Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

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Monday, January 12, 2015

The Ideological Fragmentation of Public Law

I am recently back from the annual AALS meeting, during which I attended some of the offerings of the annual "shadow" Federalist Society Conference as well. Both meetings had several worthwhile programs. One of the most interesting features of both conferences was the extent to which political and ideological fragmentation has become more ordinary and prevalent in public law disciplines. I found this to be quite comforting. In this post, I want to explain why, and to describe some of what I saw at the two conferences in this respect. But first, some thoughts on law and religion as a discipline today.

For some time now, I have believed that the political and ideological divides among legal academics in the law and religion field have been growing. They have now reached cavernous dimensions. Paul Horwitz argues in this (superb) piece that law and religion scholars have been in a state of general consensus about free exercise/accommodation issues until extremely recently, but I see things a little differently. The disagreements about free exercise have been manifest at least since I have been studying and writing in the area--about a decade now and probably longer than that. But Paul is right that they have increased dramatically even within that period.

Paul is also right that there was a period of such consensus. But it was a much earlier time. It was the period when, for example, giants including Kent Greenawalt and Doug Laycock and Vince Blasi and Jesse Choper came of scholarly age, the period when Leo Pfeffer’s views were dominant in this area, and only a few outliers arguing for non-preferentialism like James O’Neill existed. One could be a liberal nel vecchio stile and with great complaisance in those days, but still support exotic religions (traditional Christian religions were never really on the agenda), confident in the view that the "great minds” of the past—Jefferson and Madison (Marshall, Adams, and so many others were rarely mentioned)—were on board in spirit. One bought one’s bona fides to argue for relatively expansive free exercise protections (it was the ‘60s and ‘70s, and people should be free to follow their stars and make themselves into whatever they wanted) with iron separationism when it came to establishment. But the bottom line was that one’s Establishment Clause views always drove the boat then, as, it seems to me, they do now. Free exercise in that period was an afterthought—a concession to the unusual and the strange. Sort of like the way many discuss the nature of excuses in criminal law. One is excused for one’s conduct because, notwithstanding its wrongfulness, one makes a concession to human weakness by allowing that one is not blameworthy for that conduct. That’s how religion was perceived—as basically somewhere between odd and wrongful, but not culpable, and therefore excusable conduct which should be accommodated where possible for those in need of such ministrations.  

That period is dead. It has been dead since long before Paul or I started writing about these matters. For those who followed in the wake of the liberal consensus, what happened was—again, beginning from an ever-hardening view of what the Establishment Clause demanded—the end of the ‘60s and ‘70s with its taste for exoticism and weird pluralism. In its place arrived a new zest for notions of equality, nondiscrimination, leveling, and so on. To argue for "pluralism" full stop and for its own sake today is something of an anachronism (this comes through nicely in the column Paul reacts to today by Frank Bruni). Exactly what is there of worth about pluralism as an intrinsic good? In the interim from then to now, sexual equalities of various sorts have gone mainstream (they were not so when the earlier consensus reigned; at least one liberal law and religion scholar of the ancien regime only began to support gay marriage in the last decade or so). Equalities of other kinds have taken center stage.

The illusion of consensus could be maintained, for a time at least, but only until the new egalitarian mandarins were challenged. Those challenges have come in the abortion context and other substantive due process areas. With some exceptions, the challenges have largely failed. But they had never come from the religion clauses proper (or their statutory analogues). Now they have. And they have made manifest the instability of the former consensus and the fact of its breakdown over many years. To invoke religious freedom is no longer to appeal to a commonly recognized constitutional freedom; it is to whistle to your favorite mangy dog.

The consequence today is that increasingly, law and religion scholars share far less common ground than they did 40 years ago. Outside their own political/ideological constituency, they have much more work to do to convince one another of their arguments. Indeed, the fact that some scholars squarely within the liberal consensus are now felt to be raving right-wingers is itself a marker of the fragmentation and polarization of the legal academy. Doug Laycock may be many wonderful and admirable things; but conservative is not one of them. These movements within (and also outside) the legal academy sometimes--perhaps oftentimes—make it feel like legal scholars have less and less to say to one another. On occasion, I have felt this to be an unfortunate feature of law and religion scholarship--exhausting and depressing. More work feels political; less work feels scholarly; and so it goes. One begins to long for other sorts of work.

But the panels that I attended last week at the AALS and Federalist Society Conferences began to persuade me of two things. First, ideological fracture is a more general development in public law in the legal academy. Second, that fracture--and all that it brings--has positive as well as negative features.

On the first issue, on subjects ranging from administrative law to statutory interpretation to executive non-enforcement of the law, and even to the closer-to-home issue of public reason and religious expression, the ideological divides among legal academics are enormous. The panel on administrative law I attended ran the gamut from those supremely invested in the administrative law machine to those supremely invested in destroying it. I don’t know enough about the sociology of administrative law scholarship, but it would surprise me if administrative law panels of the distant past would have represented such a gigantic diversity of views. The tenor of the discussion was less in the nature of a conversation and more about what is ‘mainstream’ scholarship, and why it might be mainstream, with associated commentary about who on the panel could or could not be confirmable to the United States Supreme Court (which is not to say that the discussion was not civil…it certainly was). 

