Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Wednesday, March 22, 2017

Princeton Theological Seminary pulls honor for Tim Keller

This is, I think, a very troubling (and revealing) development:

Faced with mounting criticism for its decision to give a major award to the Rev. Tim Keller, founding pastor of Redeemer Presbyterian Church in Manhattan and one of the country’s best-known conservative Christian thinkers, Princeton Theological Seminary has reversed course and said Keller will not receive the honor.

In an email to faculty and students on Wednesday morning (March 22), the president of the venerable mainline Protestant seminary, the Rev. Craig Barnes, said he remains committed to academic freedom and “the critical inquiry and theological diversity of our community.”

But he said that giving Keller the annual Kuyper Prize for Excellence in Reformed Theology and Public Witness – named after a famous Dutch neo-Calvinist theologian – might “imply an endorsement” of Keller’s views against the ordination of women and LGBTQ people.

Now, I happen to agree that institutions of higher education should carefully about whom they honor and about the meanings of the awards they confer. But, Tim Keller is eminently worthy of being honored. Yes, my understanding is that he has traditional Christian views regarding marriage and sexual morality. He also is admirably charitable and civil in addressing these and all other matters.  So, I agree with the principle that this statement reflects:

“Yes to academic freedom. Yes to listening to others whose opinions are different from our own (no matter how distasteful they may be),” Smith wrote on her blog, where she had initially blasted the award to Keller as “offensive.”

“No to giving large fancy prizes that can be confused with endorsement. Some may not be satisfied with this response. I think it’s a great compromise.”

I am not convinced, though, that it was appropriately applied in this case. 

March 22, 2017 in Garnett, Rick | Permalink

A short op-ed on Judge Gorsuch, the Court, and religious freedom

Here's a quick take, from me, at the Religion and Politics site.  A bit, from the end:

Religious freedom is, still, our “first freedom.” If our most sacred things are not free, then nothing else that matters is, either. A government that imagines itself competent to re-arrange or supervise our beliefs about the transcendent is certainly not to be trusted when it comes to respecting our privacy or property. Religious liberty is not special pleading, and it is not a luxury good. It is foundational to our constitutional order and democratic aspirations. The Supreme Court can safeguard religious freedom, for everyone, but it matters at least as much that a commitment to human dignity is deeply rooted in politics, legislatures, and neighborhoods. Judge Neil Gorsuch’s record suggests that he understands this.

March 22, 2017 in Garnett, Rick | Permalink

Saturday, March 18, 2017

Is polite debate ever a luxury we cannot afford?

Middlebury prof Laurie Essig has published an essay in The Chronicle that attempts to complicate the portrayal of the Charles Murray debacle as a regrettable blow to free speech.  This strikes me as the paragraph that does the heavy lifting of her analysis:

The Murray event’s organizers encouraged us to debate his ideas and to counter his eugenicist arguments with evidence and pointed questions. To be fair, many at Middlebury, including the president and the political-science faculty, were worried about censorship and committed to the idea that we must be able to hear ideas we find disagreeable. For people who feel threatened in the current political climate, however, polite debate about disagreeable ideas is a luxury they can no longer afford. We live in dangerous times, when immigrants fear expulsion and hate crimes are on the rise. Personal vulnerability drowns out the fear of censorship.

Under what circumstances should polite debate be deemed a luxury we can no longer afford?  If Essig had written that relying solely on polite debate and eschewing other forms of action may be a luxury we cannot afford at certain times, I'd agree wholeheartedly.  But unless we're in an emergency situation when polite debate is not a wise investment of time, I struggle to think of a context in which polite debate must be rejected as an unaffordable luxury.  Contrary to Essig's assertion that "[t]he right became its own precious snowflake when [Milo] Yiannopoulos talked about teenaged boys as sexual subjects who could consent to sex with adult men," I don't think that CPAC's withdrawal of an invitation to Yiannopoulos shows that conservatives also believe that certain beliefs are inappropriate for polite debate.  There are legitimate questions surrounding the wisdom of an organization's decision to provide a platform to a particular speaker, but that does not mean that it's categorically wrong to engage in a polite debate about having sex with boys.  There was nothing wrong with members of the Middlebury community condemning the decision to invite Charles Murray to campus; the problem is what happened after the invitation was extended and accepted.

Essig is right to point out that we have to be attentive to ensuring that those impacted by the views being expressed are equipped to participate meaningfully in the debate.  The proper response to such concerns is to remove barriers to participation and empower traditionally marginalized members of the community; the proper response is not to dismiss polite debate as an unaffordable luxury.

March 18, 2017 in Vischer, Rob | Permalink

Thursday, March 16, 2017

Deans of Catholic law schools object to elimination of LSC

Last week, the deans of 25 Catholic law schools delivered a letter to Mick Mulvaney, Director of the Office of Management and Budget, objecting to the elimination of the Legal Services Corporation.  With today's news, we have decided to release that letter publicly.

March 10, 2017

Mick Mulvaney

Director, Office of Management and Budget

725 17th Street, NW Washington, DC 20503

 

Dear Mr. Mulvaney:

We write as deans of Catholic law schools in the United States to urge you to maintain funding for the Legal Services Corporation (LSC), the largest funder of civil legal aid in our nation.

The LSC’s 43-year history reflects a bipartisan commitment to address our nation’s glaring access to justice problem. LSC-funded providers have provided a voice to millions of low-income Americans who could not otherwise have afforded legal representation in the midst of some of life’s most harrowing circumstances.  The most frequent cases involve family law (e.g., protecting victims of domestic violence, guardianship proceedings), housing (e.g., landlord-tenant disputes, renegotiating loans to prevent foreclosure), helping military families with a variety of legal needs, and consumer issues (e.g., protecting the elderly and vulnerable from being victimized by unscrupulous lenders).  These providers help people who live in households with annual incomes at or below 125% of the federal poverty guidelines, a category that includes almost one in five Americans. 

We recognize the need for difficult fiscal decisions, and the LSC has already worked creatively and diligently to do more with less. From 2007 to 2016, funding per eligible person decreased from $7.54 to $5.85. In 2016, Americans spent millions more on Halloween costumes for pets than on LSC grants. 

Further cuts to the LSC would exacerbate a justice gap that remains deeply problematic for a nation committed to the rule of law. According to the World Justice Project’s survey data, the United States ranks dead last (36th out of 36) among high-income countries on the question of whether people can access and afford civil justice.  Though LSC-funded programs helped 1.8 million people in 2015, recent studies indicate that 80 percent of the civil legal needs of the eligible population are not being met. 

The justice gap should concern all Americans, but we take a special interest in the problem as leaders of our nation’s Catholic law schools. Though we represent law schools of various sizes, with unique histories, serving distinct communities in different regions of the country, we share a commitment to make the justice system more accessible to the poor.  This is not just a matter of good citizenship or professional duty, but Catholic identity. As Saint John Paul II explained, “Love for others, and in the first place love for the poor, in whom the Church sees Christ himself, is made concrete in the promotion of justice.” (Centesimus annus ¶ 58)  Our legal aid clinics, pro bono programs, and many other school-specific initiatives bear witness to this commitment.  Closing the justice gap also relies on support from state and local governments, law firms, foundations, and a broad spectrum of private philanthropy.  

The LSC’s support, however, is irreplaceable, not just as a matter of practical reality, but as an affirmation of our political community’s core commitments. The Church teaches that the state is responsible to cultivate the conditions by which “the common good may be attained by the contribution of every citizen.” (Compendium of the Social Doctrine of the Church ¶168)  By helping ensure access to our justice system for citizens who could otherwise not afford legal representation, the LSC empowers individuals and families to contribute to the common good by giving them more control over their own lives.  The LSC promotes justice by leveling the playing field for all Americans. 

A growing body of research demonstrates that investment in civil legal aid yields significant economic benefits for state and local governments. To cite just three of the conclusions supported by recent research:

  • Civil legal aid reduces repeat incidences of domestic violence, thus reducing public spending on medical care, special education and counseling for affected children, and police resources.
  • Through representation in child welfare proceedings, civil legal aid saves public money by helping children leave foster care more quickly.
  • Housing court representation by civil legal aid attorneys saves public money by reducing evictions, unjust foreclosures, and homelessness.

