February 21, 2014
"The Dark Power of Fraternities"
Caitlin Flannagan's article at The Atlantic, "The Dark Power of Fraternities," is necessary reading for anyone connected with higher education--whether as a parent, a student, a teacher, an administrator, an alumnus, or any combination of these or other connections. The article should be of interest to MOJ readers for many reasons, including its discussion of the morally ambiguous roles of lawyers. It is not a "hit piece," but it does hit fraternities and universities hard, even while acknowledging that fraternities serve many good purposes.
Euthanasia for Children in Belgium: WWJD?
Mary Jo Anderson has written a wonderful essay on Belgium's recent approval of a law permitting children to "choose" euthanasia, on the Crisis Magazine website, Mocking Compassion: Euthanasia Beyond Belgium. She points out something that should make it simple for Christians to cut through all the tortured reasoning about 'compassion' and 'choice' and 'suffering' that swirls around in euthanasia debates. She writes:
Christians can take their cue on the question from Malcolm Muggeridge: “Jesus healed the sick, raised Lazarus from the dead, gave back sanity to the deranged, but never did He practice, or include, killing as part of the mercy that occupied His heart. His true followers cannot but adopt the same attitude.”
February 20, 2014
On the Religion Law list of legal scholars, as you might imagine, considerable attention has been given in recent days to the contraception mandate cases pending before various courts. During those discussions, I posted a message designed to challenge that largely skeptical audience to entertain the possibility that women and men of intelligence and good faith could reasonably depart from the conventional wisdom in academia that artificial contraception is essential to human progress and gender equality. With that in mind, I suggested that a counter-cultural community grounded in such values should be, not just grudgingly tolerated, but liberally allowed the breathing room to thrive in a diverse and free society.
Because I received so many encouraging private messages, from across the political spectrum and from those on both sides of the contraception debate, I am setting out that message below:
Following up on yesterday’s conversation, let me approach the question of Catholic resistance to the contraception mandate as a plea for something more than grudging tolerance of different opinion but rather a request for a more “liberal” acceptance of a community with an alternative view of the good life. At the outset, I emphasize that my primary purpose here is not to persuade you that this alternative view is better. I am not even arguing today that those who advocate for ready and cost-free access to artificial contraception should refrain from advancing that policy preference through political means. My aim of the moment is much more modest, which is to contend that in a free and diverse society, public policy should leave ample breathing room for a community with a counter-cultural understanding on these important questions.
I appreciate that contraception is widely viewed throughout the academy as an unalloyed positive social good, even a “revolutionary” and necessary step for women’s equality. Indeed, it would not be an exaggeration to describe the pro-contraception position as the privileged narrative in the academy. The contrary view is seldom heard in the halls of the typical law school and not much respected on the irregular occasion that it is voiced. Those who resist the use of artificial contraception are regarded at best as being quaint or in need of consciousness-raising and are seen at worst as retrograde believers in a subservient role for women as incessant baby-makers. Through this post, I want to challenge this group of open-minded scholars to entertain the possibility that women and men of sound mind and good heart, many of “feminist” inclinations, can reasonably and even joyfully embrace an alternative worldview that embraces sexuality as a gift but excludes artificial contraception.
The perspective that I sketch here, inartfully, is that shared with me by many friends, colleagues, and former students—Catholic women who accept the Church’s teaching on sexuality and contraception, not as a rigid doctrinal imposition, but as a gift. And these are successful professional women, who have satisfying careers as lawyers or law professors, which they have integrated with fulfilling personal and family lives. For on-line examples of these voices, although I do not know these women personally, I suggest these links: http://catholicmoraltheology.com/catholics-contraception-and-feminisms/ and http://www.integratedcatholiclife.org/2012/07/lorraine-murray-catholic-womans-journey-with-contraception
For the orthodox Catholic women that I have known in professional settings, they have not experienced the ready availability of artificial contraception as liberating. Rather, they have seen the assumption that all women use (or should use) artificial contraception as serving to fuel the hyper-sexualized environment on college campuses, leading to the familiar “hook-up” culture and its devaluation of human sexuality and degradation of women. Rather than seeing contraception as enhancing equality, these women have seen the presumption of contraceptive use as encouraging men to behave irresponsibly and to treat women as sexual conquests. In sum, by resisting the contraception narrative, these women have set a different path for romantic relationships. They believe they have achieved healthier relationships with men.
