Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Monday, August 21, 2017

Philip Bess in Communio on "An Urban Pilgrim's Progress"

The current issue of Communio is about "The City," and my friend and colleague Philip Bess, with whose work MOJ readers are likely familiar, has a nice essay called "City Stories of Nature and Grace:  An Urban Pilgrim's Progress."  Here's a quick description:

The Winter 2016 issue of Communio explores “The City.” Modern urban life challenges us to examine the principles according to which cities either foster or hinder the human person and community in their relation to God.

Philip Bess reflects on good urban order in “City Stories of Nature and Grace: An Urban Pilgrim’s Progress.” A city’s architecture and objective pattern educates its inhabitants, whether poorly or well, in their role as “intermediaries” between the sacred and mundane. “Cities (like families) point beyond themselves to transcendent truths and realities of which their denizens may be but dimly aware, if at all.” In tracing the emergence and features of contemporary cities, Bess shows how a well-structured city is centered on the thriving of local neighborhoods and, by its very form, reflects the sacramental cosmos in which it is embedded.

Here is a link to Bess's piece ( Download Bess City Stories).

August 21, 2017 in Garnett, Rick | Permalink

Saturday, August 19, 2017

Victor Hugo, Purposivist

In my Introduction to Law case, I assign Lon Fuller's wonderful "The Case of the Speluncean Explorers." I just realized that Judge Tatting's opinion contains the following paragraph in his case against purposivist statutory interpretation. Is it convincing? Victor Hugo probably would not think so.

But what are we to do with one of the landmarks of our jurisprudence, which again my brother passes over in silence? This is Commonwealth v. Valjean. Though the case is somewhat obscurely reported, it appears that the defendant was indicted for the larceny of a loaf of bread, and offered as a defense that he was in a condition approaching starvation. The court refused to accept this defense. If hunger cannot justify the theft of wholesome and natural food, how can it justify the killing and eating of a man? Again, if we look at the thing in terms of deterrence, is it likely that a man will starve to death to avoid a jail sentence for the theft of a loaf of bread? My brother's demonstrations would compel us to overrule Commonwealth v. Valjean, and many other precedents that have been built on that case.

August 19, 2017 in DeGirolami, Marc | Permalink

"Drive Like Your Kids Live Here"

A new sign seems to be the latest trend, at least in certain areas surrounding my neighborhood. Have you seen it? Social Decay

"Drive Like Your Kids Live Here." It's just fantastic. I like to think of it as emphasizing the word "Your." I suppose the assumption, born from hard experience I am sure, is that people drive recklessly in neighborhoods with homes in which children live. What could possibly impress upon these reckless drivers to drive a little slower, a little more carefully?

I've got it. Try to get these people to think about how they would drive if their own children's lives were at risk. After all, people only really care about the safety and well being of their own children. What difference does it make if I put my neighbor's children at risk? I don't care at all about them--certainly not enough to drive safely and responsibly. But my kids. That's different. I actually would be sorry if something happened to them and I was at fault.

What a hopeful portent of the strength of American community.

August 19, 2017 in DeGirolami, Marc | Permalink

Friday, August 18, 2017

Confederate monuments and empathy

I confess that Public Discourse is not the first place I would have expected to see a stirring call to take down Confederate monuments, but Matt Franck offers just that today, and it is worth a read.  Key excerpt:

For these [monuments] are in their turn a gratuitous slap in the face of people who have felt the sting too much already. For a white Yankee like me, they’re bad enough. For black Americans, they must be intolerable. Large and forgiving natures might look on the statues now as relics of an ugly past that the country has in many ways overcome, fading into the background of noisy traffic in the modern, bustling South. But recent events in Charlottesville suggest that this overcoming is by no means a finished business. The statues should go, in order to deprive today’s feckless white supremacists of rallying points at the feet of monuments erected by yesterday’s more successful white supremacists.


Understanding the principled difference between the founding generals and statesmen of the United States—including the slave owners—and the founders and generals of the Confederate States can give us a bulwark against the slippage that President Trump evidently fears. No one ever erected a statue of George Washington in order to communicate his race’s superiority and to lord it over others.

As Franck acknowledges, reasonable (and non-racist) citizens can disagree about this.  But what's so troubling -- and this is my own editorializing -- is the utter failure among many opponents of removal to acknowledge the non-frivolous reasons for removal, much less empathize with our neighbors for whom removal would represent a burden lifted.  (I don't think the failure runs both ways -- African Americans growing up in the South are not ignorant of the arguments for Southern heritage and history.) 

Setting the tone for this failure, of course, is our President.  He doesn't have a monopoly on a lack of empathy (see, e.g., "basket of deplorables"), but combined with his lack of intellectual curiosity, utter self-absorption, and willingness to leverage fear of "the other" for strategic political advantage, President Trump's glaring lack of empathy threatens to foment social divisions in our country to an extent unseen for generations.  To be clear, I'm not suggesting that he is the source of our divisions - he is exacerbating them.

When I first became a dean, I was talking with another dean who was nearing the end of a very long and successful tenure.  I had identified a range of important leadership qualities such as vision, integrity, transparency, and confidence.  He responded, "No, the most important quality in a leader is empathy."  The longer I serve in a leadership role, the more obviously and undeniably true I find his observation to be. 

August 18, 2017 in Vischer, Rob | Permalink

Wednesday, August 16, 2017

Sugarman on the Constitution and Faith-Based Charter Schools

Here (Download Sugarman on Faith-Based Charter Schools), and forthcoming in the Journal of Law and Religion, is Prof. Stephen Sugarman -- a longtime education-law and education-reform expert -- on whether the Constitution permits the exclusion of faith-based schools from charter-school programs.  The abstract:

This article argues that it is unconstitutional for state charter school programs to preclude
faith-based schools from obtaining charters. The rst section describes the “school choice”
movement of the past fty years, situating charter schools in that movement. The current
state of play of school choice is documented and the roles of charter schools, private schools
(primarily faith-based schools), and public school choice options are elaborated. The second
section argues that based on the current state of the law it should not be unconstitutional,
under the First Amendment’s Establishment Clause, for states to elect to make faith-based
schools eligible for charters, and, therefore, the current practice of formal discrimination on
the basis of religion against families and school founders who want faith-based charter
schools should be deemed unconstitutional by the US Supreme Court. Put differently, this
is not the sort of issue in which the “play in the joints” between the Free Exercise and
Establishment Clauses should apply so as to give states the option of restricting charter
schools to secular schools.

August 16, 2017 in Garnett, Rick | Permalink

An . . . interesting petition for rehearing filed in Fratello

A few days back, I noted a welcome decision by the Court of Appeals for the Second Circuit in a ministerial-exception case.  I didn't mention in that post the fact that, along the way, the lawyer for the employee had repeatedly made anti-ministerial-exception arguments that were so overheated (and, frankly, anti-Catholic) I felt sorry for the judges and law clerks who had to work, I'm sure, to find actual arguments to engage.  Well, if you want an example of (a) how not to write legal arguments and (b) the unhinged nature of some of the opposition to religious freedom for institutions, see this petition for rehearing.  Here's a taste:

The Panel’s opinion, left uncorrected, will be remembered as the Dred
Scott10 of religious liberty cases. Like Dred Scott, it will be correctly seen as the
judiciary ignoring the rights of an individual for the sake of powerful interests,
there slave owners and here, the Roman Catholic Church and Christian Right. And
just as Southern law eventually deemed someone with a tiny fraction of African
blood as a “Negro” whose rights could be diminished, the Panel’s decision will
allow greater and greater expansion of who a “minister” is, so that eventually a
huge percentage of Church-affiliated or “religious” employees will be deemed
ministers by the courts (even if not by their Churches), and virtually all employers
immune from civil law.

