Tuesday, March 3, 2015
An interesting piece in the New York Times yesterday. The reason provided in the article is that the public school curriculum draws a hard line between value claims (opinions) and other sorts of claims that can be "tested or proven" (facts). I wouldn't think this is solely a feature of the contemporary public school curriculum, or even of our particular moment. Indeed, this kind of critique of early education is familiar from previous periods and cultural settings. See, e.g.:
In their second chapter Gaius and Titius quote the well-known story of Coleridge at the waterfall. You remember that there were two tourists present: that one called it 'sublime' and the other 'pretty'; and that Coleridge mentally endorsed the first judgement and rejected the second with disgust. Gaius and Titius comment as follows: 'When the man said This is sublime, he appeared to be making a remark about the waterfall... Actually ... he was not making a remark about the waterfall, but a remark about his own feelings. What he was saying was really I have feelings associated in my mind with the word "Sublime", or shortly, I have sublime feelings' Here are a good many deep questions settled in a pretty summary fashion. But the authors are not yet finished. They add: 'This confusion is continually present in language as we use it. We appear to be saying something very important about something: and actually we are only saying something about our own feelings.' ....
The schoolboy who reads this passage in The Green Book will believe two propositions: firstly, that all sentences containing a predicate of value are statements about the emotional state of the speaker, and secondly, that all such statements are unimportant. It is true that Gaius and Titius have said neither of these things in so many words. They have treated only one particular predicate of value (sublime) as a word descriptive of the speaker's emotions. The pupils are left to do for themselves the work of extending the same treatment to all predicates of value: and no slightest obstacle to such extension is placed in their way. The authors may or may not desire the extension: they may never have given the question five minutes' serious thought in their lives. I am not concerned with what they desired but with the effect their book will certainly have on the schoolboy's mind. In the same way, they have not said that judgements of value are unimportant. Their words are that we 'appear to be saying something very important' when in reality we are 'only saying something about our own feelings'. No schoolboy will be able to resist the suggestion brought to bear upon him by that word only. I do not mean, of course, that he will make any conscious inference from what he reads to a general philosophical theory that all values are subjective and trivial. The very power of Gaius and Titius depends on the fact that they are dealing with a boy: a boy who thinks he is 'doing' his 'English prep' and has no notion that ethics, theology, and politics are all at stake. It is not a theory they put into his mind, but an assumption, which ten years hence, its origin forgotten and its presence unconscious, will condition him to take one side in a controversy which he has never recognized as a controversy at all. The authors themselves, I suspect, hardly know what they are doing to the boy, and he cannot know what is being done to him.
CS Lewis, The Abolition of Man, Chapter 1 ("Men Without Chests") (1943).
Monday, March 2, 2015
My colleague, Mark Movsesian, and I have a new podcast up on the Supreme Court oral argument last week in EEOC v. Abercrombie & Fitch. We discuss the background of the case, the Tenth Circuit decision, the oral argument, and then we offer some views about the implications for religious accommodation more broadly and predict the outcome.
Sunday, March 1, 2015
My posting today follows a thread developed over the past few days by Professors Rick Garnett and Kevin Walsh. Further catalysts for what I present today are the recent deaths of Professor Charlie Rice and Fathers Richard McBrien and Ted Hesburgh who dedicated their lives to the academy that identifies itself as Catholic. Regardless of personal differences on specific issues, we all share a common project of education that uses the principal modifier Catholic. Regardless of the level of education—be it primary, secondary, tertiary, post-graduate, or professional—the Church has had a long history and therefore a long participation in education. In the present political, social, and legal climates, there has been and will likely continue to be a good deal of discussion about Catholic education as Rick’s and Kevin’s postings inform us.
Recent news items have brought up many facets of the central topic of Catholic education. By way of illustration, these subjects include: the tussles between Archbishop Cordileone of San Francisco and various political, social, and cultural interests based in California and elsewhere; the concerns focused on Notre Dame’s review of the core curriculum and the role of the theology (and perhaps philosophy) requirement(s); the ability of any Catholic institution to hire (and fire) for mission; and, the concession by some institutions (e.g., Creighton and Notre Dame) to grant marital and family benefits to faculty and staff who are in same-sex relationships. As I have indicated, this list is not exhaustive, but it covers some of the more prominent and current controversies intersecting the Catholic institution of education.