When these professional women marry, they engage in discourse and planning with their husbands about children, a dialogue that cannot be avoided because contraception is not used to make it possible to avoid the question. Contrary to the absurd suggestion that women who do not use artificial contraception typically have ten to twenty children, these women know that family planning and artificial contraception are not synonymous, and they insist that modern women have not lost all capacity for self-control. While they may choose to have larger families than the norm in some circles, the professional Catholic women that I know who joyfully follow Church teaching have families with children ranging in number from a single child to about half a dozen, with most in the two or three range.
Now let us suppose that a particular Catholic community—a Catholic university, let us say—wishes to build an oasis in which young men and women have an alternative to the contraception culture that dominates most of society. This university builds single-sex dormitories and adopts what we’ll label “parietals” that call for person of the opposite sex to leave a student’s dorm room after a certain time each night. Every student admitted to the university (and every faculty or staff member employed by the university) is well aware of the Church’s teaching and of the university’s considered policies in accordance with that teaching.
Knowing that their students are real people and not angels, the Catholic university leadership understands that not all young men and women on campus will succeed in living what they believe is a healthier and more satisfying lifestyle. But a critical mass of students (and faculty and staff) will so succeed within a supportive environment, quite different from that which prevails at most universities. And not wanting to be oppressive, university leaders certainly will not invade the privacy of students (which itself would be a violation of human dignity) by searching their rooms to ensure that no one brings artificial contraception on campus. But the university will in no wise facilitate or encourage artificial contraception.
For these reasons, as a faithful witness to the community and as an encouragement to students to live faithfully, this Catholic university will not permit artificial contraception to be dispensed on campus and will not associate itself in any way with those who market or distribute such artificial contraception. Not wanting to give any scandal or tarnish in any way the Church’s message about the sacred beauty of human sexuality, the university refuses to cooperate or be complicit with distribution of artificial contraception.
Now shouldn’t a genuinely “liberal” and free society not merely tolerate but leave ample breathing room for a community that adopts an alternative view of what it means to thrive as human beings? Shouldn’t we strive for a public policy respectful of diversity that does not suffocate these countercultural views by all-embracing mandates? Shouldn’t we be alarmed by a governmental orthodoxy that cannot allow this community to march to a different drummer?
Journal of Law and Religion
I am delighted to annlounce that Volume 29, Issue 1, of the Journal of Law and Religion is now available. All of the articles are available online through the JLR's Cambridge Journals Online website, here. All articles will be accessible without charge for the first two months. Print copies should ship to subscribers in the coming week.
February 19, 2014
Jewish and Catholic Approaches to Property and Social Justice
And, here is *another* great-looking event, courtesy of the folks at the Lumen Christi Institute.
Jewish and Catholic Approaches to Property & Social Justice
Hosted by Jenner & Block
Cosponsored by The Advocates Society, The Catholic Lawyers Guild, The Decalogue Society of Lawyers, The Jewish Judges Association of Illinois, and the National Center for the Laity
Free and open to the public. CLE Ethics Credit Pending.
Both Jewish and Catholic traditions teach that each human being is obliged to attend to the needs of the vulnerable and use property for the common good. The obligation to the vulnerable attaches to each person; it even is imposed on the poor oddly enough who are obligated to give something to others (even if what they do is exchange with each other) because the experience of giving to help others is part of what is crucial to human life and something the poor should not be deprived of. The traditional language also understands this to be a commandment from God, which really means part of the structure of the world.