And another:

In the Roman Catholic elementary and high schools alone, both teachers31
and principals will be faced with both the actual or the threatened loss of their civil
rights and their own First Amendment freedom. This may include around 100,000
parochial school teachers and principals, and because these educators educationally
and physical supervise their wards, the Panel’s ruling also imperils the over 2.3
million parochial school children who are educated today in these schools. Then
double that number for all non-Catholic school, and then add all other Churchaffiliated
workers, and we have a huge number of Americans who will soon
discover that the federal courts, let by the Second Circuit, have taken away their
civil rights on the altar of Organized Religion.

And . . .

The undersigned humbly requests that the Court seriously and thoughtfully
consider this Petition. This is a tremendously important case. In the big picture, it
is more important than a death penalty case or a billion dollar antitrust case,
because what is at stake is our democracy.

August 16, 2017 in Garnett, Rick | Permalink

Cardinal O'Malley on Charlottesville

I have found myself struggling for words that might appropriately convey any helpful insights for our nation's current crisis of moral leadership, but I'm grateful that Cardinal Sean O'Malley has offered a reflection that calls us back to the central importance of ideas and ideals:

Nations live and flourish because of their ideas and ideals, not simply because of their material wealth or power. Our ideas and ideals express our identity and set the standards for our behavior as citizens. For the United States a core statement of our identity is expressed in the phrase “E Pluribus Unum”, from many peoples we shape one nation. This treasured civic truth reflects and is rooted in the biblical heritage of belief in the dignity of all people, and a shared humanity.


We have not always as a nation reflected the best of our ideas and ideals, but they stand as a goal toward which we strive. Our country is once again in a moment when the civic and biblical heritage is being attacked and tested. We need to reassert and reaffirm the belief that one nation is meant to include all: the multiple races, cultures, ethnicities and religions which make up our country.


The angry and violent mob which gathered in Virginia this past weekend, by word and deed, contradicted our national creed and code of civil conduct. As a nation in the past century we led the struggle against the pagan ideas of Nazism. Those who seek to resurrect a new form of Nazism and extreme nationalism – those who denigrate African Americans, who preach and practice anti-Semitism, who disparage Muslims, those who threaten and seek to banish immigrants in our land – all these voices dishonor the basic convictions of the American political and constitutional traditions. They must be opposed in word and deed. As a Catholic bishop I welcome the opportunity to stand with other religious leaders of the land in opposition to the voices of fragmentation and hatred. As the Archbishop of Boston, it is my responsibility to call the Catholic community which I serve to remember the basic truths of faith and reason which are so central at this moment. The truth that our rights and our duties to each other derive from God. The truth that we can successfully oppose hatred and bigotry by civility and charity. These truths can bind us together across racial, religious and ethnic communities. They can help us celebrate our pluralism as a rich treasure which strengthens this land. Today when our unity is tested, when our basic truths of faith and reason are violated, as people of faith and as citizens we must uphold our ideas and ideals. My prayer is that we can rise to this challenge. My belief is that we are surely capable of doing so

August 16, 2017 in Vischer, Rob | Permalink

Saturday, August 12, 2017

The Case for Complicity-Based Religious Accommodations

This paper, by Joshua Craddock (Harvard Law School), is worth a read.  Here's the abstract:

In recent years, religious objectors in high-profile religious liberty cases such as Burwell v. Hobby Lobby and Zubik v. Burwell have claimed that government policy would force them to become complicit in the moral wrongdoing of third parties. In their article Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, 124 Yale L.J. 2516 (2015), Professors Douglas NeJaime and Reva Siegel argue that these complicity-based religious liberty claims should be disfavored. According to their theory, complicity-based claims differ from other religious liberty claims in both "form" and "social logic" because they impose "material" and "dignitary harms" on third parties.

This article argues that NeJaime and Siegel's third party harm theory is fundamentally flawed, and that complicity-based religious accommodations are both a traditional and necessary part of the American legal framework. Part I examines past Supreme Court precedent in the area of free exercise and finds significant support for complicity-based accommodations. Part II reevaluates the magnitude and legitimacy of the asserted third party harms, then weighs the inconveniences imposed on third parties against the injuries to religious claimants should accommodations be weakened or withdrawn. Part III contends that culture war conflicts will not be resolved through the elimination of religious accommodations in the complicity context, and proposes a subsidiarity-based alternative to imposing coercive legal penalties on religious objectors.

August 12, 2017 in Garnett, Rick | Permalink

Wednesday, August 9, 2017

Two books to consider as summer wanes

MOJ friends, Robert Cochran and Zach Calo recently published "Agape, Justice, and Law: How Might Christian Love Shape Law?" Rick Garnett and Robert George among many others have chapters in this fine book.

And, on Edith Stein's feast day, I also recommend Edith Stein: The Life and Legacy of St. Theresa Benedicta of the Cross, which will be available August 24, written by the award winning Maria Ruiz Scaperlanda.


August 9, 2017 in Scaperlanda, Mike | Permalink

Monday, August 7, 2017

Is Law Still a Helpful Analogue?

I had the opportunity earlier this summer to speak at the Portsmouth Institute Summer Conference, "Being Human: Christian Perspectives on the Human Person." I was asked to present on human ecology and, in the main, spoke from prior writings on this topic, some of which I'd published in Public Discourse earlier this year.

Relying on Pope John Paul II (and others), I made the claim in both the PD piece and at the Portsmouth Institute that perhaps "human ecology" could serve as a better analogue to the reality classically understood as natural law. Here's some from the original piece in Public Discourse:

For these recent popes, “the ecology of man” seems to approximate what would have been described classically as natural law: the idea that the human person possesses a nature that must be understood and nurtured for his full flourishing (eudaimonia, for the Greeks; beatitude, for the Christians). But the modern connotations of both nature and law are, without a great unlearning, too fixed or static to represent the dynamism of the human person in an authentic way. Consequently, natural law as a concept today is greatly misunderstood. For most, it is almost unintelligible.

But I wanted to dig a bit deeper at the Portsmouth Institute than I had in the PD piece about why "natural law" had become unintelligible to modern ears. Perhaps this was too complex to get at sufficiently as a sidebar (and may have taken my presentation too far into the weeds!), but I thought MOJers may find it of some interest. Here's some of that sidebar: 

The natural law of course requires that good is to be done and evil to be avoided. But it emerges more fully from reflections upon man’s natural inclinations to goodness, truth, and beauty, to self-preservation and intimate union, and to living in community. It is organically discovered (and discoverable) from within, we might say, not artificially (or arbitrarily) imposed from without.


But (sadly) “human nature” and natural “law” are concepts that have become reified over time (that is, these terms, to the modern mind, inaptly connote something fixed or static and, yes, imposed artificially and arbitrarily). The ecological analogue may better allow that same mind to reflect then, with fewer intellectual stumbling blocks perhaps, upon the dynamic and complex internal structure of the human person and of human experience.  


For the inner intelligibility that informs the natural world—that which allows scientists to study it, to understand it, to promote methods of protecting it—that same intelligibility informs all of creation, man no less. As Bishop Robert Barron reminds us, it is intelligibility itself, the capital ‘L’ Logos that is at the heart of, is that which makes possible, every quest for human understanding-- every small “L” logia (from ecology to biology to psychology). 


And so, the intelligible dynamic structure of the human person ought not be confined within concepts that have lost their capacity to ignite insight into the reality of things themselves, the reality, most essentially, of the transcendent yearning for truth, goodness, and beauty that God has placed in each and every human heart.