As for statutory interpretation, the superb lunchtime debate on the new statutory challenge to Obamacare persuaded me that King v. Burwell may do to the study of statutory interpretation what Hobby Lobby v. Burwell did to the study of religious accommodation. Textualism and intentionalism are taking on more and more distinctively partisan flavoring, and this will almost certainly reach a sort of climax if textualism takes down the PPACA (footnote: this is a little odd, of course, for those intentionalists out there who don’t toe the progressive political party line, but it worried some statutory interpretation people I know nonetheless).

Perhaps my favorite example concerned a point made by some of the panelists concerning executive non-enforcement of the law: the political valence of non-enforcement, they claimed, seemed a more natural fit for conservative than progressive politics. I’m not sure that is true, though I suppose it might be true if one substitutes “libertarian” for “conservative.” But the explicitly political register in which the subject was being debated drove the point home again. Public law is deeply riven ideologically.

A final example. The AALS sections on Jewish and Muslim law co-sponsored a session on religious reasons in political decisionmaking—that old chestnut, religion in the public square. What was striking to me was that the panel was composed of folks who discussed the perspectives of particular religious traditions on the subject. Jewish, Muslim, and Catholic perspectives, together with a Rawlsian perspective. If you went back 20-30 years ago, and attended an AALS panel on religion in the public square, would you see this composition? Almost certainly not. You would instead see a panel of scholars conversant in, if not wedded to, Rawls’s view of the matter. You would see a panel of philosophers or philosophically inclined scholars discussing the nuances of “public reason.” Of course, you still see such panels in many places. But the fact that this AALS panel was not so constituted—the fact that it was instead constituted by a broad array of very diverse political and religious perspectives—was quite an interesting development.

I have already suggested why the ideological fracture of public law might be a bad thing. There is simply less common ground between members of the academy; discussion is more exhausting; everything feels more political; more feels less scholarly.

But there are advantages too. For one thing, it is almost certainly true that there is simply a broader range of perspectives in public law at this moment than there was 30 or 50 years ago. Breadth of perspective might or might not be a good thing, but I tend to think that if the reasons for narrowness of perspective result from a kind of artificial exclusion of views (intentional or not), then the inclusion of a greater range of viewpoints is positive. It may also be the case that with greater variety of viewpoints comes greater precision in identifying exactly where one stands, as one's opinions come to be challenged from all sorts of angles that were previously hidden from view.

Positive or negative, though, it seems that these developments are here to stay: the ideological fragmentation of public law--at least in many fields--within the legal academy is very much with us. 

January 12, 2015 in DeGirolami, Marc | Permalink

Sunday, January 11, 2015

Catholic Legal Theory as a Part of Catholic Education


One of the disappointments of stepping down from the vocation of teaching is the infrequency of engaging students and fellow teachers about the elements that make a Catholic and Jesuit institution different from other law schools and universities which pursue or claim to pursue academic and institutional excellence. I am certain that this kind of discussion, or at least the need for it, has not dissipated in the current climate of legal education. Thus, I was intrigued by what Autumn Jones presented in her recent The Atlantic article entitled “The New Brand of Jesuit Universities.” [The link to the article is HERE.] Although the article presented many facets of higher education that rely on the modifiers “Catholic” and “Jesuit” which provoke and merit thought and discussion, the published perspectives of many of those interviewed for the Jones article were profoundly marred; hence, the nature of the enterprise of Catholic and Jesuit education was acutely misrepresented. If the perspectives offered in this article are the prevailing views of what Jesuit universities are and are not about, they will likely have, in time, an impact on most institutions of higher education which employ the moniker “Catholic.” If this is the case, then it will only be a matter of time for these views to have an impact on our Mirror of Justice project of developing Catholic legal theory.

Ms. Jones points out several times in her article that the charge of Jesuit universities is the desire, indeed, the necessity to think critically about everything discussed within the walls of the academy. One could well argue that this is the mission of all universities. However, does this really happen? I, for one, think that it does not. First of all, universities today—including those claiming to be Catholic and/or Jesuit—sustain a climate in which certain issues (for example: abortion; sexual and gender identity; sexual morality) which need to be discussed and debated are off limits. To borrow from one prominent American politician, certain matters are “sacred ground” and cannot be questioned. They can only be championed in spite of their dubious nature which often begs but infrequently produces critical thought and debate. A second matter follows: what can be questioned in the cultural milieu today without restraint are the teachings of the Church. This questioning is promoted in such a way that hinders exposition, objective discussion, or a faithful presentation of what the Church teaches and why she teaches what she teaches. While The Atlantic article contends that Jesuit universities are “a testament to the…willingness to confront rather than avoid difficult topics,” I contend that this is often not the case. My contention is based on the fact that I have taught or lectured at half of the Jesuit universities which sponsor law schools.  If one were to try and engage others in an informed and objective presentation and discussion of these “difficult topics” on a Jesuit campus, he or she would likely be marginalized in a variety of ways. Someone close to me once tried in a respectful way to invite discussion and deliberation about the suitability of a drag show and a coming-out ball on a Jesuit campus; he was pointedly reminded that such matters were, in fact, off limits when he was summarily removed from the rotation of priests scheduled to celebrate the Eucharist in the university chapel. Third, the present cultural climate on many of these “difficult topics” sustains an atmosphere in which the “right” to abortion, the legitimacy of same-sex marriage, and the “right” of all to define for themselves (and everyone else) the nature “of existence, of meaning, of the universe, and of the mystery of human life” can never be questioned, critically or otherwise. These subjects are off the table. If you choose to raise them, you do so at your own peril. While the much-celebrated virtue of critical thinking requires patience, objectivity, and respect for and understanding of opposing views, it also mandates the inclusion of pressing issues that requires careful and courageous examination if the truth of the matter is to be sought.

