Nearly a week later, and no post. I've been busy on a new article on the prohibition against usury, economic justice and theories of interpretation. Apologies for the silence. As an amend, I offer:
Actually, this belongs in the article, I suspect.
Monday, February 20, 2012
Tuesday, February 14, 2012
Pet Sounds
My wife and I are both occasional commenters on Balloon Juice. So when I heard from her that a colleague in her booming cat colony at the Brooklyn Navy Yard had found a kitten with an inured eye (which could not be saved) who needed a home, I thought of Balloon Juice's history of cat and dog rescue support. I sent in the pictures I had of the cat, named Sanders (as the kitten had, rather inexplicably, been dubbed), the ones up top. I asked regular front pager Anne Laurie to put out a bleg for help, and she generously did so. As the comments reflect, no fewer that three "Juicers" offered to take Sanders 9although some thought Jack Sparrow would be a more appropriate name). La Caterina's colleague met with a couple and, I am delighted to say, Sanders is going to fine new home this coming Saturday, after his rescuer has a little more time to socialize him--he's sweet, but shy.
Just this once, everybody lives.
Monday, February 13, 2012
The Outspoken Dean Inge: A Short Note on W.R. Inge, Charles Gore, and John Henry Newman
I have long been an admirer of the scholar, priest and controversialist W.R. Inge. (An introduction to his life and thought is here.) But reading his Outspoken Essays is a very mixed bag. The worst parts are dated opinion pieces, often surprising in the extent to which Inge got caught up in the passing passions of his day, often to the detriment of his charity (and this from the man who said that "[h]e who marries the spirit of the age will soon find himself a widower").
But Inge at his caustic, polemic best can be irresistible. So, for example, on the theological commitments of Cardinal John Henry Newman to faith wholly independent of reason, which Inge describes as "avowed obscurantism", Inge writes that "[w]e can imagine nothing more calculated to drive a young and ingenuous mind into flippant scepticism than a course of Newman's sermons. The reductio ad absurdum of his arguments is not left to the reader to make; it is innocently provided by the preacher." Inge, who described Newman (in explaining his attack on Charles Kingsley, condemned by some in theological circles as "horribly unchristian" despite provocation) as a "master of fence", shows himself no mean hand with the blade himself. But there is much more to Inge's essay on Newman than sport with a notable (albeit now silenced) adversary; Inge is interested in why an able, devout, and (a fact edited out of the record by some Newman aficionados)intellectually quite aggressive man would accept an obedience that effectively silenced him for decades that could have been the most productive of his life. He doesn't reach an answer, of course. As shown by no fewer than three of the essays here, Inge finds Anglo-Catholicism bewildering; as he describes it in the essay on Newman:
On the subject of Charles Gore (another figure for whom I have great affection), Inge is by turns scathing and admiring. I had realized from passing references in Gore's writings that he and Inge were not, shall we say, compadres, but had not realized the gulf between them was so wide until I read Inge's essay on Gore, in which he attacks Gore's ecclesiology, his belief in the New Testament as history, and his work as a church reformer. As to the latter, Inge concludes that,
But Inge at his caustic, polemic best can be irresistible. So, for example, on the theological commitments of Cardinal John Henry Newman to faith wholly independent of reason, which Inge describes as "avowed obscurantism", Inge writes that "[w]e can imagine nothing more calculated to drive a young and ingenuous mind into flippant scepticism than a course of Newman's sermons. The reductio ad absurdum of his arguments is not left to the reader to make; it is innocently provided by the preacher." Inge, who described Newman (in explaining his attack on Charles Kingsley, condemned by some in theological circles as "horribly unchristian" despite provocation) as a "master of fence", shows himself no mean hand with the blade himself. But there is much more to Inge's essay on Newman than sport with a notable (albeit now silenced) adversary; Inge is interested in why an able, devout, and (a fact edited out of the record by some Newman aficionados)intellectually quite aggressive man would accept an obedience that effectively silenced him for decades that could have been the most productive of his life. He doesn't reach an answer, of course. As shown by no fewer than three of the essays here, Inge finds Anglo-Catholicism bewildering; as he describes it in the essay on Newman:
Anglo-Catholicism has its theoretical basis in a definition of Catholicity which is repudiated by all other Catholics; its traditions are largely legendary. But it is an eclectic system well suited to the English character, and the distorted view of history which Newman bequeathed to the party has enabled it to borrow much that is good from different sides, without any sense of inconsistency. The idea of a Divine society has been and is the inspiration of thousands of ardent workers in the Anglican Church. It lifted the religion of many Englishmen from the somewhat gross and bourgeois condition in which the movement found it, to a pure and unworldly idealism. And, unlike most other religious revivals, especially in this country, it has remained remarkably free from unhealthy emotionalism and hysterics. The social atmosphere of Oxford, always alien to mawkish sentiment, penetrated the whole movement, and maintained in it for many years a certain sanity and dignity which, while they doubtless prevented it from spreading widely in the middle class, made the Tractarians respected by men of taste and education. http://www.blogger.com/img/blank.gifBut these influences could not be permanent. The goodwill of the Tractarian firm (if we may so express it) has now been acquired by men with very different aims and methods. The ablest members of the party are plunging violently into social politics, while the rank and file in increasing numbers are fluttering round the Roman candle, into which many of them must ultimately fall.What a mix of everything that is invigorating and vexing in Inge! The casual wit (quite like the reference to "the Roman candle"), equally casual elitism, but the willingness to ascribe virtues to a movement fundamentally alien to him, and one which, ultimately, repelled him.
On the subject of Charles Gore (another figure for whom I have great affection), Inge is by turns scathing and admiring. I had realized from passing references in Gore's writings that he and Inge were not, shall we say, compadres, but had not realized the gulf between them was so wide until I read Inge's essay on Gore, in which he attacks Gore's ecclesiology, his belief in the New Testament as history, and his work as a church reformer. As to the latter, Inge concludes that,
the Bishop's policy of reconstructing the Church of England as a self-governing body, professing definitely Catholic principles and enjoining Catholic practices, seems to us an impossible one. The chief gainer by it would be the Church of Rome, which would gather in the most consistent and energetic of the Anglo-Catholics, who would be dissatisfied at the contrast between the pretensions of their own Church and its isolated position. The non-episcopal bodies would also gain numerous recruits from among the ruins of the Evangelical and Liberal parties in the Church.After some kind words for Gore's "earnest sympathy with the aspirations of the working class to improve their material condition" and Gore's keen awareness of "the apparent discrepancy between the teachings of Christ about wealth and the principles which His professed disciples wholly follow and in part avow." But then, after all this, he changes tone most surprisingly:
When he handles what may be called applied Christianity, he does so in a manner which makes us rejoice at the popularity of his books. The little commentaries on the Sermon on the Mount, and on the Epistles to the Romans and Ephesians, are admirable. They are simple, practical, and profound.Rather than encapsulate the books, he finds a stirring, lengthy passage explaining the Sermon on the Mount, and prints it verbatim. In the end, Inge's hostility to Gore's effort to create a vibrant Anglo-Catholicism for the then-new century could not smother his admiration for the pastoral efforts of the bishop working overtime to teach that Christianity was not merely a creed, or a set of historical propositions, but was--and is--ultimately a way of life designed to bring life in abundance to those who follow the Way.
