in that stabat, she beholds her own Son.  Mary, Seat of wisdomVessel of honor, Help of Christians, pray for us.  Amy Uelmen

September 11, 2018 in Uelmen, Amy | Permalink