It also bears noting that our support for the LSC does not emanate from our agreement about politics. Over its history, the LSC has been the subject of debates that have led Congress to restrict the permissible scope and aim of funded programs.  Included among the activities that the LSC may not fund are lobbying, criminal cases, habeas corpus actions, labor organizing activities, abortion-related litigation, the representation of non-citizens (subject to limited exceptions), class actions, prisoner litigation, welfare reform, and redistricting.  While we may not agree with each other on the prudence of these limitations, LSC’s remaining statutory charge lies largely beyond partisan reproach. 

Each one of us could share stories of how LSC-funded organizations in our communities have changed lives for the better, not by government handout, but by equipping a trained advocate to come alongside those whose interests are too frequently disregarded and act as their voice, their counselor, and their champion. The LSC’s work provides a daily reminder of government’s capacity to affirm the dignity and worth of every American.  

As the late Justice Antonin Scalia stated in his remarks celebrating the organization’s 40th anniversary, the LSC “pursues the most fundamental of American ideals,” for “without access to quality representation there is no justice.” 

We appreciate your consideration of our request.

Sincerely,

 

Mark C. Alexander

Villanova University Charles Widger School of Law

 

Daniel F. Attridge

The Catholic University of America Columbus School of Law

 

Kathleen M. Boozang

Seton Hall University Law School

 

Kevin Cieply

Ave Maria School of Law

 

Annette E. Clark

Seattle University School of Law

 

Phyllis L. Crocker

University of Detroit Mercy School of Law

 

Matthew Diller

Fordham University School of Law

 

Stephen C. Ferruolo

University of San Diego School of Law

 

Jose Frontera

Pontifical Catholic University of Puerto Rico Law School

 

Alfredo Garcia

St. Thomas University School of Law (FL)

 

William P. Johnson

Saint Louis University School of Law

 

Michael J. Kaufman

Loyola University Chicago School of Law

 

Lisa A. Kloppenberg

Santa Clara University School of Law

 

Jane Korn

Gonzaga University School of Law

 

Maureen Lally-Green

Duquesne University School of Law

 

Paul McGreal

Creighton University School of Law

 

Rev. Lawrence W. Moore, S.J.

Loyola University New Orleans College of Law

 

Nell Jessup Newton

Notre Dame Law School

 

Vincent D. Rougeau

Boston College Law School

 

Stephen M. Sheppard

St. Mary’s University School of Law

 

Andrew L. Strauss

University of Dayton School of Law

 

John Trasviña

University of San Francisco Law School

 

William Treanor

Georgetown University Law Center

 

Robert K. Vischer

University of St. Thomas School of Law (MN)

 

Michael Waterstone

Loyola Law School, Los Angeles

 

Institutional affiliations are listed for identification purposes only.

March 16, 2017 in Vischer, Rob | Permalink

#remembermiddlebury: Sign the George/West Statement

Robbie George and Cornell West have written an elegant yet powerful statement in response to the debacle at Middlebury, inviting folks from political left, right and center to join on. Middlebury professor Allison Stanger was among the first to sign. I've just signed on. Here's hoping you will too. 

Sign the Statement: Truth Seeking, Democracy, and Freedom of Thought and Expression - A Statement by Robert P. George and Cornel West

March 14, 2017

The pursuit of knowledge and the maintenance of a free and democratic society require the cultivation and practice of the virtues of intellectual humility, openness of mind, and, above all, love of truth. These virtues will manifest themselves and be strengthened by one’s willingness to listen attentively and respectfully to intelligent people who challenge one’s beliefs and who represent causes one disagrees with and points of view one does not share.

 

That’s why all of us should seek respectfully to engage with people who challenge our views. And we should oppose efforts to silence those with whom we disagree—especially on college and university campuses. As John Stuart Mill taught, a recognition of the possibility that we may be in error is a good reason to listen to and honestly consider—and not merely to tolerate grudgingly—points of view that we do not share, and even perspectives that we find shocking or scandalous. What’s more, as Mill noted, even if one happens to be right about this or that disputed matter, seriously and respectfully engaging people who disagree will deepen one’s understanding of the truth and sharpen one’s ability to defend it.

 

None of us is infallible. Whether you are a person of the left, the right, or the center, there are reasonable people of goodwill who do not share your fundamental convictions. This does not mean that all opinions are equally valid or that all speakers are equally worth listening to. It certainly does not mean that there is no truth to be discovered. Nor does it mean that you are necessarily wrong. But they are not necessarily wrong either. So someone who has not fallen into the idolatry of worshiping his or her own opinions and loving them above truth itself will want to listen to people who see things differently in order to learn what considerations—evidence, reasons, arguments—led them to a place different from where one happens, at least for now, to find oneself.

 

All of us should be willing—even eager—to engage with anyone who is prepared to do business in the currency of truth-seeking discourse by offering reasons, marshaling evidence, and making arguments. The more important the subject under discussion, the more willing we should be to listen and engage—especially if the person with whom we are in conversation will challenge our deeply held—even our most cherished and identity-forming—beliefs.

 

It is all-too-common these days for people to try to immunize from criticism opinions that happen to be dominant in their particular communities. Sometimes this is done by questioning the motives and thus stigmatizing those who dissent from prevailing opinions; or by disrupting their presentations; or by demanding that they be excluded from campus or, if they have already been invited, disinvited. Sometimes students and faculty members turn their backs on speakers whose opinions they don’t like or simply walk out and refuse to listen to those whose convictions offend their values. Of course, the right to peacefully protest, including on campuses, is sacrosanct. But before exercising that right, each of us should ask: Might it not be better to listen respectfully and try to learn from a speaker with whom I disagree? Might it better serve the cause of truth-seeking to engage the speaker in frank civil discussion?

 

Our willingness to listen to and respectfully engage those with whom we disagree (especially about matters of profound importance) contributes vitally to the maintenance of a milieu in which people feel free to speak their minds, consider unpopular positions, and explore lines of argument that may undercut established ways of thinking. Such an ethos protects us against dogmatism and groupthink, both of which are toxic to the health of academic communities and to the functioning of democracies.

 

Robert P. George is McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University.

Cornel West is Professor of the Practice of Public Philosophy in the Divinity School and the Department of African and African- American Studies at Harvard University.

 

If you would like to join Professors George and West as a public signatory to this statement, please submit your name and title and affiliation (for identification purposes only) via email to jmadison@Princeton.edu. Open to all to sign.

If you signed on to the statement but do not yet see your name listed here, please check back later. We're working diligently to manage the large volume of signatories to this statement.

March 16, 2017 in Bachiochi, Erika | Permalink

Hemingway on Judge Watson's TRO

It's a sad comment on the state of the federal judiciary when a non-lawyer journalist can give a more doctrinally persuasive analysis of the constitutionality of an executive order than can a federal judge.  See Mollie Hemingway's analysis (here) of Judge Derrick Watson's opinion granting a TRO against the enforcement of the Trump administration's revised travel ban.  Watson purports to apply the Supreme Court's test for Establishment Clause violations set forth in Lemon v. Kurtzman.  As Hemingway observes, "[Judge] Watson says [the executive order] fails the first part of the [Lemon] test. Yet the idea that the executive order has no secular purpose is laughably wrong. One can disagree with the executive order or its goals without denying that those goals are secular."  Having the self-awareness and the discipline to separate political disagreement with a law from legal critique of the law has, of course, been something that judges have struggled with, especially since the latter half of the twentieth century.  Sadly, Watson's opinion does little to restore the public's confidence in the judiciary's comprehension of its vital but limited role in our constitutional order.

March 16, 2017 | Permalink

Wednesday, March 15, 2017

Villanova's Eleanor H. McCullen Center for Law, Religion and Public Policy

Nice news out of Villanova (press release here), where the Widger School of Law has named its Center for Law, Religion and Public Policy after Eleanor H. McCullen in recognition of $5 million in gifts from her husband, Joseph T. McCullen, Jr. Among her many remarkable achievements, Mrs. McCullen was the plaintiff in McCullen v. Coakley, the 2014 case in which the Supreme Court unanimously struck down a Massachusetts abortion clinic buffer zone statute. The naming of the Center in her honor is a wonderful tribute to a pro-life and free speech champion.