Additionally, both rights and obligations flow from possessing property according to both Catholic and Jewish social justice teaching. The obligation to provide for the poor also forms a core social obligation attaching to the possession of property. From this obligation may arise certain entitlements–these entitlements are a subject of much controversy in our country today. However, there can be no dispute that both religious traditions espouse the subordination of private property to the common good. This discussion will examine the legal, religious, and philosophical grounding for this common belief and consider the legal and political implications that follow.
Some thoughts on the mission of a Catholic law school
I have a short essay, in the current issue of the Irish Rover (an alternative student-run paper at the University of Notre Dame) called "What is the Mission of the Catholic Law School?" Here's a bit:
. . . As we see it, a Catholic law school—like Notre Dame—is able to be a better law school, and to better form conscientious professionals and leaders, precisely because it is Catholic. It is well known that law and lawyering receive a good deal of criticism these days, and much of it is well deserved. Too often, law is seen as a “bag of tricks” to be manipulated by the powerful for their own ends; too often, lawyers are content to regard themselves as “hired guns” or as mere technicians; too often, the formulation of legal rules and policies seems driven simply by partisanship rather than wise and prudent consideration of real-world facts and the needs of the community.
At a Catholic law school, though—and at Notre Dame—we can take comfort, and find inspiration, in the fact that our tradition has taught for centuries that law is an “ordinance of reason” and that its aim is the “common good.” Our faith provides a vision of what law, done rightly, is supposed to be, and really can be. It is not an exaggeration to say that the study and practice of law is elevated, for us, because we know that our human efforts to develop and implement just and efficient laws are reflections of—they participate in—the very mind of God. . . .
. . . At Notre Dame Law School, three words, or themes, come up again and again in our conversations about how we should do what we do, how we can strengthen and enrich this university and about what makes us different from the many other fine law schools. Those words are community, integration and vocation. . . .
The Human Person, Economics & Catholic Social Thought
This upcoming event at the Lumen Christi Institute at the University of Chicago looks really good -- if you are in or near Chicago, check it out (and report back!):
“The Human Person, Economics, & Catholic Social Thought”
a panel discussion with
Gary Becker (University of Chicago)
Francis Cardinal George, O.M.I. (Archbishop of Chicago)
Mary Hirschfeld (Villanova University)
F. Russell Hittinger (University of Tulsa)
Rachel Kranton (Duke University)
February 18, 2014
Ministers of Justice
If I were a real lawyer (and not just a law professor), I would be a prosecutor. For one thing, prosecutors have the coolest title ever. According to the Model Rules of Professional Responsibility, “[a] prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” “Minister of Justice.” How awesome is that?
When I teach law students about the unique role of the prosecutor, and even when I talk to prosecutors themselves, I often get pushback. Students question whether it’s possible for lawyers to step outside their role as adversaries. Prosecutors question whether they have the time and resources to exercise their discretion with the kind of measured moral judgment that the “minister of justice” title implies.
They’re right to be skeptical. With a plea rate of 95-96%, prosecutors serve as judge and jury in most cases, deciding through plea agreements the crime of conviction and, in many cases, the sentence too. Despite the enormous power prosecutors wield, powerful incentives often drive them to take shortcuts, charging harshly and settling quickly even when guilt is not apparent. As legal scholars like Stephanos Bibas, Bill Stuntz, Daniel Medwed, and Ron Wright have detailed, there is often no investigation beyond the filing of the initial police report, and the volume of criminal cases, combined with overwhelmed and under-resourced trial judges, defense attorneys, and prosecutors, prevents robust adversarial testing in all but a tiny fraction of cases.