At one point The Atlantic article discusses critical thinking within the framework of exploring variations in “religious ideology”. The choice of the word “ideology” is an interesting one. I would think that if the nature of critical thinking within the realm of Catholic and Jesuit education is being explored, the far better word would be “belief” rather than “ideology”. The term “ideology” might seem to equate tenets of faith, especially those of Catholicism as the subject of Jesuit universities is on the table, with political or other non-religious dogmas. One interviewee pointed out the importance for the members of the university to ask the “meaning questions” regarding faith; in this person’s estimation, the framework for doing this is to take the approach of “invitation Catholicism versus command Catholicism.” I do not think it is really a question of attempting to distinguish “invitation” from “command” Catholicism. Rather, it is a question of whether the Catholic faith and the Church’s teachings are (to borrow from the supporters of the More than a Monologue conference several of us discussed at this site a few years ago [further information HERE]) “clearly stated and articulately defended… in a spirit of dialogue that is proper to an academic setting… [noting that] the strength of these teachings will be quite convincing, based as they are on revealed truth.”

For those of us who have ventured into discussing matters dealing with truth and falsehood in the academic arena, we know that there can be perils of doing so especially in the academic culture of today. But if we also claim to follow Christ, must we not be afraid about doing this? Christ acknowledged that he is the way, the truth, and life; yet, many well-intentioned folks, including a good number of members of Catholic and Jesuit university communities, deny His claim. Taking stock of legitimate academic freedom, this is an odd response especially for those engaged in a work that uses the name of the Society of Jesus. I base this contention on what the Society of Jesus is or what it is supposed to be. Many of the voices quoted in The Atlantic article appear to be ignorant of the nature and raison d’être of the Jesuit order, which its founder Saint Ignatius of Loyola presented in the following manner in the Formula of the Institute (the foundational document of the Society of Jesus):

Whoever desires to serve as a soldier of God beneath the banner of the cross in our Society, which we desire to be designated by the name of Jesus, and to serve the Lord alone and the Church, His spouse, under the Roman pontiff, the vicar of Christ on earth, should…keep what follows in mind. He is a member of a Society founded chiefly for this purpose: to strive especially for the defense and propagation of the faith and for the progress of souls in Christian life and doctrine.

The means for accomplishing this purpose are subsequently outlined in the Formula of the Institute. One of the specific apostolates mentioned to achieve the purpose of the Society of Jesus is education which may well include the development of Catholic legal theory. This is the context in which Jesuit education is supposed to operate; however, it is not mentioned once by any of those interviewed by Ms. Jones. As one who dedicated a large portion of his life to assisting in furthering the purpose of the Society of Jesus, I am deeply saddened by most of the views expressed in her essay. The interviewees quoted in Ms. Jones’s article aver a variety of competing and contradictory alternatives to the authentic purpose of the Jesuit order and the apostolates sponsored by it for attaining the specified goal. A couple of these dubious alternatives argue that distinctive quality of Jesuit education is the mantra of “social justice”.

Without further definition (none is offered), this term that presumably characterizes Jesuit institutions is vacuous. Can you think of any institution of higher education that makes the claim that it is for social injustice? Probably not. If social justice is to mean anything for Catholic educational institutions, it must be presented within the framework of the justice of Christ. For the Jesuit institution more is required than the simple assertion that it is for “social justice”. Yet for many on Jesuit campuses the mere utterance of the mantra is sufficient to maintain its bona fides. At this stage, another question emerges from some of the views expressed in The Atlantic article: is there are substantive distinction between being Catholic and being Jesuit essential to explaining the Jesuit “brand”?

In 1994 David J. O’Brien touched upon the distinction between Catholic and Jesuit in his Conversations on Jesuit Higher Education essay entitled “Jesuit, Si, Catholic… Not So Sure.” The distinction O’Brien examined is evident in the opinions of several of those persons interviewed for The Atlantic article. As one employee of a “Jesuit” school asserted, “We hide the word ‘Catholic’ from prospective students… We focus on the Jesuit piece rather than the Catholic piece.” While such an attitude is antithetical to the definition of what it means to be “Jesuit” as defined by the Formula of the Institute, there it is nonetheless. This misapprehension about what is constitutive of Jesuit education is apparently held by some charged with the governance of these schools that rely upon the name “Jesuit”. As one member of a board of trustees was quoted, “We’re more concerned with the Jesuit way than with Catholicism.” Strangely this contradicts the Formula of the Institute; moreover, it disregards the valuable insight of Avery Cardinal Dulles who, in describing the nature of Jesuit higher education, stated that the Jesuit element must be “an intensification” of its Catholic element.