March 15, 2017 in Moreland, Michael | Permalink

Tuesday, March 14, 2017

On The Boy Who Cried Wolf Hypothesis (Further Thoughts in Response To Rob)

A couple of further thought in response to Rob, with whom I am greatly enjoying an exchange concerning perceptions of discrimination against Christians.

First, Rob writes that Christians are "lead[ing] the charge" against Muslims in some communities, citing conservative Christian support for so-called anti-Sharia laws and for the denial of zoning permits for the construction of mosques. I wonder if this is true. No doubt some conservative Christians do support these policies. But some say that those leading the charge today against immigrants, and those most hostile toward Muslims (and African Americans, and others, too), from the right tend to be non-Christians, not Christians. Rob suggests that the failure of some conservative Christians to advocate against, e.g., anti-Sharia laws might "smooth the way for the demonization of conservative Christians." Perhaps that is true, but the point assumes that politics rewards a kind of principled, rational consistency (I have disagreed with Tom Berg in a similar way before, regarding his view that politics rewards reciprocality and consistency). Conservative Christians, the argument seems to say, are likelier to be rewarded with non-demonization if they support the non-demonization of another group. But it seems to me that the real reasons for Christian demonization are located in very different places than these, and that the question of whether Christians will or will not be demonized as a political and/or cultural matter depends on much more powerful political and cultural forces. To name two: the cultural desires and aspirations of the secular left and of religiously disengaged conservatism.

Second, Rob says that Christians should be "specific and restrained" in pointing out discrimination against Christians. The reason is that "our too-easy embrace of that narrative [of discrimination and/or persecution]...can limit its power when we need it most." I don't think I agree with this point, but whether I could agree with it or not would depend upon facts I don't presently possess. The point being pressed by Rob could be called "the boy who cried wolf" hypothesis--the more frequently Christians point out episodes of discrimination and/or persecution against themselves, the more likely they are to be labeled "whiners" or some similarly dismissive appellation by their cultural and political opponents, and the less likely they will be to succeed when they invoke the charge of discrimination and/or persecution when it "really" happens. But why should one think that invoking discrimination is like this? To the contrary, why should one not think that the more one invokes the discrimination/persecution charge, the more powerful it becomes. And the less frequently one invokes it, the less plausible it seems (as, indeed, it seemed very implausible to the Washington State Supreme Court in the example Rob cites, notwithstanding what are to me the entirely persuasive arguments that Rob himself makes). You could call it the muscle hypothesis--the more you exercise, the stronger you get. There are many other examples of the power that the charge of discrimination can generate on behalf of a cause as a legal and political matter. Indeed, constitutional law (among other areas) is absolutely stuffed to the gills with them. If the objective is legal or political success, I'm not sure that I would accept the boy who cried wolf hypothesis as just self-evidently true, at least not without further evidence that this is, in fact, the likely outcome of "too many" claims of discrimination/persecution. In this instance, less may not be more. More may be more.

March 14, 2017 in DeGirolami, Marc | Permalink

Monday, March 13, 2017

Middlebury: my disgraced alma mater

Just a word, since the insanity at my alma mater last month has been covered in almost every noted publication to date. As Professor Allison Stanger returned to the hospital yesterday with a concussion, we still await definitive action on the part of the administration. Thankfully, on March 6, 100 professors spoke out swiftly in favor of free inquiry, offering "core principles that seem to us unassailable in the context of higher education within a free society." 

Having had Stanger as a senior at Middlebury in the 90s, these student (and outside) protesters don't know what they missed. She was as tough as nails and would have given any thinker (especially one positing spurious claims) a run for his money. Then again, watching a good portion of the (now removed) video of Charles Murray's talk presented in a protected Plan B setting leads me to think the students would have found in Murray some ammo for their current assault on 'privilege' (in which, at a hefty price tag, Middlebury so manifestly indulges). Too bad they couldn't just...listen. Rod Dreher's investigative reporting presents some evidence from the campus newspaper of what-was-going-on-at-Middlebury ahead of Murray's arrival. 

To think Middlebury was the site of my own intellectual conversion, precisely because it was a place willing to invite (and employ!) diverse thinkers that challenged my own far left/secularist thinking:  most notably professors Murray Dry, Paul Nelson, visiting professor Paul Carrese, and guest speaker Stanley Hauerwas.

But that was the 1990s. 

 

March 13, 2017 in Bachiochi, Erika | Permalink

The Legacy of Michael Novak & Catherine Pakaluk's brilliant social manifesto

The Heritage Foundation hosted a lovely live-streamed lunch-time panel today on the life and legacy of the late Michael Novak. Panelists included friends, collaborators, and students of the celebrated (if controversial) theologian who died last month. (As a participate in the Tertio Millenium Seminar in Poland, I number myself among his many grateful students--and was honored and delighted to spend time with him at Ave Maria and CUA over the last year.) Hosted by Ryan Anderson, panelists Catherine Pakaluk, Samuel Gregg, George Weigel and Mary Eberstadt offered intelligent and moving accounts of their friendship with Novak and his enduring legacy. 

Catherine Pakaluk, a Harvard-trained economist and now assistant professor of economics at the Busch School of Business and Economics at CUA, made the case for Novak as a true economist, articulating similar themes in the beautiful tribute she scribed for NRO last month: 

The economics curriculum at my university (and Penn was not unique in this) suffered acutely from the problem identified by James M. Buchanan in his 1964 article “What Should Economists Do?” What frustrated Buchanan, who went on to win the Nobel prize in economics in 1986, was that to most economists “our subject field is a problem or set of problems, not a characteristic human activity” (emphasis mine). He argued that this mistake would lead inexorably to the disintegration of “economics as a well-defined area of scholarship.” What he did not say but might have said is that a set of merely technological problems cannot inspire, cannot ennoble, and risks a sort of massive irrelevancy with respect to the great questions of human life. I raise this point because it seems to me that there is no better way to describe Novak’s work than to say that he never touched on a subject as anything other than “a characteristic human activity.”

 

It is worth noting that Novak’s formal education in philosophy, theology, and religious studies was much more like that of Adam Smith than like that of any modern-day economist. This has profound implications for higher education and may explain why Novak was such a fan of religious colleges, helping to found Ave Maria University and finishing his academic career at The Catholic University of America. We should expect, I hope, many initiatives in the coming years, especially at religious institutions, which seek to unpack the importance of philosophy and theology for economics and social science at large.

Catherine offers her own brilliant unpacking in a paper she wrote on the occasion of receiving the Acton Institute's 2015 Novak Award (which recognizes "outstanding scholarly research that examines the relationship between religion, economic freedom, and the free and virtuous society.") The paper, now available online (behind the paywall at the Journal of Markets and Morality, but more readily at  academia.edu), is entitled, "Dependence Upon God and Man: Toward a Catholic Constitution of Liberty." Putting Catholic social thought in conversation with liberal thinkers such as Milton Friedman and Friedrich Hayek, Catherine seeks to develop what she calls a "'liberty of dependence'...a doctrine of freedom in society that isn't quite a manifesto of personal liberty as Hayek might have wanted it--but rather a manifesto of social freedom in which freedom for the individual is required so that he can be dependent and responsible."

As one who also has written of late on the theme of dependency as an essential and forgotten element of the human condition--and as one happy to call Catherine a dear friend--I heartily recommend this deeply philosophical and learned approach to political economy.  Catherine is a mentor to many, an intellectual force for good, and a true gift to the Church. She is also the mother of eight very blessed children. 

March 13, 2017 in Bachiochi, Erika | Permalink

Response to Marc re Christian persecution narrative

Just a few quick points in response to Marc's disagreement with my original post:

1) I wholeheartedly agree that the global persecution of Christians is a crisis that demands our attention.  The survey that I referred to in my post asked respondents to compare Muslims and Christians in terms of discrimination experienced in the United States.