Despite that depressing backdrop, this week brought good news about the degree to which prosecutors are doing justice in the context of correcting injustice. According to a study recently released by the University of Michigan Law School, 2013 was a record year for exonerations. The National Registry of Exonerations added 87 new cases last year, bringing the total number of exonerations to 1,304 in a 24-year period. While at first blush, that seems like bad news for prosecutors—they got the wrong guys!—there’s a silver lining. According to the report,
[t]hirty-three known exonerations in 2013–-38% of the total-–were obtained at the initiative or with the cooperation of law enforcement. This is the second highest annual total of exonerations with law enforcement cooperation, down slightly from 2012 (39 cases, 49% of all exonerations in that year) but consistent with a pattern we described a year ago: police and prosecutors appear to be taking increasingly active roles in reinvestigating possible false convictions, and to be more responsive to claims of innocence from convicted defendants.
Under the ABA Criminal Justice Standards, prosecutors have a duty to “seek to reform and improve the administration of criminal justice.” “When inadequacies or injustices in the substantive or procedural law come to the prosecutor's attention, he or she should stimulate efforts for remedial action.” Despite that directive, the Innocence Movement has not always found friends among police and prosecutors. In a small number of cases, resistance has been a cover for prosecutorial misconduct, but in most it has been a result of the natural—though misguided—human tendency to ignore evidence that challenges us.
So what is driving the change in prosecutors’ willingness to re-examine closed cases? The best explanation, I think, is that the Innocence Movement has done a terrific job of using cases of wrongful conviction as teaching tools to educate the criminal justice community about the primary sources of error. Rather than point fingers (except in egregious cases of intentional misconduct), attorneys and clinical students involved in innocence litigation have worked to identify systemic problems, from the overuse of jailhouse informants to suggestive identification procedures, that can be improved by changes in law and policy. Not only has their work improved the quality of investigations and prosecutions, but it has made every actor in the system alert to the possibility of error, and consequently more attentive to cases in which known sources of error are present. As a result, today’s prosecutors are aware that even in cases where guilt seems clear, mistakes can be made.
The Innocence Movement deserves credit for its work, but so do the prosecutors themselves. Acknowledging that you (or one of your predecessors) have played a role in depriving an innocent person of his freedom is a bitter pill to swallow. The late Judy Schwaemle, one of my mentors and one of the best, most committed prosecutors I have had the good fortune to know, once shared with me her difficulty in coming to terms with a case of wrongful conviction. She said that even when confronted with DNA evidence proving she had prosecuted the wrong person, it was an intellectual and emotional struggle to acknowledge the defendant was not guilty. The truth was so painful that she tried to explain away the evidence in every way possible. I have to imagine that other prosecutors of goodwill also struggle mightily to come to grips with their fallibility and its consequences.
Given the courage and humility it takes to admit error in this way, I find the trend reflected in the Michigan report especially heartening. It appears that in the postconviction context, prosecutors are increasingly living up to their role as ministers of justice. That is news to celebrate, and a trend I hope will continue.
Posted by Cecelia Klingele on February 18, 2014 at 04:41 PM | Permalink
February 16, 2014
Professor Kaveny goes on the attack
Over at the liberal Catholic Commonweal blog, Cathleen Kaveny, who once labeled me and her then-Notre Dame Law School colleague Gerard Bradley “Rambo Cathlolics,” goes after me again in a post under the charmingly intolerant title “A Catholic Mullah, Now?”
My old friend is unhappy with a little thought experiment I proposed here at Mirror of Justice and at First Things. As she mischaracterizes it, I defended the right of a “hypothetical Muslim school to fire a hypothetical Muslim teacher who is caught drinking, carousing, and publicly flouting Muslim norms, both on campus and off.” In my example, the “teacher” was not a teacher but an administrator, and he wasn’t “caught” doing anything because he didn’t try to hide anything he did—like drinking and buying an interest in a strip club. But lay that all aside; it’s not important.
The important thing is that Professor Kaveny wants to give me a lecture. Then she’s got a proposal for me. Before launching into her lecture, however, she can’t resist a bit of condescending sarcasm: “God bless, Robbie [sic]. The Muslim community in the United States must be so grateful for his attention and advice.”