Another perspective found in The Atlantic article contends that “it’s ultimately out of the university’s hands as to whether it retains its Catholic identity… it’s up to the Catholic Church.” While it is true that competent ecclesiastical authorities have, under the law of the Church and the documents of the Second Vatican Council, the authority to determine who can and who cannot use the moniker “Catholic,” it is not the Church who really imposes the nexus; it is an exercise of the authentic freedom of the school itself to decide whether it wishes to be a Catholic institution or not. While it may seem to be Catholic insofar as it has religious symbols like crosses and crucifixes on the campus, it is finally the decision of the institution to live and express its Catholicism or not in everything that it does. If it asserts that it is Catholic, then it must affirmatively demonstrate that this is so by living and proclaiming the Good News and through adhering to two thousand years of authentic Catholicism. To borrow from the title of the article from The Atlantic, the brand name may be there; however, whether it is the genuine article or a counterfeit knock-off is up to the institution’s fidelity to the prescriptions set down by Saint Ignatius. Truth in advertising is vital to the authenticity of the claim that a school is Jesuit. If I may borrow from the Formula of the Institute, whosoever desires to serve as a Jesuit institution should keep what follows in mind: that the Jesuit order was founded for this purpose, which is “to strive especially for the defense and propagation of the faith and for the progress of souls in Christian life and doctrine.” I fear that in today’s climate many students, faculty, and administrators who believe they are a part of Jesuit education would find it difficult to endorse this essence of what it means to be Jesuit.

Let me conclude today’s posting with this thought. I think that Autumn Jones has done a great service by publishing her article upon which I have commented here. Her essay can serve as a catalyst for folks who are supportive of and concerned about the status of Jesuit and Catholic higher education to reflect critically upon what is at stake so that the enterprise of Catholic higher education may flourish. For those who believe that Christ is the Lord and Savior of the human person, let us not be afraid to follow Him rather than the sirens of the present age who think and claim that they are a part of the enterprise molded by Ignatius but, in fact, are not. Christ engaged the world for the particular objective of human salvation, and this purpose became that of Ignatius of Loyola. May this end be unambiguously reflected in the lives and work of those who follow the Son day after day on the campuses that claim to be Jesuit and Catholic. This work is not one of imposing but of proposing the objective for which the Jesuit order was established.


RJA sj

January 11, 2015 in Araujo, Robert | Permalink

Saturday, January 10, 2015

Chaput: "Each of our lives matters."

In the January issue of First Things, Archbishop Chaput's 2014 Erasmus Lecture, "Stranger in a Strange Land," is featured.  I thought is was excellent, and was really moved by the closing paragraphs:

Each of our lives matters. Our journey does not end in the grave. What we do has consequences for our own eternity and those around us. Our lives gathered together as communities of faith and as a nation shape the conscience and the future of the “city upon a hill” that John Winthrop imagined and that we have inherited.

We were made by God to receive love ourselves and to show love to otherslove anchored in the truth about the human person and the nature of human relationships. That’s our purpose. That’s why we were created. We’re here to bear each other’s burdens, to sacrifice ourselves for the needs of others, and to live a witness of love for the God who made us—not only in our personal lives, but in all our public actions, ­including every one of our social, economic, and political choices. 

These words remind me of a C.S. Lewis passage, one that I've quoted in several of my own academic papers:

“There are no ordinary people. You have never talked to a mere mortal. Nations, cultures, arts, civilizations - these are mortal, and their life is to ours as the life of a gnat. But it is immortals whom we joke with, work with, marry, snub and exploit - immortal horrors or everlasting splendors. This does not mean that we are to be perpetually solemn. We must play. But our merriment must be of that kind (and it is, in fact, the merriest kind) which exists between people who have, from the outset, taken each other seriously - no flippancy, no superiority, no presumption.”


January 10, 2015 in Garnett, Rick | Permalink

Garvey, "Religious Freedom and the Love of God"

It's a few years old, but I stumbled across it again and thought that it definitely deserves regular re-reading.  Here is John Garvey's address, in June of 2012, to the USCCB, "Religious Freedom and the Love of God."  A bit:

. . . One thing we can say is that there has been a decline in respect for religious liberty. We can measure this in two ways. Think about a suit of armor. One measure of its protection is its scope, or the extent of its coverage. (A bulletproof vest covers the heart and lungs. A knight’s armor covers from head to toe.) The other measure is its strength. (A suit of armor will protect the knight against arrows but not against armor-piercing bullets.) 

