The Moment

The Moment
[Photo by Michelle Agins]

Saturday, February 13, 2016

Antonin Scalia

Antonin Scalia died today. He was one of the longest serving justices in American history. I have written here often about his drawbacks, and the damage his increasingly lawless decisions were causing to the structure of constitutional law. I won't link the posts; I stand by them, but his better side deserves mention too.

I also have noted that he was a firm believer in the Sixth Amendment--the only one on the Court, currently. In early years on the Court, he joined in Texas v. Johnson, defending speech he hated. Even recently, he could surprise, rising to the defense of an increasingly tattered Fourth Amendment. His off the bench writings could be engaging, and in A Matter of Interpretation, he engaged constructively with his critics, exhibiting less pugnacity and more perspicacity.

I think he enjoyed being Antonin Scalia; he was one of three justices (that I can think of) who were the subject of a play. (Scalia, depicted in The Originalist, O.W. Holmes in The Magnificent Yankee and W.O. Douglas (sorta) in First Monday in October).

May he rest in peace.

Thursday, February 11, 2016

"They've Summoned Up a Thundercloud": "Command and Coercion" in 2016

You know, I was really hoping my 2012 Command and Coercion: Clerical Immunity, Scandal, and the Sex Abuse Crisis in the Roman Catholic Church could become irrelevant to the news. But, as John Allen reports at Crux, my thesis remains depressingly relevant:
Given what a cancer the clerical sexual abuse scandals have been for the Catholic Church, one would imagine the Vatican would want new bishops to get a state-of-the-art presentation on best practices in terms of preventing such meltdowns in the future.

The Vatican has been running just such a training course since 2001 for newly appointed bishops around the world, and almost 30 percent of the Catholic prelates in the world today have taken it.

It’s more than a bit surprising, therefore, to discover that at least last year, the Pontifical Commission for the Protection of Minors, the body created by Pope Francis to identify “best practices” in the fight against child abuse, was not involved in the training.


The presentation was entrusted to French Monsignor Tony Anatrella, a consulter to the Pontifical Council for the Family and the Pontifical Council for Health Care Workers, who’s based at the Coll├Ęge des Bernardins in Paris. He’s a psychotherapist controversial for his views on homosexuality and “gender theory.”

Although his presentation was long on therapeutic analysis, Anatrella did a credible job of slogging through components of the Code of Canon Law governing clergy accused of sexual crime with a minor.

In other ways, however, his presentation seemed seriously wanting. For instance, Anatrella argued that bishops have no duty to report allegations to the police, which he says is up to victims and their families. It’s a legalistic take on a critical issue, one which has brought only trouble for the Church and its leaders. Why, one wonders, was it part of a training session?

Most basically, canonical procedures kick in only after abuse has been alleged. Presumably the goal ought to be to stop those crimes from happening, and in that regard it’s striking that Anatrella devoted just a few paragraphs to abuse prevention, using abstract language without concrete examples.
Let's not bury the lede: The instructor of the Vatican training course on sexual abuse is teaching bishops that "bishops have no duty to report allegations to the police, which he says is up to victims and their families."

From the Guardian:
A document that spells out how senior clergy members ought to deal with allegations of abuse, which was recently released by the Vatican, emphasised that, though they must be aware of local laws, bishops’ only duty was to address such allegations internally.

“According to the state of civil laws of each country where reporting is obligatory, it is not necessarily the duty of the bishop to report suspects to authorities, the police or state prosecutors in the moment when they are made aware of crimes or sinful deeds,” the training document states.
Even in the age of Pope Francis, it seems, the twin imperatives of "command and coercion"--a phrase I plucked from the writings of John Henry Newman, where they were used approvingly to describe the Church's duty to suppress even truthful information where necessary to maintain faith in the Church's authority--and of clerical independence from secular law, the dubious cause in which Thomas Becket died, and which was perpetuated in canon law to at least 1984, though there is reason to believe it remains substantially undisturbed, still hold sway.