So, for instance, the term “law” now inaptly conjures for many a kind of Hobbesian command, a fixed statute borne of the arbitrary will of the legislator (to which each solitary individual owes his obedience)--with little sense of the reasoning, principles, and concrete particularity by which and from which it was derived. (This, we should be reminded, is a far cry from the more organic, reason- , virtue-, and tradition-dependent, common law understanding in which the jurist, accompanied by the accumulated wisdom and experience of the precedents before him, employed his reasoning capacity to ‘discover’ rather ‘create’ or ‘invent’ (or ‘rationalize away’) the way in which enduring legal principles might inform new circumstances. …And so we can begin to see how this older understanding of law would have properly served as a strong analogue to natural law in prior days).


And so, with the loss of law as a really good referent, the analogy to “ecology” may more readily represent to the modern mind the complex reality of human contingency, human agency, and human interdependence: that the human person is created, and he is endowed with a dynamic internal structure by which he desires, knows, and wills, and yet, by his choices, he creates himself; that he is deeply influenced by and, in turn, influences others; that he is conditioned by the environment in which he finds himself and yet is capable of transcending it.


Now, we should of course continue to work to recover the authentic meanings of natural law and of human nature in our post-modern age (and great philosophers such as Servais Pinckaers, Bernard Lonergan, and Karol Wojtyla have helped us begin to do just that). But in the meantime, those of us engaging others in the world can work to reach them by speaking in the tongues of our current culture.


Moreover, translating natural law insights not only affords a potential bridge to our fellow man; it also inspires those of us doing so to re-appropriate for ourselves the tradition anew so that we do not, in Russell Hittinger’s words, simply “regurgitate truisms,” without ever penetrating these ancient truths for ourselves. This inauthenticity is rejected immediately today, as well it should be...


Human ecology, as used by the popes then, implicitly assumes the existence of the moral law written on the heart of every human person, that when nurtured through love, cultivated in virtue, and protected from moral toxins, affords each of us an internal guide toward happiness. But “ecology” is also better able than “law” today to help conjure in the modern mind’s eye the social influences that may either support or undermine the development of that internal guide. In John Paul the Great’s words: "Man receives from God his essential dignity and with it the capacity to transcend every social order so as to move towards truth and goodness. But he is also conditioned by the social structure in which he lives, by the education he has received and by his environment. These elements can either help or hinder his living in accordance with the truth."


What the great saint was urging us toward, of course, is a more dignified culture, a social ecology worthy of the dignity of the human person. [It was to that topic I then turned.]

For more on how thinking ecologically can assist in the assimilation of ancient truths with scientific discoveries --and how all this can help get us beyond the (destructively) false modern idea of freedom as autonomy, I cannot recommend enough Matthew Crawford's brilliant book, The World Beyond Your Head: Becoming an Individual in an Age of Distraction. You may have seen reference to the book in John Water's must-read First Things piece, "Back to Work." 

In case you needed any more summer reading... 

August 7, 2017 in Bachiochi, Erika | Permalink

Sunday, August 6, 2017

Place, Memory, and Affection

A wonderful set of observations from Victor Hugo on the importance of places and spaces of affection in the memory of one's homeland (Les Miserables, Cosette, Book V, Chapter 1):

The author of this book, who regrets the necessity of mentioning himself, has been absent from Paris for many years. Paris has been transformed since he quitted it. A new city has arisen, which is, after a fashion, unknown to him. There is no need for him to say that he loves Paris: Paris is his mind’s natal city. In consequence of demolitions and reconstructions, the Paris of his youth, that Paris which he bore away religiously in his memory, is now a Paris of days gone by. He must be permitted to speak of that Paris as though it still existed. It is possible that when the author conducts his readers to a spot and says, ‘In such a street there stands such and such a house,’ neither street nor house will any longer exist in that locality. Readers may verify the facts if they care to take the trouble. For his own part, he is unacquainted with the new Paris, and he writes with the old Paris before his eyes in an illusion which is precious to him.

It is a delight to him to dream that there still lingers behind him something of that which he beheld when he was in his own country, and that all has not vanished. So long as you go and come in your native land, you imagine that those streets are a matter of indifference to you; that those windows, those roofs, and those doors are nothing to you; that those walls are strangers to you; that those trees are merely the first encountered haphazard; that those houses, which you do not enter, are useless to you; that the pavements which you tread are merely stones. Later on, when you are no longer there, you perceive that the streets are dear to you; that you miss those roofs, those doors; and that those walls are necessary to you, those trees are well beloved by you; that you entered those houses which you never entered, every day, and that you have left a part of your heart, of your blood, of your soul, in those pavements. All those places which you no longer behold, which you may never behold again, perchance, and whose memory you have cherished, take on a melancholy charm, recur to your mind with the melancholy of an apparition, make the holy land visible to you, and are, so to speak, the very form of France, and you love them; and you call them up as they are, as they were, and you persist in this, and you will submit to no change: for you are attached to the figure of your fatherland as to the face of your mother.

May we, then, be permitted to speak of the past in the present? That said, we beg the reader to take note of it, and we continue.

August 6, 2017 in DeGirolami, Marc | Permalink

Wednesday, August 2, 2017

Some thoughts on the Trinity Lutheran case

I have a short comment up at Commonweal on the Supreme Court's recent decision in the Trinity Lutheran case.  A bit:

. . . All things considered, the justices in the majority had the better of the argument. It is certainly true, as Justice Sotomayor emphasized, that the separation—that is, the differentiation—between religious and political authority safeguards religious and political freedom. Yet this separation is not so strict as to require the blanket exclusion of churches from generally available and entirely secular public benefits, or to rule out cooperation between governments and religious institutions in advancing safety, education, health, and social welfare. Some observers, such as the incoming dean of Berkeley Law, Erwin Chemerinsky, complained that “the noble and essential idea of a wall separating church and state is left in disarray, if not shambles,” but this overreaction reflects a misunderstanding of the idea. Our Constitution wisely protects religious liberty by preventing official interference with strictly religious affairs. It would be unconstitutional for Missouri to pick Trinity Lutheran’s hymns or ordain its pastor, but it is well within our tradition to allow the church, like anyone else, to apply for help with playground safety. . . .

August 2, 2017 in Garnett, Rick | Permalink

Nondiscrimination for All

Jonathan Rauch has an article in National Affairs that offers a thoughtful take on the roots of today's SSM/religious liberty stalemate:

Culturally, what the country learned from the civil-rights movement is that discrimination is everywhere and always wrong, and therefore must be everywhere and always illegal and unacceptable. In the racial paradigm, discrimination cannot just be minimized. It must be eradicated. Every diner, drinking fountain, and swimming pool open to the public must be open to blacks. In practice, after all, any lesser standard was exploited by racists as a tool of Jim Crow. In principle, the very existence of discrimination diminished African-American dignity.

This lesson contributes to our current predicament, according to Rauch: to religious liberty advocates, once sexual orientation gains any protection under anti-discrimination laws, religious objectors will find zero accommodation for dissenting practices; to gay rights advocates, once religious objectors gain any legal accommodation, gays will be stuck perpetually in a second-class status.  Rauch points out that this framing of the issue ignores the fact that "anti-discrimination law as enacted in countless jurisdictions and as interpreted by the courts is nothing close to being as absolute as today's activists and popular culture typically suppose."

Anti-discrimination laws targeting race offer fewer context-based exceptions than disability laws; age, religion and gender protections are at various points in between:

It's important to stress that this is a spectrum, not a hierarchy. It does not rank anti-discrimination rules from "better" or "stronger" at the race end to "worse" or "weaker" at the disability end. It also does not rank the social importance of various groups or the validity of their nondiscrimination claims. It is not a competition. Rather, the spectrum reflects the natural diversity of needs, situations, and histories of groups seeking protection and of the social contexts in which they are embedded.