Today I argue that these and other controversies emerge from a fundamental misconception of the role of the Church in institutions considered by many as a part of the Church. The list of institutions especially includes educational bodies. One major contributing factor to the existence of these disagreements and disputes is a misunderstanding of Conciliar texts of Vatican II that “the Church has always had the duty of scrutinizing the signs of the times and interpreting them in the light of the Gospel.” (Gaudium et Spes, N. 4) The misconstructions of this phrase have led many to think that the Church needs to conform to contemporary norms rather than to study and evaluate carefully and objectively the claims posed by these modern norms. I subscribe to the latter interpretation which I submit is supported by the use of the word scrutinizing and the phrase interpreting them in the light of the Gospel that appears in Gaudium et Spes (the Latin text reads: per omnes tempus Ecclesiae officium incumbit signa temporum perscrutandi et sub Evangelii luce interpretandi) This provision of Gaudium et Spes recognizes that the Church has a fundamental task of continuing the work begun by our Lord and Savior Jesus Christ who “entered this world to give witness to the truth, to rescue and not to sit in judgment, to serve and not to be served” (opus ipsius continuare Christi, qui in mundum venit ut testimonium perhiberet veritati, ut salvaret, non ut iudicaret, ut ministraret, non ut sibi ministraretur). Much attention has been paid to the idea of “who am I to judge?” uttered by Pope Francis and which is suggested in this last passage quoted from Gaudium et Spes. Pope Francis has indeed been the catalyst of some interesting interpretations about not judging others. But any of us, be we clerical, religious, or lay who are or claim to be disciples of Christ have the sacred trust to evangelize the world in an authentic fashion. The objective of this claim is found in our fundamental prayer taught to us by Jesus: it is God’s will, not mine or yours, that is to be done. Doing the will of God is not judging but acting on the commission our Lord gave to us in Baptism. I shall return to this point later.
But I now return to a central matter that Rick and Kevin have introduced. One way of considering an important issue that they have presented is by asking the question: what makes a Catholic school—regardless of the level of education—Catholic?
Check out this event, featuring Prof. Russell Hittinger, at Lumen Christi, in Chicago. If you can attend, then do!
This lecture will compare the great pontificates that represented two “modern times”: Leo XIII at the end of the 19th century and John Paul II at the end of the 20th. Between Leo’s birth in 1810 to JPII’s death in 2005, the lived experience of these two men encompass all modern times, both secular and ecclesiastical – from Napoleon to the iPhone. What was at stake for the Church over the course of this rapidly changing century? How did the social teaching of these two popes differ in addressing the modern crises of their day?
Picking up on a topic that Michael Moreland addressed a few years ago . . . It's not a surprise, I suppose, that the novel and TV series "Wolf Hall" are popular. Somehow, it had to happen that the Man for All Seasons image of St. Thomas More be torn down. After all, a Catholic who stood up to the overreaching claims of state power, at the cost of his life, could not be allowed to remain a secular hero forever. Still, I hope "Wolf Hall" fans and producers will remember some of the points raised in this piece, about Henry, More, Cromwell, and "the biggest land-grab and asset-strip in English history."
Saturday, February 28, 2015
Prof. Randy Boyagoda is the author of a new biography of Fr. Richard John Neuhaus, A Life in the Public Square. I'm excited to read it. Here is a bit of a preview, which ran the other day in the Wall Street Journal. A taste:
Neuhaus . . . affirmed the core premise of Enlightenment political thought: the differentiation of public authority into separate, autonomous spheres that valued individual rights.
He argued that the strongest support for these rights came from the Judeo-Christian tradition’s foundational conviction: We are made in the image of God. Demanding absolute obedience to political dictates, whether in the name of God or something else, would undo centuries of political progress, and goes against God’s own gift of free will to every human person.
Richard beat me to it, but my friend and colleague Prof. Charles Rice -- a deeply good and generous man -- passed away this week. It's almost as if this Notre Dame Law School legend -- he has probably taught half of our living alumni -- ducked out of the side exit, to avoid making a big scene, overshadowed in the press (though not, I feel confident, among the Heavenly Host) by Fr. Hesburgh's death. (Learn more about his work and life here.)