2) I agree with Marc that it is possible "[a] person could perceive certain threats to religious liberty and not others, and still make contributions to the protection of religious liberty." In the case of evangelical Christians evaluating religious liberty threats in our country today, I do think that the failure to recognize Muslims as a legitimate object of religious liberty concern will, over time, weaken religious liberty for all.  Christian support for so-called "anti-Sharia" legislation is one example.  As Christians lead the charge to deny zoning permits for mosques in some communities, is there a danger of creating precedent (legal or political) for denying permits for churches -- especially churches espousing disfavored beliefs about foundational commitments of the emerging political order -- in other communities?  Does the failure of (some) Christians to speak up against the demonization of American Muslims -- and the day-to-day implications of that demonization in the daily lives of American Muslims -- smooth the way for the demonization of conservative Christians?

3) I don't believe that we should remain silent about discrimination against Christians until we reach some sort of "real persecution" tipping point, but we should be specific and restrained in pointing it out (as I have tried to be).  The persecution narrative among American Christians gives us ample resources to resist oppression if and when it comes; our too-easy embrace of that narrative, though, can limit its power when we need it most.

March 13, 2017 in Vischer, Rob | Permalink

Disagreement With Rob

I see things a little differently than Rob does in his latest post concerning discrimination against Christians. I hasten to add that I am neither an Evangelical conservative Christian nor have I ever listened to Christian rock. I also have not read the original piece to which Rob links. The disagreements run to a number of issues, and as to some I am not sure they are disagreements at all. But for purposes of this post, let me point out three:

  1. Objection from demandingness: Rob says that "[i]f millions of Americans who (should) care deeply about religious liberty fundamentally misperceive where the most potent threats are aimed, religious liberty for all is on shaky ground." I am not sure this argument is correct. A person could perceive certain threats to religious liberty and not others, and still make contributions to the protection of religious liberty. He or she could defend certain principles in certain contexts and not in others, and still help toward the defense of those principles. That person need not have to perceive all threats, as well as the relative strength of those threats, and make all possible defenses. But Rob seems to say that if one does not do this, then one is contributing to the weakening of religious liberty. That imposes a very high standard on people to perceive accurately the quality of all threats and defend religious liberty accordingly. Otherwise they are weakening religious freedom.
  2. Global context: Rob may not have been saying this, but I also do not agree that Americans should recognize that discrimination and persecution of Christians is, at least as a global phenomenon, of lesser importance or significance or urgency than discrimination against other religious groups. In fact, if anything it is secular Americans, not Evangelical Christians, who fundamentally misperceive where the most potent threats to religious freedom are aimed. Those threats are aimed at Christians in the Mideast. The American political regime that preceded this one consistently, almost willfully, misperceived that threat to religious freedom. Many American Christians seem not to perceive the atrocities that have been and are occurring to their co-religionists, and that my colleague, Mark Movsesian (among others), has documented. But I am not sure that I blame them for this. Here again, I revert to the first point of disagreement. It will be very difficult to protect religious freedom if every person has to accurately assess the relative strength of various threats to religious freedom and protect them in corresponding proportion. Whose metrics will be used? What happens when we disagree about the relative power of the threats? Is it not better to allow for different constituencies to emphasize and advocate for different problem issues? Is it not a more realistic approach that might result in the collective strengthening of religious freedom?
  3. Just Wait Until It's Worse!: Finally, I disagree with an implication of Rob's post: that until Christians in this country have it as bad as other constituencies, they need to recognize their own relatively insignificant lot and wait for things to get worse before they can really start to complain. Rob almost certainly did not mean to say this, but the argument he makes reminds me very much of the 'now that's real persecution' style of argument. It is of course true that people ought to be concerned with severe violations of religious freedom. But I do not think it is true that people ought to measure or evaluate the state of their own religious freedom only by comparison with its worst violations. There is inevitably a kind of recursion to the lowest common denominator in these kinds of arguments, a suggestion that until American Christians endure the same sorts of threats as others, they are just "whining." I must say that this argument (as I've written before) has always been mysterious and borderline perverse to me. Assuming the threats to religious liberty (as in point 1) to be of differential urgency, why is it necessary for those threats to become much, much worse before we will acknowledge their legitimacy?

UPDATE: Apropos, an interesting column by Damon Linker today on the very subject of "Why so many conservative Christians feel like a persecuted minority."

March 13, 2017 in DeGirolami, Marc | Permalink

Sunday, March 12, 2017

Religious liberty and the Christian (pop) culture of persecution

I grew up listening to Christian rock -- Larry Norman, Randy Stonehill, the 77s, Jerusalem, etc. -- and one notable theme throughout the genre is that Christians are separate from the world.  There are upsides to being formed in this worldview (an emphasis on holiness and courage) and big downsides (a lack of accountability for the common good and a tendency to see persecution around every corner).  By the time DC Talk hit it big in the 1990s, I was not listening to much Christian rock, but the group apparently embraced the theme with gusto. 

Julia Marley, writing for Commonweal, has a fascinating take on how DC Talk's smash hit "Jesus Freak" might have helped shape today's pro-Trump evangelical mindset:

“Jesus Freak” articulated the way the evangelical church thought of itself: marginal, scorned by mainstream culture, and, importantly, the victim of violence rather than its agent. The song’s speaker aligns himself with two characters. The first is a shirtless street preacher with “Jesus Saves” tattooed on his stomach, who we can assume disturbs the people he attempts to convert—we’ve all passed such a street preacher, careful to avoid eye contact. The second character is John the Baptist, who is also scorned. “The words that he spoke made the people assume / There wasn’t too much left in the upper room,” the song continues. But John had more to deal with than an audience rolling its eyes: Herod has him executed. Here lies the crucial sleight-of-hand of the song: we move seamlessly from a man who presumably retains the freedoms of speech and religion (even if his audience ridicules him), to a man assassinated by the state for expressing his religious beliefs. The song conflates criticism of Christianity with the persecution of Christianity. It elevates the eccentric to the status of martyr.

When I was probably 8 years old, I remember a playmate -- a Catholic no less! -- calling me "a church weirdo" because my family attended services three times each week (twice on Sundays, once on Wednesdays).  It was a cruel and careless comment, but in my mind, it fed directly into the other messages I was hearing about the Christian life being one marked by persecution of the martyrdom sort.  It contributed to a sense of being separate, shunned, and targeted.  That's a lot to place on a single comment from an 8 year-old, but that's how narratives are reinforced from one generation to the next. 

I think Julia Marley ends up overstating her case when she argues that "[c]onservative Christians see religious pluralism—and the state’s reflection of that pluralism—as encroaching on their right to practice their own faith."  In many cases, conservative Christians are not objecting to the fact of religious pluralism -- they're objecting to the imposition of a secular orthodoxy that does make the practice of their faith more difficult, at least when the implications of their faith extend to the public square.  

Still, Marley makes an important point to the extent that the evangelical subculture has proved to be fertile ground for political messages that elevate the persecuted status of American Christians beyond what any reasonable interpretation of the facts warrant and that -- even more dangerously -- pushes concern about discrimination against non-Christians to the margins.  This was borne out in the results of a recent survey:

Overall, people were twice as likely to say Muslims face discrimination as they were to say the same thing about Christians. Democrats were four times more likely to see Muslim vs. Christian discrimination, and non-religious people more than three. White Catholics and white mainline Protestants were both in line with the American average: Each group was roughly twice as likely to say Muslims face discrimination compared to how they see the Christian experience.

 

The people who stuck out, whose perceptions were radically different from others in the survey, were white evangelical Protestants. Among this group, 57 percent said there’s a lot of discrimination against Christians in the U.S. today. Only 44 percent said the same thing about Muslims. They were the only religious group more likely to believe Christians face discrimination compared to Muslims.

Why should we care?  Because religious liberty is only as strong as the degree to which it protects the most vulnerable among us.  If millions of Americans who (should) care deeply about religious liberty fundamentally misperceive where the most potent threats are aimed, religious liberty for all is on shaky ground.  This is an argument that some conservative Christians are championing -- Robby George and Russell Moore are two leading examples -- but it faces an uphill climb, in part because Christians have been hearing about our own persecution for a very long time. 

Christian leaders and scholars need to cultivate a new commitment to discernment: distinguishing between the discomfort of holding increasingly unpopular beliefs and the real persecution that -- thus far, at least -- been far more prevalent in our lyrics than in our legal system.  

March 12, 2017 in Vischer, Rob | Permalink

Saturday, March 11, 2017

How countercultural can a Catholic university be?