So, clearly the scandal is far from over. Which means, damn it, that I can't leave it behind. You have to understand, writing the article had the exhilarating impetus of having stumbled across something that had not been, until I wrote about it, explored in legal historical writing. Just about all of the legal historians of clerical immunity--"benefit of clergy" as it is commonly called, through "benefit of the forum," or "privilegium fori" is more accurate, describe its rise and fall from the perspective of secular law's willingness to honor it, not the Church's insistence on it, and its use of canon law to enforce it. Even the great R.H. Helmholz and Leona C. Gabel tell the story that way. So, C&C was satisfying to write--I found a small piece of the puzzle of why good men could become complicit in terrible deeds.

But that's done. Now, if I pursue it further, it'll be working out the ramifications of the canon law process, and mostly a hard slog through the unpleasantness of violated lives and vows. But how can one let it go, when, the story continues, continues seemingly along the lines I wrote on?

So, I'm dusting off C & C, and additional research materials I received after its publication, and seeing if I can re-work it into a more expanded treatment.

How I wish it wasn't needed.

Wednesday, February 10, 2016

Alas, Poor Creon: A Digression Upon a Sermon

So, here's a thought I have had after re-reading my Transfiguration Sunday Sermon to post it.

Here's the passage from Inherit the Wind I used in the sermon:

You can see that I wrenched it a bit out of context, making a point different from that the authors intended. But not, I think, disrespectfully, or unfaithful to what they wrote. Lawrence and Lee are pretty clear in the play that progress comes at a price, but is resoundingly worth it. I have tried to draw out the cost a little bit more, and, in the sermon, pout out that the cost includes losing the ability to relate to the ancient world, and some of our foundational texts, including the Bible.

But I don't associate myself with a simplistic view attributed to "Col. Drummond" that " we must abandon faith in the pleasant poetry of Genesis." Yes, yes--they're right that we can't take it as a history text--but as early as the Third Century, Origen knew that. So, what is genesis, and its creation story, and what does it have to tell us? The answer isn't, nothing, any more than it is a documentary history. It's some of the oldest stories a people who started a journey that we are still on, all these years on, told themselves about that journey. It's a window in to their world.

So my point was not to devalue the book of Genesis. Rather, my point is that you have to enter into the world of the biblical text sympathetically, with an effort to understand what exactly it is, and what it isn't. We have to make the imaginative leap to try to learn what the work in its essence is, and what its authors were tearing to communicate to its readers. Sometimes that means needing to restore and explore the cultural milieu of the text. (A friend recently gave me a copy of The Jewish Annotated New Testament that has proven a fertile place to learn about Jesus's and Paul's own setting.)

It's not easy. Proof-texting is a lot easier, but it is, in its own way, disrespectful to ancient texts; it assumes that nothing has changed, that the rise and fall of empires, cultures, and the passage of the texts themselves from one language to another is irrelevant. It assumes that we've got a simple job ahead of us, a science, not an art. It's crude.

And, most of all, it leads us astray, into missing the kerygma because we stay on the surface level.

Let's take a simple example--a non-biblical one to make it easy. If you read Antigone solely through modern eyes, it's easy to see it as a story about a purely noble resistance to tyranny. But fact, Martha Nussbaum has persuasively argued that both Antigone and Creon are right, and wrong. Werner Jaeger came to a similar conclusion. By simply reading post-Enlightenment values into Sophocles, we could miss much of the nuance in the ply. We don't have to, though; through imaginatively engaging with the play from the perspective of its time, not our time, we can read it more richly. Certainly, Jean Anouilh's WW II-era adaptation gives Creon a perspective that, while not as morally attractive as Antigone's, is not without salience, due in part to such an imaginative engagement and finding a modern parallel to the Occupation of his own country.

None of this means we can't have any certainty, of course. But it means that a little epistemic humility is in order, on all our parts.

Sunday, February 7, 2016

Turn and Face the Strange: A Sermon for Transfiguration Sunday

[Delivered at St. Bartholomew's Church on February 7, 2016]

[This sermon is one where I went "off book" for a little bit, and so my notes don't perfectly reflect the text as delivered. I've amended it to reflect what I said, to the best of my recollection, while I'm pretty sure all the concepts are there, it's not verbatim.]