Can we approach GLBT anti-discrimination protections as a debate over the most appropriate spot on the spectrum (as Utah did), rather than pretend that the spectrum doesn't exist?  If so, does that hold promise for other areas where cultural divisions over moral truth have led to zero-sum legal battles? 

August 2, 2017 in Vischer, Rob | Permalink

Monday, July 31, 2017

A particularly nasty anti-school-choice piece at the NYT

Here.  Katherine Stewart (author of "The Good News Club:  The Christian Right's Stealth Assault [RG: !] on Our [RG: !] Children") digs in and reveals that the use of the term "government schools" by education-reform advocates gives away their genealogical and moral connections to segregationism and Rushdoony-style theocratic yearnings.  Or something.  She, and anyone who reads her screed, should read, e.g., Charles Glenn's "Myth of the Common School" (link) and Joseph Viteritti's "Choosing Equality" (link).  Not to mention John McGreevy and Philip Hamburger.  

July 31, 2017 in Garnett, Rick | Permalink

Friday, July 28, 2017

New from Cambridge: "Agape, Justice, and Law"

Check out this volume, edited by MOJ-friends Zachary Calo and Bob Cochran, "Agape, Justice, and Law:  How Might Christian Love Shape Law?", from Cambridge University Press.  Here is the book description:

In a provocative essay, philosopher Jeffrie Murphy asks: 'what would law be like if we organized it around the value of Christian love, and if we thought about and criticized law in terms of that value?'. This book brings together leading scholars from a variety of disciplines to address that question. Scholars have given surprisingly little attention to assessing how the central Christian ethical category of love - agape - might impact the way we understand law. This book aims to fill that gap by investigating the relationship between agape and law in Scripture, theology, and jurisprudence, as well as applying these insights to contemporary debates in criminal law, tort law, elder law, immigration law, corporate law, intellectual property, and international relations. At a time when the discourse between Christian and other world views is more likely to be filled with hate than love, the implications of agape for law are crucial.

The list of contributors is impressive, and includes our own Michael Moreland and Tom Berg. 

July 28, 2017 in Garnett, Rick | Permalink

Sunday, July 23, 2017

Father John Jenkins and the 50th Anniversary of the Land O’Lakes Statement: A Response

Land O'Lakes

In a recent article (here) in America Magazine, Rev. John I. Jenkins, C.S.C., president of the University of Notre Dame, celebrates the Land O’Lakes Statement on the occasion of the document’s 50th anniversary.  Formally styled a “Statement on the Nature of the Contemporary Catholic University,” the Land O’Lakes Statement (LOL) is named for a retreat in northern Wisconsin where representatives from eleven Catholic universities (seven American, two Canadian, one from Puerto Rico, and one from Peru) and members of their sponsoring religious communities and two bishops met to discuss, clarify and articulate their understanding of the nature and purpose of a Catholic university.  In practice the statement served as a position paper for the International Federation of Catholic Universities (IFCU) of which Jenkins’ predecessor, Rev. Theodore M. Hesburgh, C.S.C., served as chair.  In 1972, building on LOL, the IFCU published a more lengthy exposition of the same idea, The Catholic University in the Modern World (not available online but in American Catholic Higher Education: Essential Documents, 1967-1990 (Alice Gallin, O.S.U. ed. 1992)).

Both of these documents suffer from serious shortcomings which Fr. Jenkins, to his great credit, acknowledges, and about which I’ll have more to say below.

In the piece, Fr. Jenkins praises LOL as “proclaim[ing] a confident vision for Catholic higher education,” as “envision[ing], rather ambitiously . . . a university whose Catholicism is pervasively present at the heart of its central activities – inquiry, dialogue, teaching and human formation.”

And, in all fairness, the document is rightfully deserving of some praise.

Specifically, Jenkins attempts to set LOL in context – an earlier time when ecclesiastical authorities sometimes intervened in the academic affairs of Catholic universities and colleges. Jenkins refers briefly to the experience of Fr. Ted Hesburgh who led the gathering that resulted in the LOL statement. A fuller account of the incident appears in Hesburgh’s autobiography, God, Country, Notre Dame (pp. 209-213).  In 1954, in the early years of his presidency, the Superior General of the Congregation of the Holy Cross, Rev. Christopher O’Toole, C.S.C., instructed Hesburgh not to publish a book of papers that had been presented at Note Dame, Catholic Church and World Affairs. The book contained a paper by Rev. John Courtney Murray, S.J., commenting on church-state relations, that Alfredo Cardinal Ottaviani, prefect of the Holy Office, wished to suppress.  Hesburgh refused to comply, offering instead his resignation.  He feared that if he followed Ottaviani’s order “Notre Dame would lose all its credibility in the United States, and so would I, if an official in Rome could abrogate our academic freedom with the snap of his fingers” (p. 211).  A compromise of sorts was worked out whereby Notre Dame simply sold the copies of the book already in print and the University did not run a second printing.  Fr. Hesburgh did not resign and as he notes, Fr. Murray’s views were “fully vindicated several years later at Vatican Council II” (p. 212).

In providing this context, Jenkins is, I think, correct to say that such an “egregious intrusion” in the academic life of a Catholic university was part of what Hesburgh and his colleagues had in mind when they met to draft the statement in Wisconsin. And in this respect, LOL is indeed something to celebrate. Ecclesial authorities should not be involved in the day-to-day affairs of running a university.  The local ordinary, let alone a curial prelate in Rome, should not be deciding what questions should be asked, what lines of inquiry are worth pursuing, or what points of view should be open to consideration at a Catholic university.  As Chicago’s late, beloved Cardinal-Archbishop Francis George, O.M.I. (a former university professor and a true scholar) said on many occasions, at a Catholic university no point-of-view is banned from consideration, even those that are inimical to the Catholic faith.  University education is a “great conversation,” and both students and faculty need to have the freedom to converse openly as they seek to discover the truth and understand it fully.

This is not to say that the bishops have no place in a Catholic university, or only a ceremonial relationship.   Still some, like late Rev. Richard McBrien were in favor of nothing more than a symbolic role for bishops: “Bishops should be welcome on a Catholic-university campus.  Give them tickets to ball games. Let them say Mass, bring them to graduation.  Let them sit on stage. But there should be nothing beyond that.”

An alternate vision was offered by Francis George in an address he gave at Georgetown University, where he argued:

[C]larity about the Catholic university’s mission cannot be achieved without going behind university and Church and asking first about the claims of faith.  The normal understanding of faith, any revealed faith, is that it unites us to God. Examining the claims of faith on an academic community identifying itself as Catholic forces us, first of all, to confess what kind of God we believe in and worship.” The God of the Catholic faith is “the Father of Our Lord, Jesus Christ” who is “an actor in human affairs who calls us to see the university and the world and all its works through the eyes of a crucified Savior.

George also noted that religion – like physics and other sciences – makes truth claims.

[B]ut its warrants and rules of evidence are different from those for physics. The truths are always self-referential, but, in Catholic faith, referential to the community and not to isolated individuals who just happen to be within it.  Christ, whom John portrays claiming to be himself the truth, left not a set of personal memoirs nor a training manual but a community with an embryonic governing and teaching and sanctifying structure which Vatican II describes as a hierarchical communion.  A university that worships the Catholic God cannot separate itself from the community of faith, both local and universal.  Therefore, squarely within the Catholic vision of things, central to the life and mission of the ecclesial faith community, is the office of bishop as head of a local or particular Church and teacher of the Catholic faith.  I would respectfully suggest, therefore, that the office of bishop is not a problem in understanding the Catholic mission in higher education; rather, the office of bishop is part of the solution.