In the current issue of The Hedgehog Review, Chad Wellmon has an essay titled "Whatever Happened to General Education?" that is worth your time.  He uses his experience chairing a University of Virginia curricular reform committee as a lens through which to view the history of general education in America, tracing back to the late nineteenth century.  He wants to answer this basic question:

Since at least 2000, faculty at several universities—including Harvard, Stanford, and William and Mary—have attempted to reform their curricula. They have issued reports lamenting the lack of a coherent, common experience and the absence of a shared intellectual project. Yet many of these reports have had a negligible impact, whether because of delayed votes, infinitely reconstituted committees, or faculty exhaustion. Why?

I'll let you judge the persuasiveness of his answer(s), but this paragraph jumped out at me as particularly depressing, in which he discusses the work of Thorstein Veblen, a sociologist who dismissed American universities as "little more than 'competitive businesses'" as far back as 1918:

It remains to be seen what will become of UVA’s proposed curriculum. Veblen had little confidence that universities could reform themselves, not because he considered faculty members institutionally inept or the “captains of erudition” brilliantly conniving. He doubted the possibility of change because he doubted that American culture could change. “The popular sentiment,” he wrote, fully embraced the notion that “businesslike administration [was] the only sane rule to be followed in any human enterprise.” The broader culture didn’t have the ethical resources to imagine goods and ends that were not simply economic. And, so, absent other moral imaginations, the practices and virtues that had come to organize and sustain universities were those of businesses whose only good was economic utility.

In the constant struggle to maintain the institutional integrity of Catholic colleges and universities, we often hear the diminishment of meaningful Catholic identity framed in terms of a failure of leadership or lack of will on the part of the faculty.  Those might be immediate causes, but they should not distract from the deeper question: To what extent can any institution that depends on the surrounding culture chart an entirely different course than the surrounding culture?  If American culture lacked the requisite non-economic moral imagination a century ago, are we any more confident in our prospects today?  Even working in a meaningfully Catholic law school, many of our mission-driven decisions will, at some point, require translation into utilitarian terms in order to ensure that they gain traction with a broad set of stakeholders.  Especially when a university reaches a certain size of operation and scale of aspiration, can the hoped-for impact of our work truly run counter to culture?  Or are we better understood as being shaped and carried by culture, all the while looking for opportunities to nudge culture in ways that are shaped by our founding missions (the interpretation of which is, almost invariably, shaped by the broader culture)?  If so, does the Catholic higher education project remain worthwhile, or is it time to reject the accrediting agencies and retreat to the catacombs to begin teaching by the candlelight of a more deliberately and rigidly defined subculture? (My quick answer to cut the suspense: yes, the project remains worthwhile, though that answer may not hold for all time and every place.)

This is not a new conversation for MoJ, but it may bear revisiting at this cultural moment. In full disclosure, my reaction to the Wellmon essay was undoubtedly influenced by the fact that I read it soon after reading several reviews of Rod Dreher's The Benedict Option - a book I have not yet read but will.  More to come.

March 11, 2017 in Vischer, Rob | Permalink

Friday, March 10, 2017

Was Sally Yates relying on Ronald Dworkin? If so, is that a problem?

Brad Wendel has posted a critique of Sally Yates' justification for her decision not to enforce the Trump administration's travel ban.  An excerpt:

Whether the order is lawful will be determined by the courts. What interests me, as a scholar of legal ethics and jurisprudence, is whether Yates got it right when she said the responsibility of a lawyer for the government is to seek justice and stand for what is right, and that the position of the Department of Justice should be informed by the lawyer’s best view of the law. Yates’s claim that legal advisor should be informed by the best view of the law sounds very much like the position of Ronald Dworkin, who argued that a judge should determine the legal rights and duties of the litigants by constructing the best possible interpretation of the principles of justice, fairness, and procedural due process, considered from the standpoint of the community’s political morality. The interpretation must fit with past legal decisions, but the judge’s aim is also to show the community’s legal practices in their best moral light.  I do not know whether Yates was thinking about Dworkin when she wrote her letter, but I wish to use this essay to seek to persuade legal advisors – whether to the government or a private client – that their role is not to construct an interpretation of the law that represents the best constructive interpretation of political morality.

Wendel's scholarship is always worth reading, and this essay is no exception.  In previous work, I've pushed back a bit on his recurrent thesis that a lawyer's duty of loyalty to the client is vindicated through the lawyer's duty of loyalty to the law, period.  My core concern with Wendel's approach is that our focus on the client as a citizen may obscure a view of the client as a person, though the dynamics are a little different in the context of a government lawyer, and I share his misgivings about Yates' explanation.  If you're interested, you can read a fuller explanation of my reservations with Wendel's approach here.

March 10, 2017 in Vischer, Rob | Permalink

Tuesday, March 7, 2017

The Felix Culpa in Constitutional Theory

"Felix Culpa" is a theological idea, according to which man's Fall through disobedience to God was a "happy fault." God in his providence, by means of the Incarnation and the Resurrection, brought forth out of the wreckage of the Fall a new creation, greater still than the old. Absent the Fall, the summit of felicity might never have been attained.

Whether or not this is good theology is controverted. C.S. Lewis for one thought it was not, arguing in his letters that unfallen man might have enjoyed felicities unimaginable to us, and greater still. On the greater authority of St. Augustine, however, it is plausible that "God judged it better to bring good out of evil than not to permit any evil to exist.”

Whatever its theological merits, the Felix Culpa is nonetheless full of interest for constitutional theory. Given that, as Carl Schmitt taught us, constitutional theory is sublimated theology, one wonders whether there are constitutional analogues to the Felix Culpa.

The structure would have to look as follows. A constitutional Felix Culpa argument would have to show (1) a serious constitutional mistake or error at Time 1 (according to some suitably specified theory); (2) a correction or undoing of that error at Time 2; (3) such that the state of constitutional law and political culture at Time 2-or-later is superior overall (according to some suitably specified theory) to the state that would have obtained at Time 2-or-later if the mistake at Time 1 had never occurred. (Nota bene: the comparison is not to "the state that would have obtained at Time 1 had the mistake never occurred." One wants to compare the long-run consequences of the world with and without the original mistake).

The content of the normative theory -- used at Steps (1) and (3) to identify a mistake and to compare states of the law -- is, I think, irrelevant to the structure of the Felix Culpa argument, which would be the same no matter what the specifics of the underlying normative theory. The key to the constitutional Felix Culpa argument is that the package of mistake-plus-repudiation or mistake-plus-correction yields a better state than would have obtained absent the mistake. It is thus an intertemporal relative of the general theory of second-best, but I will not pursue that connection here.

In an entirely speculative spirit, I offer a few possible examples below. (I include examples from administrative law, which is sublimated constitutional law just as constitutional law is sublimated theology). Let me add the obvious but essential disclaimers: I don't necessarily believe any of these examples to be correct, although some of them might be. In some of the cases, I don't necessarily believe that the Time 1 mistakes really are such (although some of them surely are), but rather I assume so for the sake of getting the idea off the ground. Finally, none of this is intended to minimize the gravity of the Time 1 mistakes. The theological Felix Culpa does not minimize the seriousness of the Fall, nor does it claim that the Fall was somehow a good thing. Rather it is intended as a testament to God's power that even out of grave evil, He can fashion a greater good.

(1) Korematsu and later: Perhaps Korematsu and its aftermath constitute a genuine Felix Culpa. Absent Korematsu, the statutory and symbolic repudiation of Korematsu by Congress, and by the near-unanimous consensus of the legal profession, would never have occurred. That repudiation plausibly conduces to put ethnic minorities, including immigrants who are also ethnic minorities, in a stronger constitutional and cultural position today than they would occupy if the Korematsu episode had never taken place at all.

(2) Lochner and later: Absent the Court's overreach in Lochner, there would be no standing symbol of the epistemological arrogance of the judiciary, a symbol that is often used to name and shame judges who would do the same under different circumstances. Perhaps those collateral benefits are so great that that the mistakes of the Old Court amount to happy faults.