Religious liberty these days is given a lot less scope. It protects priests but not teachers, Loyola but not St. Xavier, religious orders but not hospitals. Religious organizations like schools, hospitals, and Catholic Charities provide the public with valuable services. The government lets them do this work, but it is blind to their religious dimension. The problem with this way of parsing the work of religious institutions is that they do their work because of their religious beliefs. Catholic Charities does adoptions because the gospel tells us to care for the weak and vulnerable. Catholic universities exist because the gospel tells us to teach all nations. Migration and Refugee Services lives out the teachings of the Sermon on the Mount and Matthew 25. This is the heart of the Christian religion. Serving others – not just Catholics; all others – is not just a recommendation. It’s a requirement. 

Religious liberty also has less strength. It is weaker than it once was. This happened as a matter of constitutional law in 1990 when the Supreme Court traded the rule of Sherbert v. Verner2 for the rule of Employment Division v. Smith.3 The first amendment rule once was that religious liberty is protected unless the government has a compelling reason to override it – like protecting the national security in time of war, or preventing the taking of innocent life. Now the rule is that religion is protected against discrimination; but otherwise the government can ignore religious claims for any legitimate reason (like the aesthetic preferences of a historic preservation code). 

Smith invited religious people to seek protection from the elected branches of government rather than the judiciary, as a matter of statutory and regulatory law rather than constitutional law. In the last year we have seen the elected branches deny that protection. When the law forces Catholic Charities to choose between living the beatitudes and affirming behavior (like gay marriage) that the Church proscribes, freedom of religion is altogether lost. Catholic Charities has to set aside one or another of its beliefs: either the charity or the obedience they are called to in the gospel. . . .

January 10, 2015 in Garnett, Rick | Permalink

"Silence" is coming!

Great news:

Paramount Pictures is in talks to acquire U.S. distribution rights to Silence, and the tentative plan is to release the film November 2015, right in that holiday corridor where awards-bait pictures dwell. Silence is one of those pictures on Scorsese’s bucket list, an adaptation of the Shusako Endo novel that Scorsese has longed to make for more than a decade. The project finally came together whenEmmett/Furla/Oasis Films principals Randall Emmett and George Furla committed the production financing, with Corsan Entertainment co-financing. Shooting will get underway in Taiwan. The film takes place in the 17th century, where two Jesuit priests face violence and persecution when they travel to Japan to locate their mentor and to spread Christianity. The script is by Scorsese’s Gangs Of New York scribe Jay Cocks, and the filmmaker has pulled together a cast including Liam Neeson, Andrew Garfield, Ken Watanabe and Adam Driver.

January 10, 2015 in Garnett, Rick | Permalink

Human equality without God?

Many, including our own Michael Perry, have explored the question whether the "morality of human rights", or claims about "human dignity", are meaningful if it is not the case that human beings are created, sustained, and loved by God.  In this piece ("If There's No God, Are Humans Equal?"), philosopher Christopher Kaczor engages a version of the question.  (The piece of a review of  Our Declaration: A Reading of the Declaration of Independence in Defense of Equality, by Danielle Allen.)  He asks, "[h]uman equality clearly ­cannot rest on qualities such as wealth, virtue, and intelligence, which are ­unequally distributed among us. So, what is it that makes all of us equal?"  Good question!


January 10, 2015 in Garnett, Rick | Permalink

A papal witness for the defense

My comments posted here at MoJ and at First Things regarding papal authority on empirical questions of the sort investigated by the natural sciences (such as the questions at issue in the debate over climate change) have drawn skepticism (and even allegations of bad faith) in some circles. This despite the fact that none of the critics seems willing to say that my account of the Catholic understanding of such authority is erroneous. Their complaint seems to be with the timing of my comments. And some even suggest that I'm ignoring the "fact" (as they imagine it to be) that there is no legitimate scientific debate about climate-change issues, since they are "settled." The allegation is that my comments are meant preemptively to license dissent from the encyclical letter on the environment that Pope Francis is preparing.  And so:

The defense calls as its witness Jorge Bergoglio:

"Now, it's not an easy issue because on the protection of creation and the study of human ecology, you can speak with sure certainty up to a certain point then come the scientific hypotheses some of which are rather sure, others aren't. In an encyclical like this that must be magisterial, it must only go forward on certainties, things that are sure. If the Pope says that the center of the universe is the earth and not the sun, he errs because he says something scientific that isn't right. That's also true here. We need to make the study, number by number, and I think it will become smaller. But going to the essence is what we can affirm with certainty. But, you could say in the notes, in the footnotes, that this is a hypotheses and this and this. To say it as an information, but not in the body of the encyclical which is doctrinal and needs to be certain."  (Source: http://www.catholicnewsagency.com/news/full-transcript-of-popes-in-flight-interview-from-korea-96141/)

(Thanks to my friend Matthew Byrne for the source.)