In a later address, delivered at Loyola University Chicago, Cardinal George argued that in his Georgetown talk he had not invited himself and other bishops into Catholic universities.  Rather, “the question, I think, should be reversed: How are you in the church, rather than how am I in the university? The adjective Catholic is not a mere extrinsic denomination in any case nor is it the object of definition by any individual or group in a university or elsewhere.  It is rather the possession of the household of faith.”

Thus, contrary to LOL and a number of other documents purporting to define the Catholic university, the authenticity of Catholic identity cannot be brought about by the mere self-affirmation of that identity by a university.  As Cardinal George makes clear, “Catholic” is no mere label, but a substantive identity and lived reality, the content of which belongs to the Church, including the successors of the apostles whose special responsibility is to safeguard that substance in teaching, sanctifying, and governing their local churches.

In the article, Fr. Jenkins makes a number of other points worthy of response.

First, Fr. Jenkins faults the critics of LOL for their “narrowly focused” reading of the document – for focusing on only one sentence and “fail[ing] to read the statement beyond this line.”  The sentence to which he refers appears in the opening paragraph of LOL: “To perform its teaching and research functions effectively the Catholic university must have a true autonomy and academic freedom in the face of authority of whatever kind, lay or clerical, external to the academic community itself.”  Jenkins adds that it was wrong for critics of LOL to read this statement as “declar[ing] absolute independence from all external authority . . . [an] exemption from all civil as well as ecclesiastical law.”

On the contrary, it is perfectly reasonable to take the authors’ sweeping language at their word. Autonomy “in the face of authority of whatever kind” is an explicit claim to institutional freedom from all kinds of constraints, whether civil or ecclesial.  In practice, of course, Catholic colleges and universities have been rather inconsistent in upholding this purported absolute standard.  The concessions these institutions have made to outside authorities have been decidedly one-sided, welcoming governmental authorities of many stripes and keeping church authorities at arms length.

Rev. James T. Burtchaell, C.S.C. demonstrated the absurdity of the claim to immunity to external authority in devastating fashion.  In an essay in Crisis Magazine (here), following on the heals of his great book, The Dying of the Light, Burtchaell composed a partial list of the myriad federal agencies to which universities (Catholic and otherwise) submit.  These include the Departments of “State, Justice, Education, Agriculture, Commerce, Defense, Energy, Health and Human Services, Labor, and Veterans Affairs; also the Equal Employment Opportunity Commission, the Environmental Protection Agency, the Library of Congress, the U.S. Patent Office, the National Science Foundation, the National Endowments for the Humanities and for the Arts, the National Institutes of Health, and the Immigration and Naturalization Service.”  Furthermore, the NCAA “feigns to regulate the amount of practice time before the beginning of the academic year, all financial adhesions of varsity athletes, the authenticity of their academic progress, and variances in their class attendance due to events away from campus.”  And the U.S. military “decides what facilities are required by its ROTC programs on campus.”

On the local level “[t]he county health department has regulations governing burials on campus and inspects the dining facilities. The fire inspector regularly prowls the physical plant and growls at code violations.  The building inspectors have to sign off on all construction projects, and the zoning people will claim a say if the campus begins to creep in any direction.  The county prosecutor decides which student misbehavior will be dealt with officially, which unofficially, and which not at all.”

In sum, Burtchaell says, “[t]he vast network of authorities, standards, and policies, of which this cloud of outside entities and personages is only a part, puts into necessary perspective the distracted imagination of the Land O’Lakes claim by the presidents to ‘true autonomy in the face of authority of whatever kind, lay or clerical, external to the academy itself.’”

One might, of course, distinguish different kinds of external authority – on the one hand, the coercive power of the state exercised through law that applies uniformly to all engaged in a given activity, and, on the other hand, external authority that is invited into the university by a voluntary decision.  If a university maintains facilities or engages in building construction, it is and should be subject to local fire inspection ordinances and building safety codes.  But even given this distinction, the Catholic university that subscribes to LOL’s language does not fare well.  No one forces Catholic universities to belong to the NCAA, or to host ROTC programs, or to accept federal grants of money with conditions attached that are “external to the academic community itself.”  There may be strong, even compelling reasons to engage in these kinds of programs and activities.  But unlike the law, in doing so a Catholic university welcomes some outside non-academic authority into the life of the institution.

Thus, contrary to Fr. Jenkins, the critics of LOL have not misread the document.  They have simply pointed out the inconsistency – the gross hypocrisy – of Catholic colleges and universities in claiming freedom from all outside authority.

Second, according to Fr. Jenkins, the critics’ narrow focus on the LOL passage declaring freedom from external authority results in a “failure to recognize the statement’s broad, positive vision” – a vision which he says appears in the second paragraph describing a Catholic university as “a community of learners or a community of scholars, in which Catholicism is perceptibly present and effectively operative.”  Indeed, Fr. Jenkins says that because the authors of LOL were attempting to respond to Vatican II’s Gaudium et Spes, and intended eventually to submit a document for review by the Sacred Congregation for Catholic Education, the document is not “a unilateral declaration of independence from all ecclesial authority.”

Here Fr. Jenkins dismisses longtime Notre Dame historian Philip Gleason who, in his book, Contending With Modernity, described LOL as a “declaration of independence from the hierarchy” (p. 317).  This dismissal is odd, not only because Fr. Jenkins acknowledges Gleason as an “esteemed scholar of American higher education,” but because Gleason was both a product of and contributor to Catholic higher education.  He received his B.A. from the University of Dayton in 1951 and his masters and doctorate from Notre Dame in 1955 and 1960.  He served as a member of the Notre Dame faculty from 1959 until his retirement in 1996.  He experienced Catholic higher education first hand both prior to and following LOL.  Thus, his description of LOL as “a declaration of independence” reflects not only his reading of the text, but this lived experience.

Furthermore, in the passage where Gleason describes LOL as a “declaration of independence” from the Catholic hierarchy, he also answers Fr. Jenkins’ claim that LOL is outstanding for its ringing affirmation of Catholic identity.  As Gleason notes, “[t]he statement would have attracted no notice whatsoever had it done no more than reaffirm those points.  What made Land O’Lakes statement news were its radically novel claims for ‘institutional autonomy and academic freedom.’  Issued against the background of academic crises, theological dissent, student unrest, and change to lay boards of trustees – and coming as it did from a group of prestigious Catholic educators – the Land O’Lakes statement was indeed a declaration of independence from the hierarchy and symbolic turning point” (p. 317).

Although Fr. Jenkins says that the intention of the LOL signatories was to eventually submit a document for review by the Congregation for Catholic Education, one might note that neither LOL nor The Catholic University in the Modern World received approval from Rome.  One might also note that no one suggests that the authors of LOL sought to expel Catholicism from Catholic campuses, or repudiate Catholic identity.  Rather, LOL should be read as the presidents’ affirmation that they wanted their institutions to be -- and to be recognized as -- Catholic – but Catholic on their own terms.  The document regards a university’s affirmation of its own Catholic character as sufficient. (Francis George points out the glaring inadequacy of this view in the passages quoted above).  Tellingly, the document does not set forth any instrument, procedure or institution (juridical or otherwise) that would serve as a standard and guarantee of communion between the university and the wider Church.

Third, the “broad, positive vision” that Fr. Jenkins identifies in LOL is the document’s statement that the Catholic university be a place “in which Catholicism is perceptibly present and effectively operative” and that this is “achieved first of all and distinctively by the presence of scholars in all branches of theology.”  LOL further says that “’[t]o carry out this primary task properly there must be a constant discussion within the university community in which theology confronts all the rest of modern culture and all the areas of intellectual study which it includes.”  For Fr. Jenkins “[t]he authors seem to be saying that what distinguishes Catholic universities and makes Catholicism operatively present in them is that, stirred by robust interdisciplinary conversations with theology and philosophy, the intellectual community is open to and engages with questions of ultimacy that eventually lead them to conversations about God and the good for human beings, individually and collectively.”