(3) Hybrid rulemaking, and the Paralyzed Veterans doctrine: absent those mistaken doctrines of administrative law, which were impossible to square with the text and structure of the Administrative Procedure Act, we would lack the ringing repudiations in Vermont Yankee and Perez v. Mortgage Bankers respectively. Given that those two decisions clarify the deep principles of administrative law in ways that are useful in all sorts of other settings, it is plausible that the state of the law is now better than if those mistakes had been avoided in the first place.

(4) If Chevron were ever overruled, its critics might nonetheless see the invisible hand of Providence at work, Felix Culpa-style, in the overall history of the Chevron episode. As compared to the state of the law pre-Chevron, which featured competing lines of caselaw, some deferential and some not, it might be that Chevron-plus-eventual-repudiation yields a clearer and indeed (on certain premises, which I don't share) better state of the law than would have obtained if Chevron had never been decided in the first place.

Are all or any of these unconvincing? Other possible examples?

March 7, 2017 | Permalink

Monday, March 6, 2017

What's wrong with this picture?

Notice anything odd about this screenshot from a few minutes ago?

Hint: Does MOJ believe you should donate to Planned Parenthood to "Save Roe"? (I guess "Save Casey" or "Save Whole Woman's Health" doesn't have the same cachet?)

Save Roe MOJ Screenshot

I wonder what it was in my browsing history or whatever else Google has learned about me that makes me on MOJ a good target for the "Save Roe" ad. They got the supermarket ad right, after all. Kroger is our supermarket of choice in these parts of suburban Richmond.

We'll have to figure out if there's a way for MOJ to avoid being a billboard for Planned Parenthood. In the meantime, here's a podcast that explains why it might not be so good for you to let the "attention media" services use your Facebook and Twitter and other of your feeds that are really theirs as mobile billboards either. This episode of the Federalist Radio Hour features Cal Newport, author of Deep Work.

March 6, 2017 in Walsh, Kevin | Permalink

Sunday, March 5, 2017

How can we revive political trust?

I've been thinking about the challenges presented by Americans' diminishing trust in institutions - a trend that has been accelerated by our President's troubling brand of conspiracy-fueled populist narcissism.  As The Economist observed in December, Trump succeeded as a candidate by "systematically undermining trust in any figure or institution that seemed to stand in his way," and as President, his best chance for political survival is to keep fomenting cynicism on a "destructive mission to make America less like Sweden and more like Sicily."

But the decline of trust goes much deeper than Trump's rise. Bill Bishop makes this point in today's Washington Post, arguing that there isn't much that can be done to reverse course:

Everything about modern life works against community and trust. Globalization and urbanization put people in touch with the different and the novel. Our economy rewards initiative over conformity, so that the weight of convention and tradition doesn’t squelch the latest gizmo from coming to the attention of the next Bill Gates. Whereas parents in the 1920s said it was most important for their children to be obedient, that quality has declined in importance, replaced by a desire for independence and autonomy. Widespread education gives people the tools to make up their own minds. And technology offers everyone the chance to be one’s own reporter, broadcaster and commentator.

 

We have become, in Polish sociologist Zygmunt Bauman’s description, “artists of our own lives,” ignoring authorities and booting traditions while turning power over to the self. The shift in outlook has been all-encompassing. It has changed the purpose of marriage (once a practical arrangement, now a means of personal fulfillment). It has altered the relationship between citizens and the state (an all-volunteer fighting force replacing the military draft). It has transformed the understanding of art (craftsmanship and assessment are out; free-range creativity and self-promotion are in). It has even inverted the orders of humanity and divinity (instead of obeying a god, now we choose one).

Like my MoJ colleagues and other advocates of Catholic social teaching, my reflex is to jump in and supplement Bishop's gloomy analysis with a reference to civil society. My own work in the area has been premised, at least in part, on civil society's importance as a wellspring of the type of trust on which our political community depends.  But what if we're wrong?

Calvin College prof Kevn den Dulk offers a provocative essay in the current issue of Comment in which he argues that we cannot assume "that political trust will flow inevitably out of the ordinary work of churches and soccer leagues." He explains:

[T]he empirical evidence that social trust breeds trust in government is largely non-existent. Some studies even suggest the influence might flow more clearly in the other direction: Political trust—confidence in the reliability, openness, responsiveness, and fairness of government— often acts as a precondition for social trust, not the other way around.

The revival of political trust is a separate challenge from the revival of civil society, in his account.  So what does Catholic social teaching have to offer as a path forward for restoring trust among citizens as citizens?  What do we as Catholic legal theorists have to offer?

March 5, 2017 in Vischer, Rob | Permalink

Saturday, March 4, 2017

Should a Catholic university honor President Trump?

Notre Dame has decided to invite Vice President Pence to speak at the university’s commencement ceremony and receive an honorary degree. I agree with Rick that extending this honor is appropriate for a Catholic university.

Honoring President Trump would present a much thornier dilemma. I don’t believe that Trump’s stated policy positions necessarily preclude an honor even though some positions conflict directly with Church teaching.  The concern surrounding the bestowal of these widely publicized honors is that they create muddled institutional messages.  The potential harm stems from confusion caused by the honor.  As the Catechism puts it, the sin of scandal refers to “an attitude or behavior which leads another to do evil,” and typically “operates by giving a bad example.”

If muddled messages are the concern, then the analysis has to be contextual, as I argued in an essay I wrote after Notre Dame’s decision to honor President Obama. Checking a box on a particular issue does not, standing alone, determine the appropriateness of the honor.  The university must weigh whether the honor “would amount to a surrendering of [its] public witness.”  It may not be enough to point to the honoree’s views on a single issue.  Even when an honoree rejects Church teaching on an essential matter such as abortion, “there are many instances where the honor is unlikely to amount to ‘scandal’ because the honoree is overwhelmingly associated with work through which the Gospel is proclaimed.”  Context matters.

Context makes it more difficult for a Catholic university to honor President Trump without creating muddled institutional messages, but not because he espouses more positions that are contrary to Church teaching than past Presidents have. (Reasonable Catholics can argue about that.)  Rather, the more dangerous confusion arises from the fact that his words and actions reflect an absence – indeed, a deliberate rejection – of the virtues that Catholic universities seek to impart to their students.  While we all fall short, we have not witnessed a President in recent memory who so enthusiastically celebrates what Catholics (and previous generations of Americans) would have viewed as personal shortcomings; President Trump appears not to see them as shortcomings at all. 

Consider the cardinal virtues: prudence, justice, fortitude, and temperance. Or recall the fruits of the Spirit: charity, joy, peace, patience, kindness, goodness, generosity, gentleness, faithfulness, modesty, self-control, and chastity. Now consider the qualities that our President seeks to cultivate in himself and others.  Even in his visit to a Catholic elementary school yesterday, President Trump encouraged one young student to get rich and two others to become famous (by getting their photos taken with the President).  Minor episodes, to be sure, but part of a consistent pattern over the decades.  Even the President’s supporters defended a widely perceived lack of “character” on the part of their chosen candidate by insisting that the country needs a strong leader, “not a Sunday school teacher.”  Very few defend our President as virtuous, of strong character, or exhibiting “the fruits of the Spirit.”  For some supporters, it is this absence of virtue that makes him appealing – the ability to do what needs to be done without worrying about social niceties.  His rejection of traditional virtues is not an afterthought -- it was core to his candidacy, and it is an inescapable dimension of his public reputation as President.

Is this something that a Catholic university can overlook? I recommend, to cite but one of many illuminating examples, Catholic University President John Garvey’s remarks on the dangers of separating the cultivation of intellect from the cultivation of moral virtue in the mission of Catholic higher education. If Catholic universities are called to guard their public witness by avoiding muddled institutional messages, an honoree’s publicly known indications of character are as relevant as the honoree’s publicly known policy positions.  As such, Catholic universities should think twice before honoring President Trump.

March 4, 2017 in Vischer, Rob | Permalink

Friday, March 3, 2017

Vice President Pence to be Notre Dame's Commencement Speaker

The University of Notre Dame has announced that Vice President Pence will speak at this year's commencement (and receive an honorary degree).  There had been a lot of debate, petitioning, etc., in anticipation of the possibility that the speaker and honoree this year would be President Trump.

Time flies:  I cannot believe it's been almost 8 years since I wrote, in USA Today, to express (civilly, I hope) my regret and disappointment over the decision to honor then-newly-elected President Obama at Notre Dame's graduation.  A little bit later, I wrote this short essay, "Whom Should a Catholic University Honor?  Speaking with Integrity." 