But let’s lay the insult aside for now, too, and examine the lecture:
“Within the Catholic framework, the decision whether or not to fire a particular teacher is itself a decision subject to moral analysis. It conveys a normative message to the students. It shapes the community and it expresses the community's values. Its moral message is multifaceted; it is not reducible to a simple Facebook "like" or "not like" of the teacher's underlying offence, understood as an abstract moral proposition.”
I suppose this would be illuminating were it not for the fact that everyone already knows: (1) that the decision whether or not to fire a particular teacher is itself a decision subject to moral analysis; (2) that it conveys a normative message to the students; (3) that it shapes the community and expresses its values; (4) that its moral message is multifaceted; and (5) that it is not reducible to a simple Facebook “like” or “not like.”
But please don’t tell Professor Kaveny. For some reason it’s important to her to think that the world—or at least the “Catholic mullahs”—needs her instruction on these points.
Now let’s move on to her proposal. It has four parts. Let’s take them one by one.
1. “Let’s let the Muslim community take care of their own internal decision-making on these matters. Let's focus on the community to which we actually claim to belong—the Catholic community.”
Of course, the point of my little thought experiment was not to interfere in the internal decision-making of the Muslim community. The issue it explores faces every tradition of faith. I was offering a hypothetical case, as law professors and philosophers are wont to do, to identify and test principles. Kaveny, who is both a law professor and a theologian, knows that. But, for some reason, she’s pretending not to know. Let’s return the favor, and pretend that we don’t know she’s pretending.
2. “Let’s agree that there’s a legal right for religious schools, including Catholic schools, to include morals clauses in their teachers’ contracts.”
Happy to oblige.
3. “Let’s agree that there are some instances where it is appropriate for a Catholic school to fire a teacher for morally inappropriate behavior. I gave the example of the two married teachers caught canoodling in the broom closet. But the specifics matter. We can't decide every case according to the most extreme examples of misbehavior. We need to consider each case on its own terms. (And more broadly, in my view, "misbehavior" cannot be interpreted only or primarily as sexual misbehavior.)”
Yes, the specifics matter. We can’t decide every case according to the most extreme examples. No question about that. As to the sentence in parentheses, evidently Professor Kaveny wants us to believe that there is someone somewhere who thinks that “misbehavior” can be interpreted only or primarily as sexual misbehavior. It’s as if people don’t know about fraud, embezzlement, intimidation, alcohol and drug abuse, calumny, partiality, and even worse things that have nothing to do with sex for which people—including Catholic school teachers and administrators—have been fired. But yet again, please don’t let on to Professor Kaveny that people know about these things. It evidently gives her pleasure to think she has instructed us.
4. “Let’s talk about the Montana case–a non-hypothetical case facing our community. Did the school act in accordance with the cardinal virtue of prudence, steadied by justice, and informed and elevated by Christian charity, in firing the pregnant, unmarried school teacher? Did it act in a pro-life manner? Did it teach Gospel values? Robbie, what sayeth thou about this particular case?”
So finally we discover what this is all about! Cathleen Kaveny somehow got it into her head that my thought experiment was directed at the case of a teacher in a parochial school in Butte who conceived a child outside of marriage. And she thinks I devised the experiment to defend a decision to fire the teacher. So she tauntingly fires at me what she clearly regards as some rather pointed questions, imagining that they will reveal my “mullah” like harshness and rigidity.
But there's a problem.
Evidently, Professor Kaveny was not aware that I posted my thought experiment before I had heard about the case of the Butte, Montana teacher. It was not directed at that case at all. When, later, a Facebook friend provided some of its details and asked for my opinion, here is what I said:
“If [the teacher] were repentant, then I, as her fellow sinner, would support keeping her on. I’d even host the baby shower. The example being set for the school children in that case would be one of repentance and forgiveness—loving the sinner, even while rejecting the sin. Of course, if her intention is to flout the Church’s teachings, then it’s a different story. That’s what is going on when a teacher, say, moves in with his or her boyfriend or girlfriend or enters into a civil marriage with a person of his or her own sex—or goes into the strip club business.”