So, you heard it right. Jesus goes up the mountain to pray, and then—something happens.
Something that is hard even for Luke to describe—the best he can come up with is to say that “while [Jesus] was praying, the appearance of his face changed, and his clothes became dazzling white.” Matthew is a little more explicit—Jesus’s face “shone like the sun.” [1] Mark adds that Jesus’s clothes became “dazzling white, such as no one on earth could bleach them.” [2]

In reading these three tellings of the Transfiguration, it’s pretty clear that the Gospel writers are reaching for a way to capture the experience, and not quite succeeding. They don’t know how to put into words the sheer unearthliness of what happens to Peter, John, and James on the mountaintop with Jesus. It’s like trying to catch lightning in a bottle.
But they try to convey this experience for which there are no words—so Jesus’s face just alters, or it shines like the sun, his clothes are whiter than possible on earth. They’re grasping for metaphors to tell us that Jesus the teacher, the rabbi, the wise man, became suddenly very, very Other.

And if that’s not enough, Moses and Elijah appear, talking with Jesus. Not only are these two of the greatest figures in the Hebrew Bible—the lawgiver and the archetype of the prophet—but they’re both figures who were more than a little uncanny, a little unearthly themselves.

Moses, who after he received the tablets of the Law directly from God, came down from the Mountain unaware that his face was shining with an unearthly radiance [3], and that people could only speak to him if he wore a veil; Elijah, who was taken up to heaven in a chariot of fire.[4]

Peter, John, and James are exhilarated and terrified, and frankly who can blame them? Only Peter tries to do anything, and I have to admit, his effort to be helpful—“Master, it is good for us to be here; let us make three dwellings, one for you, one for Moses, and one for Elijah"—sound like it’s right out of as Woody Allen movie. But at least he tries to be a part of what’s happening.

A mysterious cloud covers the mountain, and a voice is heard, saying “This is my Son, my Chosen; listen to him!”

And then it’s all over.

No Moses, no Elijah, Jesus back to normal, no booths for Peter to build.

So they go down the mountain, and rejoin the others.


I could take the easy way out of this story. “Oh, it’s a glimpse of heaven,” I could say, or “what a vivid metaphor. Let’s unpack it.”

But I can’t really do that here, not and be honest with you.
Because this story is so strange, that I think it has a kind of truth that the Gospel writers are struggling to articulate, and only imperfectly succeeding at, and if I use their struggle to domesticate the story, I’m smothering that truth.

So I’m going to do something different. I’m going to invite you to, in the words of the late David Bowie, “turn and face the strange.”

Something happened. What was it?

We’re handicapped by the fact that we live in a scientific, empirical age. We live by science and technology and it’s enriched our lives in many ways. But, it’s like Lawrence and Lee wrote in Inherit the Wind: progress has never been a bargain; you’ve got to pay for it. They say that it’s as if there’s a man behind a counter who says “all right, you can have a telephone, but you’ll have to give up privacy, the charm of distance. Mister, you may conquer the air, but the birds will lose their wonder, and the air will smell of gasoline!”[5]

And Lawrence and Lee are right.

As a culture, we have lost the sense that the ordinary can transcend itself, that in day-to-day life, there can be moments when the light gets brighter, the air is alive with currents and motes tumbling through sunbeams, and our hearts beat just a bit faster. They come out of nowhere, little moments that we can treasure, or dismiss as a fleeting feeling.
Back in 2011, I had one of those moments in this very church—next door, actually in the main sanctuary. I was sitting in the congregation as the choir sang a new piece of music, Evan Solot’s The Hawk, and suddenly—well, I was a little bit more alive. The music had set something free in me. I felt, in that moment, serene, centered, and at one with my Creator.

That’s not normal for me.
It’s not normal for most of us, I suspect, but many people have moments when they are pulled into alignment with the universe; some have experiences that are even more striking, harder to ignore.
These experiences are common enough to have been studied by the psychologist Abraham Maslow, who called them “peak experiences.” He believed that all people were capable of having them.

In the Church, we would call these mystical experiences, and the 19th Century scholar William Inge wrote that the mystical facility is one which everybody has but which few develop. But the lives of the mystics, from Julian of Norwich to Thomas Merton, have shown us that these experiences aren’t to be written off lightly. They’re not nothing.

In the ancient world people were far more open to these experiences than we moderns are. They write of them without embarrassment, without doubt. They have not called into question their own experiences.

But the Transfiguration isn’t a subtle little intimation of immortality, or an ordinary peak experience. It’s much more dramatic, much bigger, and shared—it’s not just Peter, or John, or James alone who experiences it, or even Jesus—it’s all of them. It has a reality to it that transcends any physical or psychological explanation for its cause.