I am not among those who wanted Notre Dame to invite, or thought Notre Dame should invite, President Trump.  Like it did to Fr. Jenkins, it seemed (and seems) to me that such an invitation would unfairly disrupt the students' graduation.  Whether or not all of the high-octane, across-the-board opposition to President Trump is warranted (yet), it is simply a fact that his presence and speaking here would be very disruptive and disturbing to many.  And, I didn't see that it would somehow "make up" for the honoring of President Obama (which I continue to think was unwarranted -- the honoring, that is) to honor President Trump.  Invite him to speak, some time, but, in my view, there's no justification for honoring him.  

Some will, I'm sure, protest Vice President Pence's invitation, and some will do so for reasons that, in my view, are reasons to appreciate and respect his service (e.g., he supported and I think is sincerely committed to school choice, abortion regulation, and religious freedom in Indiana -- notwithstanding misleading, inaccurate, and unfair attacks).  I did not agree with the (failed) effort to prevent refugees from being resettled in Indiana, but -- in my view -- that effort does not, on balance, make the invitation inappropriate for a meaningfully Catholic university.  I think I've come to the view that we should abandon the business of giving honorary degrees to commencement speakers -- or, at least, to elected officials -- but, since we have not, I am inclined to think that Notre Dame made a good decision, both in not awarding an honorary degree to the President and in inviting the Vice President to be the speaker.

March 3, 2017 in Garnett, Rick | Permalink

Wednesday, March 1, 2017

Why should Catholics care about the LSC's fate?

As you may know, current drafts of the Trump administration's budget proposal call for the elimination of the Legal Services Corporation, the primary funding agency for civil legal aid in this country.  Here's an excerpt from an op-ed I published in yesterday's Minneapolis Star-Tribune making the case for why President Trump should be a champion of civil legal aid:

The working poor who voted for Donald Trump weren’t looking for a handout — they were looking for a voice. Legal aid attorneys have been a voice for the voiceless for decades, enabling those on society’s margins to stay in their homes, with their kids, and in their jobs. In upending the establishment, Trump voters asked for a champion. Working with Congress to maintain support for legal aid is one way for our new president to show that he was listening.

The future of the LSC should be of particular concern to those who take Catholic social teaching seriously. As Saint John Paul II explained, “Love for others, and in the first place love for the poor, in whom the Church sees Christ himself, is made concrete in the promotion of justice.” (Centesimus annus ¶ 58)  Closing our nation's justice gap depends on support from state and local governments, law firms, law schools, foundations, and a broad spectrum of private philanthropy.  The LSC’s support, however, is irreplaceable, not just as a matter of practical reality, but as an affirmation of our political community’s properly formed priorities. The Church teaches that the state is responsible to cultivate the conditions by which “the common good may be attained by the contribution of every citizen.” (Compendium of the Social Doctrine of the Church ¶168) By helping ensure access to our justice system, the LSC empowers individuals and families to contribute to the common good. 

Now is the time to speak up on behalf of the LSC's vital contributions to our society. 

March 1, 2017 in Vischer, Rob | Permalink

Tuesday, February 28, 2017

The Washington florist case: is Jim Crow the best analogy?

I've written an essay for America magazine on the Washington Supreme Court's recent ruling rejecting a florist's claims that the Constitution shields her from being compelled by the state to provide flowers for a same-sex wedding ceremony.  I continue to think that the legislature needs to do the heavy lifting if we're going to navigate the tensions between religious liberty and anti-discrimination norms, but the Washington Supreme Court's reasoning leaves plenty to be desired.  For example, the Court approvingly quoted the customer's brief that “[t]his case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches."  Here's a responsive excerpt from my essay:

Well, the 1960s civil rights cases were not just about access to sandwiches. They were about access to sandwiches and housing and jobs and schools and parks and water fountains and voting booths and transportation and so much else. Jim Crow was a tightly woven web of laws and social norms aimed at the systemic oppression and subjugation of blacks; the harms were not going to be remedied by either legislators or judges wielding scalpels. The 1960s civil rights laws were sledgehammers, as they needed to be.

Fast-forward to 2013 and the debate over the nature of marriage. Once the news broke that Mr. Ingersoll and Mr. Sneed had been turned away by Ms. Stutzman, several florists offered to provide flowers for their wedding free of charge. If our legal system lacks the capacity to acknowledge a meaningful difference between Ms. Stutzman’s denial of flowers and the treatment of blacks under Jim Crow, the liberty of conscience is headed for a very rough ride.

February 28, 2017 in Vischer, Rob | Permalink

An Atheist and a Monk Discuss Church-State Separation and the Justification of Punishment

In preparation for an upcoming conference on Russian traditionalism, I thought it was a good moment to pick up Dotoyevsky's "The Brothers Karamazov." In a fairly early part of the book, I came across the following incredible exchange between Ivan Karamazov and the Orthodox monk "Elder," Father Zossima, concerning the separation of church and state and its effect on the justification of criminal punishment. It's as interesting and useful a reflection (particularly by the monk) on these issues as one can find anywhere:

"If everything became the Church, the Church would exclude all the criminal and the disobedient, and would not cut off their hands," Ivan went on. "I ask you, what would become of the excluded? He would be cut off then, not only from men, as now, but from Christ. By his crime he would have transgressed not only against men but against the Church of Christ. This is so even now, of course, strictly speaking, but it is not clearly enunciated, and very, very often the criminal of today compromises with his conscience: 'I steal,' he says, 'but I don't go against Church. I'm not an enemy of Christ.' That's what the criminal of today is continually saying to himself, but when the Church takes the place of the State it will be difficult for him, in opposition to the Church all over the world, to say: 'All men are mistaken, all in error, all mankind are the false Church. I, a thief and murderer, am the only true Christian Church.' It will be very difficult to say this to himself; it requires a rare combination of unusual circumstances. Now, on the other side, take the Church's own view of crime: is it not bound to renounce the present almost pagan attitude, and to change from a mechanical cutting off of its tainted member for the preservation of society, as at present, into completely and honestly adopting the idea of the regeneration of the man, and of his reformation and salvation?"

....

"Yes, but you know in reality it is so now," said the elder suddenly, and all turned to him at once. "If it were not for the Church of Christ there would be nothing to restrain the criminal from evil-doing, no real chastisement for it afterwards; none, that is, but the mechanical punishment spoken of just now, which in the majority of cases only embitters the heart; and not the real punishment, the only effectual one, the only deterrent and softening one, which lies in the recognition of sin by conscience....

"[A]ll these sentences to exile with hard labor, and formerly with flogging also, reform no one, and what's more deter hardly a single criminal, and the number of crimes does not diminish but is continually on the increase....Consequently the security of society is not preserved, for, although the obnoxious member is mechanically cut off and sent far away out of sight, another criminal always comes to take his place at once, and often two of them. If anything does preserve society, even in our time, and does regenerate and transform the criminal, it is only the law of Christ speaking in his conscience. It is only by recognizing his wrongdoing as a son of a Christian society--that is, of the Church--that he recognizes his sin against society--that is, against the Church. So that it is only against the Church, and not against the State, that the criminal of today can recognize that he has sinned. If society, as a Church, had jurisdiction then it would know whom to bring back from exclusion and to reunite to itself. Now the Church having no real jurisdiction, but only the power of moral condemnation, withdraws of her own accord from punishing the criminal actively. She does not excommunicate him but simply persists in fatherly exhortation of him. What is more, the Church even tries to preserve all Christian communion with the criminal. She admits him to church services, to the holy sacrament, gives him alms, and treats him more as a captive than as a convict. And what would become of the criminal, O Lord, if even the Christian society--that is, the Church--were to reject him even as the civil law rejects him and cuts him off? What would become of him if the Church punished him with her excommunication as the direct consequence of the secular law?