I first encountered Notre Dame through Charlie. In the 1970s, my father -- then an Alaska lawyer -- attended a seminar at which Charlie presented on defending pro-life protesters. Years later, when I was thinking about law school, Charlie contacted me (I've always assumed at my dad's suggestion) and was (as always) generous and helpful. Later, when I started thinking about the legal academy, some of the most important people who shaped my decision were Charlie and his son-in-law, Seamus Hasson, founder of the Becket Fund and all-around religious-freedom hero.
Charlie was, of course, a titan in the pro-life movement, both locally and nationally. He was also a teacher beloved by many thousands -- some of whom agreed with his politics, many of whom I am sure did not -- who would always go the extra mile to help a student or graduate in any way. He cared much more about decency and solidarity than about prestige and praise. He welcomed me to Notre Dame and supported and encouraged me when I was getting started. He wrote several books and piles of articles for a range of audiences. Often overlooked, unfortunately, is a really good (and prescient!) book he did more than 50 years ago, The Freedom of Association.He was a boxer and a Marine. He helped build a wonderful family. God bless him.
It's really hard to imagine putting the point better. And, talk about timely! Here's Fr. Ted, more than 50 years ago:
Someone asked me recently: "What is the great problem for the Catholic university in our modem pluralistic society?" I was obliged to answer that the modernCatholic university faces a dual problem. First, because everything in a pluralistic society tends to become homogenized, the Catholic university has the temptation to become like all other universities, with theology and philosophy attached to the academic body like a kind of vermiform appendix, a vestigial remnant, neither useful nor decorative, a relic of the past. If this happens, the Catholic university may indeed become a great university, but it will not be a Catholic university.
The second problem involves understanding that while our society is called religiously pluralistic, it is in fact, and more realistically, secularistic—with theology and philosophy relegated to a position of neglect or, worse, irrelevance. Against this strong tide, the Catholic university must demonstrate that all the human problems which it studies are at base philosophical and theological, since they relate ultimately to the nature and destiny of man. The Catholic university must strive mightily to understand the philosophical and theological dimensions of the modern problems that face man today, and once these dimensions are understood, it must show the relevance of the philosophical and theological approach if adequate solutions are to be found for these problems.
I second Rick's evaluations of the comments on the importance of theology in the core curriculum at Notre Dame by Cyril O'Regan ("excellent") and Michael Sean Winters ("very thoughtful and wide-ranging"). I'll add John Cavadini's essay (linked by Winters): "Why Study God? The Role of Theology at a Catholic University." If one accepts Cavadini's description of the significance of a theology department in a university, it should follow that at least one theology course must be part of the required course of study if any course is to part of a required course of study. Cavadini writes:
[A] university community that accepts in its midst a theology department is not different simply because it accepts one more discipline than secular universities do. In accepting that discipline, a university isn’t just adding another element to the paradigm already in place at secular universities; it is accepting an altogether different paradigm of the intellectual life—a paradigm of intellectual culture as a dialectic between faith and reason, to use the traditional expression. Having a theology department means accepting a commitment to the intellectual life as oriented toward an “understanding” of something that integrates and transcends all the disciplines. Such an understanding keeps each discipline from closing in on itself and proceeding as if the truths it discovers were incommensurable with the truths discovered by other disciplines. It means openness to a conversation that necessarily transcends each discipline but is not merely “interdisciplinary.” If the disciplines converge at some point, it must be at a point “above” them all, in a discipline that has as its explicit object of study the mystery that transcends all other objects of study. Otherwise one must either force nondisciplinary solutions of questions onto the disciplines (e.g., claiming that faith is an adequate answer to scientific questions), or declare that knowledge is hopelessly fragmented into incommensurate disciplinary truths.
For an intellectual community operating within the paradigm Cavadini describes, it is hard to know what required courses--if any are to be required--should take precedence over courses in the discipline that "has as its explicit object of study the mystery that transcends all other objects of study."