And it’s not just a feel good moment. It’s terrifying as well as exhilarating, until the voice speaks and it all just ends. But the disciples remember. They remember well enough that slightly different accounts of the experience appear in 3 out of the 4 Gospels.

But the really important part is what happens next.

They come down from the mountain, and rejoin the day-to-day world.
In today’s reading from Second Corinthians, Paul references Moses’s transfiguration, and that veil he wore. Paul tells us that “when one turns to the Lord, the veil is removed,” and that “all of us, with unveiled faces, seeing the glory of the Lord as though reflected in a mirror, are being transformed into the same image from one degree of glory to another.” Paul tells us that “since it is by God's mercy that we are engaged in this ministry, we do not lose heart.”

Well, that’s self-explanatory, right?

But wait—Paul is comparing us to Moses, as well as to his followers wandering in the desert.
Catch that thought for a second: we are both the viewer and the viewed, only without the need for any veil. By walking the Way—which is what the early Christians called their faith, because it is a way of life and not a set of doctrinal principles—we are like Moses, being with God on the mountaintop.

Like Moses, we are changed by our engagement with God, and not just once, but daily, even if we don’t realize it ourselves, just as Moses didn’t until the people hid from his altered face. It’s like C.S. Lewis wrote, that if we are really walking the Way, then, taking our lives as a whole, with all our innumerable choices, all our lives long we are slowly turning the central part of us, the part that chooses, into a creature in harmony with God, with others, and with ourselves. Or, like Dorian Gray, we can choose another path—but those choices will, one at a time, change us, too, even though we might not notice the changes until they accumulate.

Turn and face the strange. Because those choices? They do accumulate. We change, even though we don’t see it daily. So do others around us. We can see Transfiguration in those moments when we see the reality that underlies the workaday appearances of those we love, those who have blessed our lives. Maybe that’s when the beauty that isn’t evident is perceived, and we’re shocked by the glimpse of a level of reality we don’t often grasp. And that if we respond to that insight, we can respond to that beauty, respond to those changes.

Lent is coming in just a few days, and often we dread it. The solemnity, the penitential rites. We miss our alleluias. But Lent can be a mountaintop experience, too. You don’t have to put away something you love for Lent. You can pick something up instead. Try something new to change your perspective. Add a short daily prayer from the Book of Common Prayer’s Daily Office. If you do that already, try a different from of daily prayer. Me? This year I’m changing my usual Rite II daily prayer for an older from. Why? The unfamiliar language makes me think more about what I’m praying, and what it means. But that’s me. There are as many different ways of shaking up spiritual practices as there are people. The whole point is to give the kaleidoscope a twist, in the hope that all the shapes will reform, and give you a glimpse of a new perspective.

And heartened by the glimpse we come down from the mountain, like the disciples. We rejoin the swim of life, but participate in a new way. Restored, refreshed, encouraged.

In the name of God, Father, Son, and Holy Spirit.

1. Matt 17: 2.
2. Mark 9: 2-3
3. Exodus 34: 29-30.
4. 2 Kings 2: 11.
5. Jerome Lawrence & Robert E. Lee, Inherit the Wind (1955), at 93.

Monday, February 1, 2016

The Silence of the Justice

From The New York Times today:
When the Supreme Court returns from its winter break this month, it will hear two minor cases and reach a major anniversary. Unless something very surprising happens during the arguments that day, Justice Clarence Thomas will have gone 10 years without asking a question from the bench.

Maintaining a decade-long vow of silence takes monkish dedication and a certain stamina, and Justice Thomas has no modern competition. It has been at least 45 years since any other member of the court went even a single term without asking a question.

Justice Thomas’s explanations for his disengagement from this aspect of the court’s work have varied, but he seems to have settled on one in recent years. It is simply discourteous, he says, to pepper lawyers with questions.

“I think it’s unnecessary in deciding cases to ask that many questions, and I don’t think it’s helpful,” he said at Harvard Law School in 2013. “I think we should listen to lawyers who are arguing their cases, and I think we should allow the advocates to advocate.”

His is an unusual conception of the role oral arguments play at the Supreme Court. The justices know the lawyers’ arguments well by the time they take the bench, having read stacks of briefs, most of them very thorough.