January 10, 2015 | Permalink

Friday, January 9, 2015

Interesting Speech/Law & Religion Case Before the Supreme Court on Monday

The Supreme Court’s January calendar begins next week with argument in Reed v. Town of Gilbert, Arizona, a law and religion case that has gotten very little attention. The case relates to some of the issues that Mark Movsesian and Perry Dane have been talking about over at CLR Forum involving the New York City subway regulations concerning advertising. I found Perry’s phrase, “mental maps,” to be useful in thinking through the categories that we use to divide up both meanings and the motivations for expressing certain meanings. This case tests our mental maps.

It seems that the Town of Gilbert has a complex set of regulations governing the display of signs. It categorizes signs into five groups: political signs, ideological signs, “qualifying event” signs, homeowners’ association temporary signs, and real estate signs. Different rules regarding the size, duration, and location of the sign (among other variables) apply depending on the category of sign that one wishes to display.

The petitioners in the case are representatives of the Good News Community Church, a small Christian church that “holds services on Sundays, where attendees worship and fellowship together, learn biblical lessons, sing religious songs, pray for their community, and encourage others whenever possible.” Good News depends on signs to advertise its presence and invite people to join.

The Town has classified Good News as the sort of organization entitled to “qualifying event signs.” A “qualifying event sign” is a “temporary sign intended to direct pedestrians, motorists, and other passersby to a ‘qualifying event.’ A ‘qualifying event’ is any assembly, gathering, activity, or meeting sponsored, arranged, or promoted by a religious, charitable, community service, educational, or other similar non-profit organization.”

By contrast, a “political sign” is a “temporary sign which supports candidates for office or urges action on any other matter on the ballot of primary, general and special elections relating to any national, state or local election.”

And an “ideological sign” is a “sign communicating a message or ideas for non- commercial purposes that is not a Construction Sign, Directional Sign, Temporary Directional Sign Relating to a Qualifying Event, Political Sign, Garage Sale Sign, or a sign owned or required by a governmental agency.”

The petitioners’ basic complaint is that by lumping the Church in with organizations entitled only to a “qualifying event” sign, the Town is engaging in viewpoint discrimination against it, because it is only entitled to a tiny sign of very limited duration that can only be displayed in limited locations. The Town’s justification for this highly reticulated set of requirements and classifications? “Safety and aesthetics.” Also of interest is that at some point in the procedural history (which looks rather involved), the Town amended certain locational requirements for “qualifying events signs,” replacing them with a requirement that “qualifying events signs” must “relate to events in the Town of Gilbert.” That requirement does not apply to political or ideological signs. The Church claims that this amendment was made specifically to target it for unfavorable treatment.

At any rate, it will be interesting to see how the argument goes. Here is an interesting contrast contained in the Petitioners’ Brief:

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UPDATE: Here is our own Tom Berg's post from this past September linking to an amicus brief by the UST Religious Liberty Appellate Clinic in the case in support of the church--cogent and well written, as always (h/t John Inazu, whose own arguments about the freedom of assembly may make an appearance...stay tuned).

January 9, 2015 in DeGirolami, Marc | Permalink

Merrie Melodies presents: "A Winters Tale"

For reasons I cannot fathom, Michael Winters of the National Catholic Reporter seems determined to cast himself as the Wile E. Coyote of contemporary liberal Catholicism. His elaborate efforts to capture his prey—his roadrunners are those “culture warrior” bishops (such as Charles Chaput of Philadelphia) and Catholic intellectuals who are too zealous for his taste in defending the Church’s teachings on life, marriage, and sexual morality—inevitably backfire, usually comically and sometimes humiliatingly. But he intrepidly keeps at it, hoping against hope, I suppose, that his next effort will finally bring success.

Earlier this week, I was the roadrunner, as from time to time I am. In a piece first posted here at MoJ and then re-posted by First Things and some other sites, I had offered four points to bear in mind about the teaching authority of the papal magisterium as we await the encyclical letter Pope Francis is preparing on our moral obligations concerning the natural environment. They were drawn from the teaching of the Church herself (in Lumen Gentium and the Catechism) about magisterial authority. But Wile E. Coyote perceived in my stating them a nefarious purpose:

“Professor George . . . set[s] out a nearly pitch-perfect set of talking points for minimizing the impact of whatever it is the Holy Father will say, that is, advancing his own conservative political agenda.”

And, he thinks, he can prove it!

He quotes this sentence from my post:

“The Pope has no special knowledge, insight, or teaching authority pertaining to matters of empirical fact of the sort investigated by, for example, physicists and biologists, nor do popes claim such knowledge, insight, or authority.”

Now anyone who knows anything about Catholic teaching on papal authority knows that this proposition is, not to put too fine a point on it, undeniable. If the Pope wants to know whether it is going to rain tomorrow, he has no hotline to the Holy Spirit on the subject. Weather patterns are (to hew closer to the Church’s understanding of its authority) no part of the deposit of faith, complete at the death of the last Apostle, which the Pope and the bishops with him are protected from error in formally defining and clarifying over time. When it comes to meteorology, the Pope has to do what you and I and everyone else must do: consult the meteorologists.

But Wile E. Coyote nevertheless thinks he’s finally got the prey in his grip.  So he goes for it.

