Harmonizing Plural Societies: The Cases of Lasallians, Families, Schools – and the Poor

The modern state characteristically assumes or asserts a monopoly over “group persons” and their right to exist; group persons are said to exist at the pleasure or concession of the state. According to Catholic social teaching, by contrast, these unities of order -- such as church and family, as well as corporations and schools and the like -- are, at least in potency, ontologically prior to the state. Such group persons both constitute conditions of the possibility of human flourishing and, correlatively, impose limitations on the “sovereign” state. Such group persons are not mere concessions of an unbounded state: They are ontological realities that must be recognized by the state and, as necessary or apt, regulated or assisted according to the principle of subsidiarity, properly understood. This Article studies how the current failure in the United States to respect both the reality of group persons and the proper application to them of the principle of subsidiarity frustrates the work of families and churches in the concrete conditions of America today. In particular, the Article demonstrates how the Lasallian order, which for centuries has served the poor through education, has lost its ability to continue that work in the U.S. today. Law and policy shaped by respect for group persons and the principle of subsidiarity could, without violating the Establishment Clause as currently authoritatively interpreted, come to the rescue of family, church, and poor children. Catholic social doctrine points toward a limited state that serves not just individuals, including individuals in poverty, but the societies in which individuals reach the ontological perfections of which they are capable

The Place of \u27Higher Law\u27 in the Quotidian Practice of Law: Herein of Practical Reason, Natural Law, Natural Rights, and Sex Toys

The question of the place of higher law in the ordinary practice of law is even now dogged by the brooding omnipresence caricature. This Article seeks to introduce and apply a philosophically defensible account of natural law, the one defended by Thomas Aquinas, to various problematics of contemporary law and jurisprudence. The Article argues that such higher law is not so high as to be relevant only to sexy constitutional questions, as is often supposed, but to everything we do in law. The Article argues that liberals and conservatives alike should acknowledge both the place of natural law in the positive law and the contingent/prudential limits on judges\u27 authority to speak the natural law directly from the bench. Much of the Article is framed as a response to Steven Smith\u27s Law\u27s Quandary (Harvard 2004)

The Mighty Work of Making Nations Happy: A Response to James Davison Hunter

This article is an invited response to James Davison Hunter’s much-discussed book To Change the World: The Irony, Tragedy, and Possibility of Christianity in the Late Modern World (Oxford University Press, 2010). Hunter, a sociologist at UVA and a believing Protestant, claims that law’s capacity to contribute to social change is “mostly illusory” and that Christians, therefore, should practice “faithful presence” in the public square rather than seek to influence law directly. My response is that it is, in fact, law’s stunning ability to alter and limit available choices that makes it an object of deservedly fierce contest. The wild protest over the recent enactment of a “Christianized” constitution in Hungary is illustrative. Hunter worries that law is too much just about power. I agree with Hunter’s argument that for law to represent more than power, it must be linked to a realm that is not reducible to politics. Hunter indefensibly downplays, however, the role of the natural law and of the Church in establishing such an apolitical realm. Hunter’s thesis provides an opportunity to reconsider the modern orthodoxy according to which the ideal is for the state to be “separate” from the Church. The conscience of a free people is not all the spiritual authority there is – and more is needed

The Decreasing Ontological Density of the State in Catholic Social Doctrine

Over the last century-plus, Catholic social thought has gradually reduced the ontological density of the state, to the point that the state now appears to have only a tentative grasp on the natural law basis of its legitimacy. During the first part of the twentieth century, Catholic social doctrine tended to view the legitimate state as a participant in the divine rule; although draped in a sacred mantle, the state was subject to the limits imposed by the divine and natural law. In response to the totalitarian states’ transgressing of those limits at mid-century, Catholic thinkers reduced the scope and stature of the state’s place in man’s life in society, while insisting that the state remain tethered to the natural law. Today, however, Catholics and others face a laicized state that utterly denies its obligations under the natural law. While Pope John Paul II eventually responded to this denial by emphasizing the natural law limits on the state, Pope Benedict has instead summoned leaders and citizens to acknowledge and develop a state that is committed to “reason,” even if this means inviting unbelievers to act “as if God exists.” As understood by Pope Benedict XVI, the state, a servant of individuals and diverse societies, is to receive its content and direction from, among other sources, the Church; it is to receive reason purified by faith

“The Pursuit of Happiness” Comes Home to Roost? Same-Sex Union, the Summum Bonum, and Equality

John Locke understood human happiness to amount to the removal of uneasiness. This paper argues that,to the extent that the United States is a nation dedicated to the pursuit of happiness understood as the removal of uneasiness, same-sex unions or marriages should be given legal recognition. While Locke defended a variation on traditional marriage on the grounds of progenitiveness and care for dependent offspring, his more foundational commitment to the importance of the removal of uneasiness precludes, on pain of inconsistency, limiting marriage to opposite-sex couples. This paper argues, furthermore, that conservatives and neo-conservatives who celebrate this nation\u27s being the first creedal nation in history are, when they come to oppose same-sex marriage, hoist of their own creedal petard; the pursuit of happiness leads, for some people, to same-sex union. Locke followed his own logic to a defense of polygamy, and the same logic leads to same-sex unions. The paper concludes that truly principled opposition to same-sex marriage requires the embrace of politics rooted in man\u27s summum bonum, the very project modernity has been out to eradicate. The Catholic Church would be a help to the state in leading man to achieve his summum bonum, but Locke\u27s tolerance does not extend to the liberty of the Church (libertas Ecclesiae), nor, not accidentally, does the U.S. Constitution recognize the liberty of the Church per se. This paper originated as an invited contribution to a symposium on Whether Legal Recognition of Same-Sex Marriage is Constitutionally Required, held at BYU\u27s J. Reuben Clark School of Law in November, 2012. The Lockean logic of Justice Kennedy\u27s majority opinion in United States v. Windsor is unmistakable (if unnamed), even if the Court stopped slightly short of taking that logic for all that it is worth. Given Justice Kennedy\u27s Lockean principles, there is no principled basis for not announcing a constitutional right to same-sex marriage, as Justice Scalia recognized in dissent

“Religious Freedom,” The Individual Mandate, and Gifts: On Why the Church Is Not a Bomb Shelter

The Health and Human Services\u27 regulatory requirement that all but a narrow set of religious employers provide contraceptives to employees is an example of what Robert Post and Nancy Rosenblum refer to as a growing congruence between civil society\u27s values and the state\u27s legally enacted policy. Catholics and many others have resisted the HHS requirement on the ground that it violates religious freedom. They ask (in the words of Cardinal Dolan) to be left alone by the state. But the argument to be left alone overlooks or suppresses the fact that the Catholic Church understands that it is its role to correct and transform society, not merely to be left alone in a gilded cage. This paper uses the HHS mandate as a vehicle by which to clarify the Catholic understanding of the ideal -- but currently mostly unachievable -- relationship between Church and state: the state should receive its principles from the Church, not the Church from the state. Social justice and subsidiarity disallow a state that reduces the Church to the status of a bomb shelter. Leviathan is happy to have the Church out of sight and out of mind