"There could be no more terrible despair, at least for a Russian criminal, for Russian criminals still have faith. Though, who knows, perhaps then a fearful thing would happen, perhaps the despairing heart of the criminal would lose its faith and then what would become of him? But the Church, like a tender, loving mother, holds aloof from active punishment herself, as the sinner is too severely punished already by the civil law, and there must be at least someone to have pity on him. The Church holds aloof, above all, because its judgment is the only one that contains the truth, and therefore cannot practically and morally be united to any other judgment even as a temporary compromise. She can enter into no compact about that. The foreign criminal, they say, rarely repents, for the very doctrines of today confirm him in the idea that his crime is not a crime, but only a reaction against an unjustly oppressive force. Society cuts him off completely by a force that triumphs over him mechanically and (so at least they say of themselves in Europe) accompanies this exclusion with hatred, forgetfulness, and the most profound indifference as to the ultimate fate of the erring brother. In this way, it all takes place without the compassionate intervention of the Church, for in many cases there are no churches there at all, for though ecclesiastics and splendid church buildings remain, the churches themselves have long ago striven to pass from Church into State and to disappear in it completely. So it seems at least in the Lutheran countries. As for Rome, it was proclaimed a State instead of a Church a thousand years ago. And so the criminal is no longer conscious of being a member of the Church, and sinks into despair. If he returns to society, often it is with such hatred that society itself instinctively cuts him off. You can judge for yourself how it must end....

"What was said here just now is true too, that is, that if the jurisdiction of the Church were introduced in practice in its full force, that is, if the whole of the society were changed into the Church, not only the judgment of the Church would have influence on the reformation of the criminal such as it never has now, but possibly also the crimes themselves would be incredibly diminished. And there can be no doubt that the Church would look upon the criminal and the crime of the future in many cases quite differently and would succeed in restoring the excluded, in restraining those who plan evil, and in regenerating the fallen. It is true," said Father Zossima, with a smile, "the Christian society now is not ready and is only resting on some seven righteous men, but as they are never lacking, it will continue still unshaken in expectation of its complete transformation from a society almost heathen in character into a single universal and all-powerful Church. So be it, so be it!"

February 28, 2017 in DeGirolami, Marc | Permalink

Monday, February 27, 2017

Danish Blasphemy Prosecution for Koran Burning

Here's a fascinating story in the New York Times about a prosecution in Denmark for blasphemy, against a man who burned a Koran and posted his burning to Facebook. It seems that blasphemy laws remain on the Danish books, notwithstanding that the country is, by all accounts, very secular. Though the decision to charge was made at the local level, it has been ratified by Denmark's attorney general.  

No one has been convicted under the Danish blasphemy laws since 1946, when the law was used to prosecute a man who dressed up as a priest and mock "baptized" a doll.

A few thoughts:

1. Apparently the defendant had been charged initially with a "hate speech" crime, but the charge was subsequently changed to blasphemy. Perhaps hate speech is a lesser included offense? The linear continuity of hate speech with blasphemy is itself worthy of a separate article. Indeed, as I have argued at length, but as Tocqueville said more pithily, freedom never governs without faith. The only real question for a society that enjoys some speech protections is for what ends speech will be restricted, not whether it will restrict it at all. Of course, it will. And it seems altogether natural that the proscription on hate speech would in the end find its fullest and most complete expression in the zealotry (I use the term neutrally) of an anti-blasphemy law. (Parenthetically, the man also stated that he hated children. That seems rather sweeping, and perhaps worthy of its own hate speech prosecution. Perhaps if he had said, "I hate some children," one might be more sympathetic.)

2. Denmark of course has a recent history of conflict with Islam, as in the infamous Mohammed cartoon incident about 10 years ago that resulted in no charges, and, as the story says, "deadly riots, attacks on Danish embassies in the Middle East and a trade boycott against Denmark." Perhaps, for these and other reasons, Denmark has come to a different conclusion today. Still, it's clear from the story that the burning of a Bible is legal, since in 1997 a Danish artist burned a copy of the Bible on television and nobody batted an eye. Perhaps what Denmark really needs is to refine its blasphemy laws--to give more detailed guidance about which religious texts may be defiled with impunity and which must be let alone. One thing that Denmark should not do: abandon blasphemy laws. It will only send such laws underground, and similar policies will be enforced through other means without the honesty of calling them what they are (vide, e.g., hate speech).

3.  The defendant's lawyer seems to be making the utterly bizarre claim that the man acted in "self-defense" in burning the Koran, because the Koran contains language about how Mohammed's followers "must kill the infidel." I don't know the Danish law of self-defense, but this strikes me as a highly unusual principle of proportionality. But I suppose we need to know about the physical assaults committed by the Koran on this poor man in order properly to judge the self-defense claim.

4. Don't miss the wonderful comments of Professor Per Mouritsen, who with one side of his mouth tells us that "blasphemy law is a thing of the past" and with the other tells the Times that in Denmark, "the very idea that religion is taken seriously is the antithesis of being a good citizen." Perhaps Denmark should adopt laws authorizing the state-enforced (but nondiscriminatory, of course) burning of all holy books. It could be done on a state holiday. Call it "Conflagration Sunday." 

February 27, 2017 in DeGirolami, Marc | Permalink

Saturday, February 25, 2017

Should Catholic parishes join the sanctuary movement?

With the Trump administration’s expansion of deportation efforts, there is increasing talk of churches stepping up to serve as “sanctuaries” for undocumented immigrants. With many Catholics suspecting that “the current policies of the administration toward immigrants and refugees is at odds with the clear command of the scriptures to welcome the vulnerable stranger,” Charles Camosy points out that it may become necessary for Catholic parishes to risk fines and prosecution by protecting those subject to deportation. As NPR reports (in a story featuring expert insight from our own Rick Garnett), this clash is already becoming a reality.

This re-emergence of the sanctuary movement raises an important but difficult question: When is it appropriate for the Catholic Church to defy the law? I believe that there may be circumstances over the next four years in which defiance is justified, even obligatory.  But given the Church's support for the rule of law, those circumstances must be articulated with specificity, humility, and restraint.

The “sanctuary” label is thrown around loosely in our current debates. I’m not talking about material support for undocumented immigrants – that is, to me, a clear obligation for Christians that does not turn on one’s immigration status. That’s why past efforts to criminalize the provision of such support were roundly and rightly condemned by bishops. 

I’m referring instead to the provision of shelter to undocumented immigrants for the express purpose of preventing their deportation. Churches have no legal authority to prevent deportation of someone who has sought sanctuary on church property (and never have, in the U.S. at least); any prevention power comes from the understandable reluctance of government agents to carry out enforcement actions on church property or from making it more difficult to find individuals subject to deportation by utilizing church-centered networks of concealment.

As fans of Victor Hugo know, European churches functioned as sanctuaries in a more formal, jurisdictional sense. In my understanding, though, entry into the church was not a permanent shield from the law, but simply a temporary respite during which time the church might intervene on the individual’s behalf or the individual was expected to choose whether to turn himself over to the temporal authorities or leave the country.  It was not a blanket escape from the law’s reach.

More recently, American churches formed a network of sanctuaries in the 1980s for refugees seeking to escape Central America. This was not a categorical response to the Gospel’s call to welcome the stranger; this was a response to a particular problem: it was nearly impossible for these refugees to gain asylum status because the Reagan administration could not admit that their home countries were committing human rights abuses.  Our law prohibited foreign aid to countries committing such abuses, and we were funding the Salvadoran and Guatemalan governments.  Instead of jeopardizing the aid, the Reagan administration classified the Central Americans as economic migrants.  The churches that defied the law in the 1980s were targeting a particular injustice, not vindicating a more general commitment to welcome the stranger.

Faithful Catholics can reasonably disagree about the prudent contours of our immigration laws. The Church does not teach that all immigration laws – and the enforcement of such laws – are contrary to the moral order and should accordingly be defied as unjust.  The Church does teach that the rule of law is important to human flourishing, and that the legitimacy of the political community’s duly elected leaders should be respected.  As such, those instances when the Gospel supports – or even requires – defiance of the law should be spelled out with care.  Perhaps the grounds for defiance are formed when the federal government would seek to deport a parent with dependent children, or to return an immigrant to a country where her life will be in danger, or to deport a person who arrived her as a child and knows no other home.  Whatever the particulars, my only point is that the particulars matter.  A categorical stance of defiance toward the enforcement of immigration laws strikes me as inconsistent with Church teaching.

February 25, 2017 in Vischer, Rob | Permalink