On this subject, I speak from some personal experience, although not the experience of a student who took a required undergraduate course in theology. I did not attend a Catholic university as an undergraduate. As I approached the end of my undergraduate studies, however, I realized something important had been missing from my academic studies. And I sought to remedy that through graduate work in theology.
As an undergraduate at Dartmouth, I was fortunate to be part of a vibrant Catholic community at Aquinas House, where I could learn and grow exposed to the intellectual, personal, and spiritual guidance of chaplains, professors, and peers. But I had nothing in my formal coursework in which the professor by disciplinary commitment was committed to helping me to ask and answer questions about God. I did find professors who could and did help me in that regard (and it helped beyond measure that our lead chaplain had a philosophy Ph.D.), but such help was extra-curricular.
It was not until I pursued graduate study in theology at Notre Dame that "faith seeking understanding" was part of--indeed, precisely the reason for--the formal academic curriculum. That year of study was among the most formative years of intellectual development for me. And it almost didn't happen. I was originally denied admission to Notre Dame's program for failure to satisfy the prerequisite requirements of a certain number of "religion" courses. I sought (and was eventually able) to use a combination of courses from other departments in which I had studied Aristotle and Aquinas (among others) to satisfy the prerequisites. Those courses seemed more foundational to the study of Catholic theology, in any event, than many of the offerings in Dartmouth's religion department. And my experience bore that out. With the exception of two religion courses that were atypical in various ways for the religion department (one on Augustine and another on Aquinas), my undergraduate courses in the philosophy, government, and history departments were, indeed, better preparation for the study of theology.
My theology courses were stocked full of valuable propositional content, but I found that their primary value in relationship to my studies more generally was to supply new horizons and new perspectives on everything else. With God no longer missing from the foreground of my academic study, matters appeared differently. The differences are difficult for me to describe precisely, but Cavadini's explanation of how "[a]n undergraduate course in theology is essentially different from, say, an undergraduate course in history" illustrates how such differences emerge:
Why should undergraduates be required to take courses in theology? An undergraduate course in theology is essentially different from, say, an undergraduate course in history. Even if both courses use some of the same texts, they will use them in different ways. The history course will examine the circumstances of their production, the culture behind them, the social situation for which they provide evidence. But the point of a theology course is to find out about God, in and through the properly disciplined study of these texts. If a student asks a question about God in a history class, the instructor is free to answer, “That’s not a relevant question in this class” (or, as it was put to me somewhat indecorously in a class at the non-Catholic institution where I studied as an undergraduate, “Please leave your theological baggage at the door”). But for a theology instructor to reply in the same way would be to violate the very identity of one’s discipline. Students are right to ask about God, and all matters related to God, in a theology class, where the question is not finally “What influences were operating in Julian of Norwich’s social setting that caused her to have visions?” or “What did Thomas Aquinas think about God?”—though such questions are certainly and necessarily involved—but rather “How has this study helped me think about God and God’s self-revelation?”
There are undoubtedly many considerations that go into the determination of whether to have required courses, and what to require. But at a Catholic university, it seems to me that the core of a case for required theology coursework goes something like this: Undergraduates have theological questions. Theological questions deserve theological answers. At a Catholic university, those questions and answers can and should be addressed with theological discipline.
Friday, February 27, 2015
Professor Charles E. Rice, pro-life champion and long-time professor of law at Notre Dame Law School, died on Wednesday. Here is a link to a book review I did of one of Charlie’s most recent books. I wrote in that review--
"Charlie Rice is one of a kind. He has had a distinguished academic career, mostly at Notre Dame Law School; he is now Professor Emeritus of Law at Notre Dame. He has been a beloved teacher and mentor to thousands of Notre Dame students since he joined the law faculty there in 1969. He has authored many scholarly books and articles. He was the long-time co-editor of the American Journal of Jurisprudence, perhaps the leading scholarly journal devoted to the natural law. He has been active in the political arena. He co-founded the New York Conservative Party and has served as a consultant to various government agencies. He has also been an activist, particularly on pro-life issues.
This service on behalf of the pro-life cause has taken many forms. Perhaps the most important has been his effort to clearly articulate and defend the teachings of the Catholic Church on pro-life issues. He has done so in scholarly books. But perhaps equally important have been his efforts to defend Church teaching on issues such as contraception, abortion, assisted suicide, and the death penalty in more popular venues. He has written innumerable short essays and delivered countless speeches throughout the country on these topics."