The sentence, he labors to explain, “suffers from several difficulties. First, the pope does have knowledge that you and I do not have, and that I suspect Professor George does not have: He listens to the bishops throughout the world and knows what concerns they have regarding the environment and other matters of moral concern.”

Let’s hit the pause button for a chuckle. I had pointed out that popes have no special knowledge regarding matters of empirical fact of the sort investigated by natural scientists. Mr. Winters tries to contest the point by saying that popes “listen to the bishops throughout the world and know what concerns they have regarding the environment and other matters of moral concern.” Thus does Wile E. Coyote’s explosive go off in his hand.

Obviously the concerns about which popes may consult bishops are not “knowledge pertaining to matters of empirical fact of the sort investigated by, for example, physicists and biologists.” Look, I love Archbishop Chaput, for example—I admire him as much as Mr. Winters seems to despise him. I think he is a man of enormous wisdom and profound goodness. But if I want to know whether I ought to bring an umbrella to work, I don’t call him; I go to weather.com. Popes do much the same thing (though I don’t know their preferred meteorological websites). They rely on scientists to do the science, not bishops. If there is a dispute among scientists as to whether the climate is changing in disastrous ways and whether human activity is partly to blame, popes cannot resolve it by consulting their brother bishops or reading the scriptures or reviewing the Church’s tradition.

At some level, it seems, Winters is aware of this. So the Coyote has a back-up plan. Actually, he insists, there is no meaningful dispute among scientists—at least among qualified ones. Back to the cartoon:

“I am also surprised that someone of Professor George’s sophistication and learning is so quick to equate the arguments of believers and skeptics regarding climate change. To repeat, no Catholic should think that just because some conservative think tank can find a couple of off-the-radar professors who think climate change is just dandy, they can then claim that we can consequently ignore what the pope teaches.”

Then, on cue, the Koch brothers are brought on to the stage (as they are these days in most liberal polemics) as a way of insinuating that the crank scientists who don’t go along with liberal orthodoxy on climate change are motivated by venality.

Shall we watch the explosive go off in the Coyote’s hand again?

Who are these “off-the-radar professors” whose palms the Koch brothers are greasing to put in appearances at the Heritage Foundation and Cato Institute to deny the undeniable?  Rather inconveniently for the Coyote, they include some of the most famous and on the radar scientists in the world: for starters, there is physicist Freeman Dyson of the Institute for Advanced Study; eminent climate scientist Richard Lindzen of MIT; physicist and sodium laser guide star inventor William Happer of Princeton; Nobel Prize-winning physicist Ivar Giaever. 

Mr. Winters asks:

“Would Professor George assert that if some scientists argue that humanlife begins at birth, we can dismiss what the pope says insofar as it is based on a different scientific belief about when human life begins?”

Let’s lay aside the absurd insinuation that I urged “dismissing” anything the Pope says.  That’s just more polemical foolishness. The first thing to note about his hypothetical example is that it gains its apparent force from a false analogy. There is no scientific debate about whether birth transforms an inanimate object into a living one, or a biologically non-human creature into a member of the species Homo sapiens. No one who knows the first thing about mammalian biology could entertain such loony notions.

And the question of when a new human being comes into existence is in the first instance a biological question, though it has moral, metaphysical, and religious implications. To resolve it, the proper methods of inquiry are scientific, not philosophical or theological.

The Church has not always assumed that the life of a human being begins at conception. She only began teaching that—or, more accurately, teaching moral norms specified in light of that—when modern embryology, which began with Karl Ernst von Baer’s discovery of the mammalian ovum in 1826, established it. Before then, neither bishops nor anyone else had any clear idea of what conception was. That information was certainly not to be found in scripture or tradition, the data of the faith that the Holy Spirit protects popes and bishops from distorting, in the exercise of their duty to hand it on intact.

Mr. Winters says:

“Of course, we Catholics believe that from the moment of conception a human life is present that deserves protection and possesses dignity. Even if that life is not yet individuated, and cannot therefore possess rights the way an individual can possess rights, the potential of that life is precious and must be honored.”

The reference to a “life that is not yet individuated” shows, I suspect, that Winters himself doesn’t understand the biology of embryogenesis and early intrauterine human development. Monozygotic twinning, which must be what he has in mind here, is not something that “individuates” a “non-individuated” embryo, nor is birth the event that individuates the child, who certainly pre-exists it.

He also doesn’t understand the Church’s moral teaching, which is not that a “non-individuated” life “cannot possess rights the way an individual can possess rights” or that mere “potential of that life” is to be honored. Indeed, this is a travesty of the Church’s teaching.

We honor, and are taught by the Church to honor, human lives, not their “potential.” We honor, and are taught by the Church to honor, the life of every human being at every stage of development, including the infant, fetal, and embryonic stages. That’s what it means to say that human beings possess inherent dignity and rights. Our status as persons is not accidental and acquired. We come into being as persons and do not cease being persons except by ceasing to be (i.e., dying). 

But now let me reformulate Mr. Winters’ question to make it a more serious and interesting challenge: If the credible science told us that life began some time into pregnancy (but before birth), would I say that faithful Catholics could disagree on when ending a pregnancy meant killing a person?