In some respects it is odd that the university presidents and other signatories to LOL would in 1967 offer such a central place for theology in the intellectual life of Catholic universities given the fact that they had just witnessed, in the decades immediately prior to the Council, the failed attempt to use Neo-Thomism as an integrating force across disciplines.  Perhaps, the LOL proposal reflects the exuberance and optimism of Catholics immediately following Vatican II (to which Fr. Jenkins elsewhere refers).  If so, although Fr. Jenkins seems to reject the claim that the LOL authors were “naïve,” this would appear to confirm that assessment.

Having said this, I know of no Catholic university – not even Notre Dame – that attempted to implement the vision that Fr. Jenkins describes.  On the contrary, rather than serve as a source of integration, in the years that followed LOL, theology receded back into its own niche within the academy, mimicking other disciplines with the multiplication of sub-specialties so much so that the lack of dialogue across disciplines (e.g. between chemistry and history, or more broadly, between the sciences and liberal arts) could be seen in microcosm in the lack of dialogue between biblical scholars, dogmatic theologians, scholars of ecumenism, and liberation theologians.

What is worse, in a number of institutions, the “Department of Theology” ceased to exist as such, and was renamed or reconstituted as the “Department of Religious Studies.”  In later years, the idea that theology could not serve as an integrating force in Catholic universities was confirmed by the creation of “Catholic Studies” programs. While these programs often served a vital purpose in preserving some Catholic intellectual presence on campus, they also constituted a tacit admission that engagement with the Catholic intellectual tradition was anything but pervasive throughout the university.

Fr. Jenkins acknowledges that the expectation that theologians would “be intellectual leaders across the disciplines” placed “an enormous burden on theologians.”  In retrospect, this was a burden that they were not equipped to carry because, in the post-conciliar era, the content of Catholic theology itself became highly contested.  During this time, professors of theology in Catholic universities across the country openly questioned long-established church teachings on such firmly held beliefs the triune nature of the Godhead, the divinity of Christ, the Virgin Birth, the bodily Resurrection, the Real Presence of Christ in the Eucharist, and the gravely sinful nature of abortion, pre-marital sex, adultery, masturbation, and homosexual acts.  Catholic theology was in disarray. Consequently, theology was hardly in a position to be a leader in Catholic identity when it had trouble knowing itself.

Fourth, although Fr. Jenkins highlights the concern over academic freedom, he fails to identify another, equally important aspect of the context that gave rise to LOL.  He ignores the larger of context in which Catholic colleges and universities were anxious to gain access to new sources of government funding recently made available.  To accomplish this objective, these institutions sought to avoid being labeled “pervasively sectarian.”  As Fr. Burtchaell makes clear in his article Out of the Heartburn of the Church, 25 J. College & Univ. L. 653, 655 (1999), in boldly claiming “true autonomy and academic freedom in the face of authority of whatever kind, lay or clerical,” the signatories to LOL “were assuring their prospective governmental benefactors that they now regarded their bishops and religious superiors as ‘outsiders’ to the work of Catholic education. The civil authorities, of course, were also ‘outsiders,’ but the presidents were thinking how nice it would be to invite them indoors.” Accordingly, the push to define the Catholic university in a new way, as represented by LOL derived not only from a respect for academic freedom and a desire to implement Vatican II, but as a reaction to the financial crisis then confronting Catholic and other private institutions of higher learning.

Fifth, and finally, Fr. Jenkins, to his credit, recognizes the shortcomings of LOL.  He identifies four: (1) the failure of LOL “to appreciate the difficulty of finding scholars to implement the vision”; (2) the “highly specialized” nature of the modern academy and the difficulty of truly interdisciplinary conversation “particularly those that go to the philosophical or theological dimensions of a discipline”; (3) the increasingly secular and even anti-religious outlook of academics; and (4) the failure of LOL “to make any positive suggestion about what the relationship might be between the Catholic university and ecclesiastical authority.”

There is something to be said for each of these. The forth point has already been addressed in part in Francis George’s remarks quoted above. Here I wish to focus on Jenkins’ first point.

Even if one grants that the authors of LOL wanted Catholicism to be “perceptibly present and effectively operative” in Catholic universities, the document offers no practical strategy for realizing this goal.  It says nothing about the importance of recruiting not just nominal Catholics as faculty members, but genuine Catholic intellectuals who will be attracted to the mission of a Catholic university and seek to carry it forward.

By contrast, another document written at Notre Dame a few years later did.  In 1972 Fr. Hesburgh established a Committee on University Priorities (COUPS), chaired by Fr. Burtchaell (then Provost of Notre Dame) which studied all aspects of the University, and in 1973 issued its final report. (The COUPS Report is reprinted in the December 1973 issue of the Notre Dame Magazine).  The COUPS Report states that “[t]he University’s highest and also its most distinctive priority is to understand and to adhere to its evolving Catholic character.”  To fulfill this goal, the Committee recommended “[t]hat the University have a faculty and student affairs staff among whom Catholics predominate.”  Put another way, the report recognized the truth of the adage “Personnel is policy.”  An institution that identifies as both Catholic and intellectual cannot hope to succeed in its mission if it does not have Catholic intellectuals and other sympathetic to the Catholic intellectual tradition engaged in scholarship and teaching.

Some language similar to the COUPS Report – that the number of Catholic faculty at Notre Dame must “predominate” if the University is to sustain her Catholic identity and fulfill her Catholic mission – has been present in each of Notre Dame’s subsequent strategic reports: Priorities and Commitments for Excellence – the PACE Report (1983); Colloquy for the Year 2000 (1993); Notre Dame 2010: Fulfilling the Promise (2003); and A Legacy Expanded: A Strategic Plan for Notre Dame (2013) (available here).  It is worth noting that this language is even stronger than that contained in John Paul II’s Apostolic Constitution Ex Corde Ecclesiae (1990) which says only that “the number of non-Catholic teachers should not be allowed to constitute a majority within the institution, which is and must remain Catholic” (Art. 4, ¶ 4).

Notre Dame’s Catholic identity is not without blemish. (There is some tarnish on the Golden Dome). Nevertheless, today Notre Dame stands out among American Catholic universities as having maintained a robust sense of Catholic identity.  This is undoubtedly due to many factors, but the practical strategy of hiring Catholic academics to carry on the intellectual work of the school (first identified in the COUPS Report) must rank foremost among them.

The necessity of such a strategy is obvious to anyone who would give serious thought to the matter.  Yet it remains controversial.  It remains an uncomfortable truth, precisely because it calls upon the Catholic university to step out of the mainstream of American higher education, and to do so with more than mission statements and verbal nods to the school’s religious heritage.  It requires actions.   And those brave enough to raise this truth, like Rev. William D. Miscamble, C.S.C., have often been treated like a prophet in his hometown (Luke 4:24).

Preserving, nurturing, and enhancing Catholic mission requires intentional acts and deliberate strategies calculated to achieve that goal.  The Catholic mission of the university is not something that will simply take care of itself.  It must be tended to by Catholic intellectuals.  That LOL ignored this truth – and that this omission was repeated again and again in subsequent statements on Catholic higher education, and that it had a deleterious effect on the hiring practices at almost all the nation’s Catholic colleges and universities – is a one of many reasons why the 50th anniversary of the Land O’Lakes statement is not worth celebrating.