Charlie was a loyal son of the Church who will be missed terribly by those who knew him.
Eternal rest grant unto him, O Lord, and let perpetual light shine upon him. May the souls of the faithful departed, through the mercy of God, rest in peace. Amen.
Not just my own University of Notre Dame, but also American higher education and, in many ways, the country has lost a truly great and really good man, "Fr. Ted" Hesburgh. You can learn a lot more about his work and life here. And, the Washington Post's obituary is here.
Fr. Hesburgh was retired by the time I arrived at Notre Dame, but I did have the chance to meet and talk with him several times, including in connection with the University's education-reform efforts. I remember him expressing surprise, and a bit of irritation, when I told him back in 2000 that vouchers and school-choice were still controversial and politically challenging. "I thought L.B.J. and I took care of that back in 1965!", he said. "There are a few details still being worked out," I assured him. God bless Fr. Ted.
Readers will recall Cardinal Kasper's rank racism on display at the Synod last fall. The Cardinal outright denied that he'd engaged in racial stereotyping of the Church in Africa, but the recording of his vicious words gave the lie to His Eminence's denial. Are we enlightened moderns comfortable with Cardinals who lie in public, especially about matters of great moral magnitude?
Be that as it may, things just keep getting richer at Rome. Now, it seems, Cardinal Baldiserri, general secretary of the Synod of Bishops, ordered the theft of books sent to participants in the Synod last fall. The story is here. The Cardinal actually admits that the books were seized, and he attempts to justify their seizure on the ground that they were "mailed irregularly." Pleading in the alternative, His Eminence also avers that the books' reaching the hands of their intended recipients would have "interfere[d] with the Synod," which is just what one would fear from a book titled Remaining in the Truth of Christ. On the issue of truth, keep in mind that Synod's mid-term relatio was apparently drafted in advance of the "open" debates it was alleged to relate. That's just how Pope Francis's "God of surprises" works.
Who will continue to defend the illusion of a climate of "openness" in the Church bequeathed to us by the Second Vatican Council and the clergy and hierarchy shaped by its "spirit"?
Lest anyone lamenting the state of affairs that now persists in constitutional adjudication at the Supreme Court think that we just need return to an earlier, purer time (and one also without law clerks given to verbosity), these 1827 reflections by Charles Hammond (occasioned by Ogden v. Saunders) may supply something of a corrective:
I wish to detract nothing from the high reputation of the judges of the Supreme court, either as men or as lawyers. I must, however, be permitted to express my opinion, that they have run into some very mischievous errors. One is the deep admixture of political expediency, which is infused into and pervades many of their decisions, especially in expounding the constitution. It was once a leading axiom, that justice was blind as to every thing, but the case immediately before her. She could neither see parties, nor look to future consequences. In the Supreme Court this axiom is not regarded. Justices there look with eagle eyes to the parties in the cause, and to the connection between the case to be adjudicated, and its most remote, and often improbable bearings upon the same, or other parties in different situations. Thus, in attempting to shape a decision in one case, so as to quadrate with all possible cases, policy & expediency become the principal topics of examination. And a judicial decision is made to bear a strong analogy to legislative enactment.
Another of these errors is the substitution of an elaborate train of reasoning, for brief and explicit decision. This is closely connected with the first error, and in a good degree originates in it. When a proposition is laid down, and either narrowed or extended with a view to remote and merely supposable consequences, all these must be explained. The probability that they may arise, the evils they may bring with them, the indispensable necessity of obviating these anticipated evils, must all be made out. Thus a legal opinion, instead of deciding the case in hand, is made to resemble the thesis of a student, and consists of hypothesis and inference, spreading over an almost interminable surface.