Oral arguments are a chance for justices to probe the contentions in the briefs and for lawyers to address the issues that most trouble the justices.

“If oral argument provides nothing more than a summary of the brief in monologue, it is of very little value to the court,” Chief Justice William H. Rehnquist wrote in 1987.

Justice Thomas acknowledged at least the premise of this point in his remarks at Harvard. “Most of the work is done in the briefs,” he said.

But he may well be right that his colleagues go too far in the other direction, interrupting one another and spraying lawyers with questions that seldom get full and considered answers.

“We look like ‘Family Feud,’ ” Justice Thomas told a bar group in 2000.

Asked about the free-for-all state of arguments at Harvard in 2013, he said, “I don’t like it that way, but I’m nobody’s boss.”
Something you won't hear me say often: I see his point. He's not the only one to hold the position, either. Justice William O. Douglas held the same viewpoint, believing they the time belonged to the lawyers, and not to justices who wanted to lobby their colleagues.

Douglas, like Thomas, also had concerns about the seemliness of the way it was done. Having seen some arguments, listened to more, and read the transcripts of still more, I think Justice Thomas is right--there's a tendency on the current Court to showboat, to treat the argument as a sporting event. When I saw it in a death penalty case, at the very beginning of my career, I was appalled at the cavalier attitude several justices betrayed in oral argument toward performing what should be the most solemn aspect of their duties, regardless of one's opinion on the merits of the death penalty.

This isn't to say that no levity, no spark, is appropriate. But an argument in the Nation's highest Court should, perhaps, not be quite so easily confused with a bear-baiting, with counsel as the bear.

Sunday, January 31, 2016

The Call: From the Gallery

My friend and discernment companion Elise Hanley has announced on her blog (oi, I didn't even know she had one! Let alone that it's good! Share a little, Elise!) her upcoming ordination to the transitional diaconate on March 5, and invited me to attend?

Well, good heavens, as Archdeacon Grantly would expostulate, try to keep me away!

Elise and I started on our journeys to ordination near to each other, and she was always a source of encouragement and support on the journey. I hope that I kept up my end of that companionship, but I know that she enriched my own journey immeasurably.

How could I miss one of the culminating moments of hers?

I was unable to attend another friend's ordination thanks to our recent blizzard. But I will be honored to be seated among the clergy to welcome Elise to the diaconate. We'll be richer for her presence.

Wednesday, January 27, 2016

A Tale of Two Kitties

My beloved NinjaCat is about the worst named animal alive. Named after an impressive and silent burst of speed she put on the first time I met her, the day la C and I moved to Brooklyn, she prefers to loll about her territory, enjoying a superior vantage point. She must have been mistreated at some point, because she is very slow to trust, and I (and la Caterina) are the only people she does trust. She hides from visitors, family, friends and cat-sitters alike.

Horatio P. Kitten, by contrast is a kitten so bouncy as to make Tigger look like Eeyore. He is a cuddly, 6 month old kitten whose mischeif, affection, and occasional lunacy are at once heartwarming and unpredictable.

Unfortunately, these two cats share the Northern Annex of Anglocat Central, and his persistent efforts to romp with her were perceived by Ninja as aggression. She hissed, she fled, she fought. Worse, my efforts to provide a division of territory where each could have a safe space, and to gradually introduce them as he calmed down after his neutering, fell apart when Horatio proved able to surmount every barrier I erected. When I hired a contractor to create a full one, he didn't turn up for our appointment, and then didn't return my call. In short, my only option was to confine Horatio to a small bedroom. He absolutely hated it. He had a few hours a day "out" time, but hated being contained.

It couldn't last, of course. A good friend of mine was hoping to get a cat, and, after we spoke about the matter, I "homed" Horatio with him and his family tonight.

Horatio is already adjusting, playing with his new family, giving cat-kisses to them, and loving his new digs--I have a happy message from my friend already.

Ninja is Queen of the Manor again, swanning around the place as its chatelaine. Peace has been restored, and her truncated dominion is once more hers.

Only the Papa and the Mama are sad for what might have been.

I know, I know, luxury problem; cats all happy, friend and his wife and children ecstatic; good solution, no?

But I do miss the little rascal, and so does la C.