So it turns out that the “Catholic mullah” Kaveny had targeted had in fact proposed what might be described as “act[ing] in accordance with the cardinal virtue of prudence, steadied by justice, and informed and elevated by Christian charity.” Indeed, the “mullah” responded to the teacher’s predicament “in a pro-life manner” and in a way that would “teach Gospel values”—down to hosting the baby shower.
But yet again, please don’t let on that you know. Let’s not disturb her sense of moral superiority to those whom she derides as Catholic “mullahs”—and “Rambos.”
And while we’re at it let’s not point out that it is unfair and prejudicial to use the word “mullah” to suggest harshness and rigidity, just as it would be unfair and prejudicial to use the words “father” or “priest” to suggest a tendency to pedophilia or ephebophilia. We wouldn’t want our friends at Commonweal to think they are being illiberal—that they are falling short of the demands of prudence, steadied by justice, and informed and elevated by Christian charity—when they fail to treat the religious faith of Muslims with the respect with which we would expect others to treat our Catholic faith.
What's In Between the Roses
I had an absolutely wonderful day yesterday at the Seattle University Search for Meaning Book Festival. The two keynotes - one by journalist Katherine Boo, author of Behind the Beautiful Forevers: Life, Death, and Hope in a Mumbai Undercity, and the second by Isabel Wilkerson, author of The Warmth of Other Suns, were tremendously powerful; my own talk on Growing in Love and Wisdom played to a full room, went very well and, as usual, provoked some great questions; the other sessions I attended were great; and I got to spend time (and have a great Thai dinner) with my friend and former colleague Chato, who drove up from Vancouver, Washington to spend the day with me here at the festival. I also got to see my friend Joshua, who lives here in Seattle, as well as to meet a number of other authors with whom I share interests.
There is much I could write about the day, but there is one line that haunted and that continues to haunt me, and it came early in the day, during the morning keynote by Katherine Boo. Boo's book tells the stories of people living in Annawadi, a poor, makeshift settlement in the shadows of luxury hotels near the Mumbai airport. At one point, the brother of a Muslim teenager who is falsely accused of a crime describes himself and the other residents of the settlement in this way: "Everything around is roses and we are the shit in between."
"We are the shit in between." He wasn't being sarcastic. He wasn't trying to shock. He was simply expressing the truth as he saw it. This is how he viewed himself. This is how a beloved child of God thinks of himself!
The entirety of the social doctrine of the Catholic Church begins with the recognition of the inviolable dignity of the human person, a dignity that stems from our creation in the image of God. That all humans are created in the image and likeness of God makes them equally sacred and precious and invests them with a dignity which they cannot lose. In his recent Apostolic Exhortation, Evangelii Gaudium, Pope Francis wrote that “no one can strip us of the dignity bestowed upon us by [God’s] boundless and unfailing love.”
No one can strip another of the dignity bestowed upon him or her, but what does it mean for some people to believe they have no dignity?
What does it do to someone's ability to flourish to believe that they are the shit between the roses?
And what does it say about how seriously we take our obligation to our brothers and sisters that we allow to exist the conditions that cause a young man view himself as so lacking in human dignity?
Note: The above is cross-posted from my blog, Creo en Dios! In response to my post, my friend John Donaghy, who works among the poor in Honduras, wrote this comment - a sad reminder that the feeling of the young man I quoted is not an isolated on:
Thanks for a post that touches the reality of the poor. In places like Mumbai and Honduras, the poor do see themselves as "the shit between the roses." This has been engrained in them by the society around them. In many ways I see that the role of the missionary and the church in general is to help the people see that they are not the shit in between the roses but that they are the rich fertile soil that makes possible roses and much more. Upholding the dignity of people is part of our mission, our way of accompanying the poor.