Charles Hammond, "Insolvent Laws," Cincinnati Gazette, March 27, 1827
Thursday, February 26, 2015
A sober and sobering analysis of Notre Dame's decision to grant benefits to same-sex partners, by three of the University's most distinguished scholars, John Finnis, Gerard V. Bradley, and Daniel Philpott. The bottom line:
"If Catholic institutions extend benefits to same-sex couples, then our era will not only be historic because of the civil power’s endorsement of immoral sex. It will also turn out to be a historic moment in the extensive de-Catholicization of many institutions. It is worth stressing again: structural sin is difficult to contain. This would be a destructive loss made possible by these institutions’ own choice—their unforced, unnecessary, unjustified, and irresponsible choice—to treat same-sex couplings as marital simply because the civil power and the couples in question declared them so."
Read the entire statement:
February 26, 2015 | Permalink
A few days ago, I linked to an excellent presentation by my colleague, Cyril O'Regan, on the place of theology in a Catholic university. (Like O'Regan, I believe strongly that Notre Dame -- and other Catholic universities -- should not only continue with a meaningful Theology (not "religious studies" or even "Catholic studies") requirement but should, indeed, deepen and enrich such a requirement.)
At Distinctly Catholic, Michael Sean Winters has posted a very thoughtful and wide-ranging three-part series on this matter. It's well worth a read by anyone interested in universities, Theology, and, well, life. Among other things, he contends that "removing theology from that core curriculum not only endangers the other sciences, which are then invited to fill its gap with intellectual tools ill suited for the task, but that I fear what happens to a culture in which theology, philosophy and the humanities are driven to the sidelines by our cultural fascination with science and technique. If we do not school our young people in the humanities, theology and philosophy, they will never know how to respond to desire and never lift love beyond the sentimental."
Virginia's Terry McAuliffe is "personally opposed, but ..." And he has recently taken this mainstay of Catholic political life to a new level.
In his push for lethal injection drug secrecy legislation during this year's General Assembly session, Governor McAuliffe simultaneously proclaimed his personal opposition to capital punishment while pushing for new legislation to make sure that other people's moral opposition would not get in the execution team's way through the free choice of third parties not to participate publicy in the execution process.
After the McAuliffe Administration's lethal injection secrecy bill was defeated in the House of Delegates this week, the administration took steps to try to get the House to reconsider, as reported by Jenna Portnoy of the Washington Post. But the Governor took no public responsibility for these efforts (mirroring his public hands-off approach to Virginia Attorney General Herring's stance on the federal unconstitutionality of Virginia's constitutional definition of man-woman marriage):
Brian Coy, a spokesman for McAuliffe (D), declined to comment on the agency’s efforts to flip lawmakers’ votes and referred to his earlier statements on the issue. Coy has said the governor does not support capital punishment but it is his responsibility to uphold the law.“He is a Catholic,” Coy has said, “so there is a moral component to his position on the issue, but he’s governor, and he will enforce the law.”
Wednesday, February 25, 2015
So, I gather that this piece, "San Francisco Parents Shocked to Learn that Catholic Schools are Catholic," is a parody. (Funny reading.) This one, though -- "Lawmakers want investigation of San Francisco Catholic High Schools Over Teacher Morality Clauses" -- is not. That it is not would still be funny, though, if it were not so worrisome:
Assemblymembers Phil Ting (D-San Francisco) and Kevin Mullin (D-San Mateo) are urging the Assembly Labor and Employment Committee and Assembly Judiciary Committee to launch an investigation.
“California cannot become a laboratory for discrimination under the guise of religion,” the lawmakers wrote in a letter sent Monday. They said the rules “set a dangerous precedent for workers’ rights through manipulations of law that deprive employees of civil rights guaranteed to all Californians.”
But, the question is precisely whether "all Californians" really do have a "civil right" to -- regardless of what they believe, say, do, or teach -- play a leading role in the formation of Catholic high-school students. These lawmakers' statements reflect, one could say, a "confusion about discrimination."
Anthony Annett ("Morning's Minion," to many Catholic-blog-readers) has joined the crew at dotCommonweal. Welcome! Here is an early post of his, "Papal Economics: Why the Church Rejects Both Collectivism and Individualism." As MOJ readers know, I think that invocations of a "resurgence of laissez-faire individualism over the past three decades" are less-than-helpful and that "laissez-faire individualism" does not meaningfully exist (except, of course, in the policy program of organizations like NARAL-Pro Choice America). In any event, I look forward to more interesting conversations with him about where, case-by-case, we should draw the line -- "inspired," both of us, "by Catholic Social Teaching" -- that separates particular market-regulations that serve the common good (as many do) from market-regulations that do not (as many do not).