July 23, 2017 | Permalink

Thursday, July 20, 2017

USCCB Guidelines for Celebration of Sacraments with Persons with Disabilities

The USCCB recently approved updated "Guidelines for the Celebration of the Sacraments with Persons with Disabilities", available here.  As the Bishops note "Catholics with disabilities, as well as those who minister to or with them, often point out that pastoral practice with regard to the celebration of the sacraments varies greatly from diocese to diocese, even from parish to parish.  . . The inconsistencies in pastoral practice often arise from distinct yet overlapping causes. Some result from a misunderstanding about the nature of disabilities. Others arise from an uncertainty about the appropriate application of church law toward persons with disabilities. Others are born out of fear, misunderstanding, or unfamiliarity. Still others seem to be the result of the real or perceived limitations of a parish’s or diocese’s available resources."

These Guidelines should help address much of these uncertainties, with specific advice with respect to all the sacraments.  The general guidance flows from the following principles:

1. All human beings are equal in dignity in the sight of God. Moreover, by reason of their Baptism, all Catholics also share the same divine calling.

2. Catholics with disabilities have a right to participate in the sacraments as fully as other members of the local ecclesial community. “Sacred ministers cannot deny the sacraments to those who seek them at appropriate times, are properly disposed, and are not prohibited by law from receiving them.”

3. Parish sacramental celebrations should be accessible to persons with disabilities and open to their full, active, and conscious participation, according to their capacity. Pastoral ministers should not presume to know the needs of persons with disabilities, but should rather—before all else—consult with them or their advocates before making determinations about the accessibility of a parish’s facilities and the availability of its programs, policies, and ministries. Full accessibility should be the goal for every parish, and these adaptations are to be an ordinary part of the liturgical life of the parish.

This is an excellent resource for parishes with questions about how to share parish life with all parishioners, and for parents dealing with uncertainty about sacramental preparation for their children with disabilities. 

July 20, 2017 in Science | Permalink

Some Good Analysis of the Issues raised by the Charlie Gard case

Melissa Moschella, Assistant Professor of Medical Ethics at Columbia University, wrote an excellent analysis of the competing interests of the doctors, the courts, and the parents of 11-month old Charlie Gard, who was born with a rare genetic disease known as mitochondrial depletion syndrome.  The hospital in England where Charlie is being treated wants to withdraw his life support, while his parents want to take up the offer of an American specialist at Columbia University in New York to try some experimental treatment.  The High Court in Britain first refused the parents permission to do so, and is now reconsidering the matter.  More recently, Melissa offered some interesting thoughts about the propriety of having Charlie's court-appointed guardian ad litem being represented in court by a lawyer who is actively involved in an organization closely aligned with Dignity in Dying, an advocacy group for assisted suicide.

July 20, 2017 in Schiltz, Elizabeth | Permalink

Wednesday, July 19, 2017

Hittinger on the "Three Necessary Societies"

This is self-recommending:  Russell Hittinger on the "Three Necessary Societies."  A bit:

Leo issued no Syllabus of Errors. Instead, he asked a question that was at once more philosophical and more practical: How do we civilize this situation? What is our proposal for social order? What can we work with in social matters, and how do we measure what’s been lost and what might be regained? He remarked: “Nothing is more useful than to look upon the world as it really is.” The paradigm of Catholic social teaching formulated by Leo resisted the temptation to utopianism, so seldom resisted elsewhere in the nineteenth and twentieth centuries. The Leonine paradigm for social analysis was simple and sturdy. It was a neo-­Aristotelean effort to put the “spirits” of the age into perennial wineskins.

July 19, 2017 in Garnett, Rick | Permalink

Moyn on human rights, dignity, populism, and the state

This First Things essay by Samuel Moyn -- "Restraining Populism" -- will be of interest to many MOJ readers and touches on questions that have come up often here at MOJ.  A bit:

It was in this context that de Valera settled upon human dignity as a foundational principle, one that preserved the essential element of liberal social norms, which is to protect the human person from being absorbed by—and abused by—the power of the state.

In effect, de Valera was implementing into Irish law the broader shift in Catholic thinking. Although initially hopeful about the possibilities of cooperation with fascism, Pope Pius XI came to see the exaggerated power of the state, whether motivated by communism or fascism, as a threat. In his broadside against Nazi pressure on the Catholic Church in the late 1930s, Mit Brennender Sorge, Pius XI denounced actions that violate “every human right and dignity.”

July 19, 2017 in Garnett, Rick | Permalink

An important (but not *quite* right) ministerial-exception decision

The Court of Appeals for the Second Circuit has handed down its opinion in the Fratello case, which involved a sex-discrimination and retaliation lawsuit filed by the former principal of a Catholic school.  The Court (correctly) concluded that her claims were barred, given the Supreme Court's Hosanna-Tabor decision.  "Although her formal title was not inherently religious, the record reflects that, as part of her job responsibilities, she held herself out as a spiritual leader of the school and performed many religious functions to advance its religious mission."  (Along with our own Tom Berg and several other religious-freedom scholars, I filed an amicus brief in support of the school.)  The happy warriors at The Becket Fund have a detailed page on the case, here.

I should confess to being just a bit disappointed -- perhaps it's just wounded and unwarranted pride -- by a footnote in the opinion.  Discussing the basis for the ministerial exception, the Court said this:

Any autonomy that religious groups have over their internal affairs is premised on the ʺvoluntaryʺ decisions of individuals to engage in ʺreligious activity.ʺ  Douglas Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 COLUM. L. REV. 1373, 1403 (1981) (noting that ʺ[t]he [Supreme] Court has repeatedly stated that all who join a church do so with the implied consent to [the churchʹs] government, to which they are bound to submitʺ (internal quotation marks omitted)).  Indeed, ʺwhat might be called institutional or church autonomy is ultimately derived from individual rights.ʺ  Richard Schragger & Micah Schwartzman, Against Religious Institutionalism, 99 VA. L. REV. 917, 920 (2013); see also id. at 957‐59 (noting that the conception of a ʺchurch as a voluntary associationʺ of individual conscience can be traced to the philosopher John Locke (citing John Locke, A LETTER CONCERNING TOLERATION 28 (James H. Tully ed., 1983) (1629))); Noah Feldman, The Intellectual Origins of the Establishment Clause, 77 N.Y.U. L. REV. 346, 378 (2002) (ʺBy the late eighteenth century, some version of Lockeʹs basic view of the nature of liberty of conscience had been formally embraced by nearly every politically active American writing on the subject of religion and the state.ʺ).

Although I like and admire Profs. Schragger and Schwartzman, I'm inclined to be for "religious institutionalism" and have a different view about the nature and origins of religious groups' "autonomy."  See, e.g., this and this.  Sigh.  Not even a "But see ..." cite.  All is vanity . . .

July 19, 2017 in Garnett, Rick | Permalink

Friday, July 14, 2017

Victor Hugo's Portrait of a Bishop

Today is Bastille Day, and it would not be right to let it go unhonored here at Mirror of Justice. Here is my contribution: Hugo's Tomb
something from that titan of France now well ensconced in the Pantheon, Victor Hugo. If you do not know Les Miserables (the novel, of course, not the musical), you must give it a try. It's a rare and true pleasure to read.

It may perhaps come as a surprise that the first book of Les Miserables, "A Just Man," is almost entirely devoted to describing a bishop--Bishop Bienvenu Myriel. It may be even more surprising that this portrait, by that grand homme de la patrie, is not merely flattering but reverential. Yes, Hugo saves many sharp elbows for the clerisy. Yes, he has a rather pantheistic conception of Christianity. But it seems churlish today to dwell on these matters. And it should not go unnoticed that this masterpiece of the French Revolution and post-Revolutionary France leads its charge in praise of a cleric--a good and just man. It is, in its way, a deeply religious novel.

Here is something toward the end of the Book 1, Chapter 14 ("What He Thought"). Happy Bastille Day.