Yes. Thomas Aquinas was no heretic for thinking, based on the best data available to him, that human beings came to be at some point after the start of pregnancy. To be sure, he followed the Church’s constant teaching in opposing all abortion, on the ground that non-lethal contraception is also gravely wrong. But it wasn’t until much later that it became clear that the Catholic teaching against intentional killing of innocent human beings was relevant throughout pregnancy.

So the difference here between abortion and climate change is not that the Church authoritatively teaches biology but not climatology. It’s that there really is no unsettled scientific question of whether life begins at birth (or even at “viability” or “quickening”). We know that from the earliest embryonic stage what exists is a living member of the species Homo sapiens—one that is numerically identical to the individual who will later be a nine-month old infant, a nine-year old child, and with luck a 90-year old woman or man.

Hence, the denial of the unborn child’s right to life does boil down to rejection of a specifically moral principle taught by the Church. No informed observer today—certainly no biologist counterpart of a Dyson or a Lindzen—could believe that birth marked an inanimate object’s transformation into an organism (human or otherwise). (Of course, a biologist might still be pro-choice, but only on moral grounds that the Church does authoritatively reject: i.e., the idea that not all human beings are persons with a right to life.)

I doubt that even the Koch brothers—who, perhaps I should point out to soften Mr. Winters’ attitude toward them, are pro-choice on abortion and pro-gay marriage, like so many of the political figures admired by Winters and his colleagues at National Catholic Reporter—could pay a biologist enough money to induce him to make the buffoonish claim that science tells us that human life begins at birth.

Indeed, even the most ardently pro-choice philosophers have pointed out to fellow abortion supporters that the debate is not about whether abortion takes the life of a human being. Clearly it does. Peter Singer, for example, pointed this out in a letter to the New York Times correcting those who have ignorantly depicted the debate as a question of “when life begins”; Ronald Dworkin, in a book devoted to defending abortion, characterized abortions as “choices for death.” The abortionist’s objective is not to deliver a live baby (which is one way of “terminating a pregnancy”) but rather to bring about, in the chillingly clinical language of the abortion manuals, “fetal demise.” The abortion debate is about something non-empirical, something moral: do human beings in all stages and conditions have dignity and a right to life? It is on this non-empirical question that the Church claims authority (though even the basic moral insight is one that she believes is rationally accessible apart from revelation). And she has been able to specify her moral teaching in light of the biological facts only because scientists, employing the proper methods of scientific inquiry, have discovered them.

January 9, 2015 | Permalink

Tuesday, January 6, 2015

Beever on the value of law as an object of contemplation

This past summer, Marc DeGirolami linked to Allan Beever's The Declaratory Theory of Law. I recently had occasion to read another piece by Professor Beever: Formalism in Music and Law. The concluding section touched a chord, so to speak, such that I thought I would pass it along to MOJ readers. Here's a bit:

Of course, music has its functions. Its most significant function is to give pleasure to listeners. But its ability to do this would be almost entirely eliminated were listeners to attend to its function rather than its form. The final movement of Mozart’s Symphony no 41 in C Major, K 551 contains the most breath-taking combination of sonata form and fugue. This astonishing achievement can afford us enormous pleasure. But a ‘listener’ who focused on her own pleasure would fail to hear it and would in all likelihood be bored. Music is cognitive. It does not work like drugs and its effect on us is not the same as its effect on cows (apparently, cows produce more milk when they are played classical music).

Of course, no such argument can be constructed for law. The law is not justified as an object of contemplation. But there remains an illuminating analogy here. Part, only a small part, of the value of law flows from its being an object of contemplation. In a very similar way to music, it enriches the lives of many lawyers. Do we not sometimes revel in the law’s intricacies and delight in its complexities? Is it not true that much of the pleasure of studying the law comes from such? Can we not describe law as, in some way, beautiful? If that sounds just too outlandish, it is worth remembering that many mathematicians swear that mathematics is beautiful and frequently compare it to Bach’s music. If mathematics can be beautiful, surely anything can be. These questions are not rhetorical. Those who hold that legal categories are a mere smokescreen for policy must answer them in the negative. For them, the canvas of the law is really a window to be seen though. They appreciate law as the owners of cows appreciate music (‘Yay, more milk. Isn’t Mozart great?’).


*** What does contemplation of the law reveal? The law, of course. But that is not all. When we treat it as an object of contemplation in its own right and not as a window to be seen though, it also reveals justice. And we are in desperate need of this. *** [W]e are so powerfully affected by functionalism that many of us cannot see the world beyond it. It is no surprise, then, that many want to look through the law to its alleged functions. But just as contemplation of art can change the way that we see the world, so can contemplation of the law. It is often rightly said that wheat fields never look the same after one has seen van Gogh’s paintings of wheat fields; and, to one captured by functionalism, the world will never look the same again after attending to the law. That contemplation is possibly the most powerful experience of justice as a pervasive phenomenon that it is possible to have.

January 6, 2015 in Walsh, Kevin | Permalink