Joe Carter reminded me (sigh) that we are around the 11th anniversary (!) of Locke v. Davey. And, in the course of reminding his readers about that case, he reminds them also about James Blaine, his proposed amendment, and the ways that similar laws in the states continue to (a) reflect our country's once-very-strong anti-Catholicism and (b) stymie education reform.
For my own take on the matter, check out "The Theology of the Blaine Amendments" (here). Abstract:
The Supreme Court affirmed, in Zelman v. Simmons-Harris, that the Constitution permits us to experiment with school-choice programs and, in particular, with programs that include religious schools. However, the constitutions of nearly forty States contain provisions - generically called "Blaine Amendments" - that speak more directly and, in many cases, more restrictively, than does the First Amendment to the flow of once-public funds to religious schools. This Article is a series of reflections, prompted by the Blaine Amendments, on education, citizenship, political liberalism, and religious freedom.
First, the Article considers what might be called the "federalism defense" of the provisions. It concludes that even full-throated support for the Rehnquist Court's so-called federalism "revival" does not require one to regard the Blaine Amendments as courageous efforts by particular communities to provide greater protection to religious freedom, by insisting on a sharper, and more rigid, "separation of church and state." In fact, these provisions might better be seen as representing the failures of particular communities fully to appreciate the nature and implications of religious freedom and liberal pluralism.
Second, the Article sounds a cautionary note concerning the fact that the Blaine Amendments were in large part the product of widespread concern about the political and cultural effects of Roman Catholicism. While it is true that the Blaine Amendments - like much else in the American experience - were anti-Catholic, they are best understood as reflecting more than mere "bigotry." Rather, the Blaine Amendments can usefully be situated in the context of the rich and growing scholarly literature on "civic education," and on the challenges posed by religious faith, teachings, and communities to certain conceptions of political liberalism. Although we are at present confronting the Blaine Amendments primarily as constraints imposed by positive law on local policy choices about school funding, these provisions take us to the heart of perennial questions about statecraft, and soulcraft. They represent, among other things, the enactment into law of certain claims about the aims of education, the prerogatives of the liberal state, the proper scope of religious obligation, and even the nature and end of the human person.
Finally, the Article proposes that Blaine Amendments might most profitably be engaged not simply as rules of positive law, but as theological arguments. The point of this observation is not to assert that the Blaine Amendments' religious meaning is a constitutional strike against them, but rather to enrich our conversations about them. After all, if the Blaine Amendments are not merely legal constraints on state legislatures' funding options, but also claims about the content and proper sphere of religious beliefs, obligations, and loyalties, then it would seem perfectly appropriate to raise constructive, yet unapologetic and unbracketed, religious counter-claims about these matters in response.
I rarely laugh out loud when reading Supreme Court decisions. One exception occurred a few minutes ago as I read Justice Kagan's dissent in Yates v. United States. As authority for the proposition that a fish is a discrete thing that possesses physical form, Justice Kagan throws a "see generally" to Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960). Demonstrating some restraint later in the dissent, Justice Kagan did not provide the obvious Dr. Seuss citation ( "cf. Horton Hatches the Egg") for the assertion that "Congress said what it meant and meant what it said."
Well, I was wrong again.
The Supreme Court decided Yates v. United States today. This is the case about whether undersized fish are "tangible objects" within the meaning of a federal criminal evidence-destruction prohibition. A majority of the Court ruled for the petitioner, a fisherman who argued that the fish he threw overboard were not covered by the statute. The vote was 5-4. Justice Ginsburg wrote for a plurality consisting of herself, Chief Justice Roberts, Justice Breyer, and Justice Sotomayor. Justice Alito wrote separately concurring in the judgment. Justice Kagan authored a dissent that was joined by Justice Scalia, Justice Kennedy, and Justice Thomas.