Human meditation has no limits. At its own risk and peril, it analyzes and digs deep into its own bedazzlement. One might almost say, that by a sort of splendid reaction, it dazzles nature; the mysterious world which surrounds us renders back what it has received; it is probable that the contemplators are contemplated. However that may be, there are on earth men who—are they men?—perceive distinctly at the verge of the horizons of reverie the heights of the absolute, and who have the terrible vision of the infinite mountain. Monseigneur Bienvenu was not one of these men; Monseigneur Welcome was not a genius. He would have feared those sublimities whence some very great men even, like Swedenborg and Pascal, have slipped into insanity. Certainly, these powerful reveries have their moral utility, and by these arduous paths one approaches to ideal perfection. As for him, he took the path which shortens,—the Gospel’s.

He did not attempt to impart to his chasuble the folds of Elijah’s mantle; he projected no ray of future upon the dark groundswell of events; he did not see to condense in flame the light of things; he had nothing of the prophet and nothing of the magician about him. This humble soul loved, and that was all.

That he carried prayer to the pitch of a superhuman aspiration is probable: but one can no more pray too much than one can love too much; and if it is a heresy to pray beyond the texts, Saint Theresa and Saint Jerome would be heretics.

He inclined towards all that groans and all that expiates. The universe appeared to him like an immense malady; everywhere he felt fever, everywhere he heard the sound of suffering, and, without seeking to solve the enigma, he strove to dress the wound. The terrible spectacle of created things developed tenderness in him; he was occupied only in finding for himself, and in inspiring others with the best way to compassionate and relieve. That which exists was for this good and rare priest a permanent subject of sadness which sought consolation.

There are men who toil at extracting gold; he toiled at the extraction of pity. Universal misery was his mine. The sadness which reigned everywhere was but an excuse for unfailing kindness. Love each other; he declared this to be complete, desired nothing further, and that was the whole of his doctrine. One day, that man who believed himself to be a “philosopher,” the senator who has already been alluded to, said to the Bishop: “Just survey the spectacle of the world: all war against all; the strongest has the most wit. Your love each other is nonsense.”—“Well,” replied Monseigneur Bienvenu, without contesting the point, “if it is nonsense, the soul should shut itself up in it, as the pearl in the oyster.” Thus he shut himself up, he lived there, he was absolutely satisfied with it, leaving on one side the prodigious questions which attract and terrify, the fathomless perspectives of abstraction, the precipices of metaphysics—all those profundities which converge, for the apostle in God, for the atheist in nothingness; destiny, good and evil, the way of being against being, the conscience of man, the thoughtful somnambulism of the animal, the transformation in death, the recapitulation of existences which the tomb contains, the incomprehensible grafting of successive loves on the persistent I, the essence, the substance, the Nile, and the Ens, the soul, nature, liberty, necessity; perpendicular problems, sinister obscurities, where lean the gigantic archangels of the human mind; formidable abysses, which Lucretius, Manou, Saint Paul, Dante, contemplate with eyes flashing lightning, which seems by its steady gaze on the infinite to cause stars to blaze forth there.

Monseigneur Bienvenu was simply a man who took note of the exterior of mysterious questions without scrutinizing them, and without troubling his own mind with them, and who cherished in his own soul a grave respect for darkness.

July 14, 2017 in DeGirolami, Marc | Permalink

Tuesday, July 11, 2017

Two Items: Horwitz on Positive Pluralism; Podcast on OT2016

Just a couple of items to flag for readers.

First, have a read of Paul Horwitz's well crafted review of John Inazu's book, Confident Pluralism. I was particularly interested to see Paul's steps toward a defense of the positive virtue of pluralism (as opposed simply to its observation as a social fact to be managed). This is, at least for me, a difficult step to take with respect to pluralism: in my own work, I incline much more toward the "fact of pluralism" side of things. But Paul and, of course, John, are making the case with their usual panache.

Second, my colleague Mark Movsesian and I have recorded a podcast wrapping up 3 major law and religion cases either decided by the Supreme Court or on for decision next fall. Hope you have a listen.

July 11, 2017 in DeGirolami, Marc | Permalink

Monday, July 10, 2017

Letters on State RFRAs: Archive Here at MOJ

Over the last few years, in the controversies over various proposed state religious freedom restoration acts (state RFRAs), a group of scholars supportive of RFRAs in general have written memo-type letters to state legislatures. Given the often simplistic and distorted public debate, the letters' main purpose has been to set the record straight on what RFRAs are likely to do: their main effect would be to protect classic religious minorities in a wide variety of circumstances, far more than the handful of instances involving small-vendor objectors to weddings etc. (on which the precedents indicate the RFRA results would be uncertain).

Those letters are archived here at MOJ. To go directly to the post collecting the letters, click here. You can also find them now by clicking on the "Resources" link at the top of the MOJ page (then, on the Resources page, look under "Links"). 

The letter signatories do not always support the particular RFRA-related legislative proposal being considered; for example, some signatories to 2014 Arizona letter took no position on the amendments to the preexisting Arizona RFRA that triggered that controversy. (It also seems worth mentioning, given the context of the controversies, that the signatories have always included supporters of same-sex marriage, including yours truly, as well as skeptics or opponents.)

Hopefully this archive will be a useful resource for scholars, advocates, and decision makers of varying views.

July 10, 2017 in Berg, Thomas, Current Affairs | Permalink

Tuesday, July 4, 2017

Reflections on Freedom in Contemporary Society

Like our colleague, Rob, this Fourth of July caused me to reflect on what it means to celebrate our nation. While we can all say we treasure freedom, I often feel as though that word is an abstract term for many of us. Indeed, most Americans are fortunate to have been born into a state of freedom - in the sense that we are not actual slaves.  Therefore,  when we say we are "thankful for our freedom," do we really have any sense of what it is like to not be free?  I am not sure that someone from my generation who is not in the military can really can imagine a true threat to our free lives in the same way an American who survived Pearl Harbor or the Cuban missile crisis can.  When we see those bumper stickers that say "freedom is not free," do we really understand laying down our lives in order to live outside of a totalitarian regime, end enslavement, or allow others to escape oppression?  I suspect, again with the exception of our veterans of the longest war, not.  I think most of us would be perplexed in identifying what role we play in creating the freedom that we enjoy.

But the truth is we play a significant role in achieving or denying freedom.  If we define freedom more broadly to include more than freedom from totalitarian government or the institutution of slavery, but consistent with the TVPA's definition of modern slavery- we see we have a role to play in ending it as significant as the minutmemen of 18th century New England.  

This point was brought home earlier this week by Pope Francis who reminded us that so much hunger and poverty is cause by the "indifference of many and the selfishness of the few."   While we think of actively supporting an unjust government or the institution of state sanctioned slavery as the only ways in which we remove freedom from others, we are wrong. Our indifference can have the same effect. In a world with an estimated 21 million people working in conditions of forced labor, we must recognize that more people are enslaved today than at any other time in history - including at the height of the Trans-Atlantic slave trade. We also know through research that poverty and hunger are major causes of modern day slavery - operating as factors that push people into conditions of forced labor or sex trafficking. 

Therefore, every time we ignore or are indifferent to the hunger and poverty of others, we are encouraging modern day slavery. On this  Fourth of July, the Holy Father's words implore is to do more than eat hot dogs and apple pie and appreciate our freedom. Rather, they call us to appreciate our role as consumers or bystanders who, through our indifference, contribute to slavery of others. In the words of Pope Francis, "All of us realize that the intention to provide everyone with his or her daily bread is not enough. Rather, there is a need to recognize that all have a right to it...." Therefore, perhaps we can celebrate this freedom by - as consumers and bystanders - working to eliminate the enslavement of others and truly appreciate freedom in a new way. 

July 4, 2017 in Leary, Mary G. | Permalink