In my initial MOJ post on the case, I predicted that the petitioner would lose unanimously. After oral argument, I acknowledged that my initial prediction appeared "unsustainable." Noting the criminal law professors' brief signed by Rick Garnett and endorsed by Greg Sisk, I wrote that if their arguments "end up being adopted in an opinion for the Court (as they were by various Justices at oral argument), kudos to Rick Garnett and Greg Sisk for being on the right side of interpretive history on this intra-MOJ split." Although there was no opinion for the Court, the outcome resulting from the plurality plus Alito plainly rests on adoption of the arguments advanced by petitioner and underscored by petitioners' amici curiae.
In light of Greg Sisk's post-argument post describing Yates as "a door that led to a large stadium populated by a multitude of controversial legal issues," I look forward to the post-decision commentary and analysis. I don't know that I'll have much to say given the lingering taste of crow in my mouth. I will take consolation, however, in Justice Kagan's dissent and the good company she kept in that opinion. For whatever it's worth, the fisherman petitioner did not get the duck-hunters' vote.
February 25, 2015 | Permalink
I am late in posting a notice for this wonderful short piece by Marcel Proust (yes, that one), The Death of Cathedrals, first published in Le Figaro in 1904 and translated for the first time into English (John Pepino). As the introduction explains, the context of Proust's essay was the strict separationism afoot in France in the early 20th century (culminating in the 1905 "Law of Separation"), and in specific what would happen to France's cathedrals under the new secular dispensation. Proust was an Agnostic and in some ways that makes his reflections on the subject all the more interesting. But what is truly fascinating is how completely different his views are from the typical American separationist position. Like from another planet (albeit a perfectly inhabitable one). A bit from the beginning:
Today there is not one socialist endowed with taste who doesn’t deplore the mutilations the Revolution visited upon our cathedrals: so many shattered statues and stained-glass windows! Well: better to ransack a church than to decommission it. As mutilated as a church may be, so long as the Mass is celebrated there, it retains at least some life. Once a church is decommissioned it dies, and though as an historical monument it may be protected from scandalous uses, it is no more than a museum. One may say to churches what Jesus said to His disciples: “Except you eat the flesh of the Son of man, and drink his blood, you shall not have life in you” (Jn 6:54). These somewhat mysterious yet profound words become, with this new usage, an aesthetic and architectural axiom. When the sacrifice of Christ’s flesh and blood, the sacrifice of the Mass, is no longer celebrated in our churches, they will have no life left in them. Catholic liturgy and the architecture and sculpture of our cathedrals form a whole, for they stem from the same symbolism. It is a matter of common knowledge that in the cathedrals there is no sculpture, however secondary it may seem, that does not have its own symbolic value. If the statue of Christ at the Western entrance of the cathedral of Amiens rests on a pedestal of roses, lilies, and vines, it is because Christ said: “I am the rose of Saron”; “I am the lily of the valley”; “I am the true vine.”
Tuesday, February 24, 2015
I'm happy to report that the Virginia House of Delegates a few hours ago voted down a proposed death penalty drug secrecy bill (SB 1393). I posted on MOJ a couple of weeks ago in opposition to this bill, and subsequently co-authored an op-ed with my colleague Corinna Lain that built on the MOJ post. I then testified before a House of Delegates subcommittee and committee. All of this seemed to be of little effect (as the subcommittee and committee vote counts show). But the tide somehow turned, and at least some of this must be due to persistent lobbying by the Virginia Catholic Conference, the Virginia ACLU, and Virginians for Alternatives to the Death Penalty, whom Corinna and I had been working with, as well as opposition by the Virginia Press Association and other open-government advocates. It is impossible to know what would have happened without any push from all these groups. And it is nice to think that a bill so evidently flawed would have collapsed of its own weight when delegates were free to vote their conscience without regard to party discipline (as they were). But it is gratifying to see the outcome one has been pushing for reflected in the final vote, especially when the outcome comes as a surprise. (To show how surprising the outcome is, I've included below the draft post that I wrote this morning but was unable to finish before other matters demanded my attention. It seems my draft observations about the distorting effects of death-penalty politics were not across-the-board accurate. Happy to be proven wrong.)
The New Atlantis (which I really enjoy) has a review up, by Prof. Gilbert Meilaender, of James Mumford's new book, Ethics at the Beginning of Life, which the reviewer calls "a work of serious philosophical argument, well worth our taking seriously." Check it out!
Sunday, February 22, 2015