Saturday, February 11, 2012
Tuesday, February 7, 2012
The Ninth Circuit Sends Prop 8 to the Ninth Circle
The Ninth Circuit's decision today in Perry v. Brown strikes me as a well-crafted and crafty opinion, one which is designed to box in swing justice Anthony Kennedy by employing his framework in Romer v. Evans to find the California constitutional amendment by referendum to be invalid for the same reason as the constitutional amendment, also adopted by referendum, in Colorado which "prohibit[ed] all legislative, executive or judicial action at any level of state or local government designed to protect the named class, a class we shall refer to as homosexual persons or gays and lesbians." In Romer, the Court found that such an enactment, which had the effect of "withdraws[ing] from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies," violated the federal Constitution, by effectively disallowing gays and lesbians the opportunity to effect legislative change by persuasion, and that it
First, the Court establishes that California had by statute defined domestic partnership in such a way as to afford gay and lesbian couples who availed themselves of that status essentially all of the state-provided benefits of civil marriage.
Second, the Court noted that it was bound to accept as the meaning of the California Constitution prior to its amendment by Proposition 8 the meaning authoritatively read from it by the California Supreme Court in In re Marriage Cases (2008), that it contained a fundamental right to marriage which could not be denied to gay and lesbian couples absent a compelling state interest. The Ninth Circuit followed here the doctrine that the state's highest court is the ultimate arbiter of state law, a doctrine so well established that a federal court cannot hear a case in which a federal claim is presented if the decision is supported by independent and adequate state grounds. (Notably, one of the gravest flaws in Bush v. Gore is that it defied this rule, ignoring precedent dating to 1874, arrogating to itself the prerogative of defining state law contrary to the state's highest court, as explained here by Professor Erwin Chemerinsky; a gallant, but to my mind futile, defense of the decision by my old law professor Henry Monaghan is here).
Third, the Ninth Circuit credibly found that it was faced with a change by referendum that had no practical effect on the legally enforceable rights of gay or lesbian couples; rather it changed one thing only:
Assuming, of course, that Justice Kennedy is consistent and stands by his opinion in Romer. Still, Judge Reinhardt has made it extremely difficult for Kennedy. Which, in view of the current composition of the Court, seems to me the one hope for a just outcome here, that Kennedy will not reverse himself.
has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.In Perry, the panel used this analysis to devastating effect. It did so through several rhetorical steps.
First, the Court establishes that California had by statute defined domestic partnership in such a way as to afford gay and lesbian couples who availed themselves of that status essentially all of the state-provided benefits of civil marriage.
Second, the Court noted that it was bound to accept as the meaning of the California Constitution prior to its amendment by Proposition 8 the meaning authoritatively read from it by the California Supreme Court in In re Marriage Cases (2008), that it contained a fundamental right to marriage which could not be denied to gay and lesbian couples absent a compelling state interest. The Ninth Circuit followed here the doctrine that the state's highest court is the ultimate arbiter of state law, a doctrine so well established that a federal court cannot hear a case in which a federal claim is presented if the decision is supported by independent and adequate state grounds. (Notably, one of the gravest flaws in Bush v. Gore is that it defied this rule, ignoring precedent dating to 1874, arrogating to itself the prerogative of defining state law contrary to the state's highest court, as explained here by Professor Erwin Chemerinsky; a gallant, but to my mind futile, defense of the decision by my old law professor Henry Monaghan is here).
Third, the Ninth Circuit credibly found that it was faced with a change by referendum that had no practical effect on the legally enforceable rights of gay or lesbian couples; rather it changed one thing only:
All that Proposition 8 accomplished was to take away from same sex-couples the right to be granted marriage licenses and thus legally to use the designation ‘marriage. . . Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California.As such, the constitutional referendum served no legitimate state purpose; the interests asserted by the proponents such as encouraging procreation (!) were quite literally unaffected. Only the status and human dignity were of gay and lesbian couples were effected--adversely--and the utter failure of any rational legitimate basis to justify the initiative left only one explanation: animus. And, under Romer, such a popular enactment cannot stand. QED.
Assuming, of course, that Justice Kennedy is consistent and stands by his opinion in Romer. Still, Judge Reinhardt has made it extremely difficult for Kennedy. Which, in view of the current composition of the Court, seems to me the one hope for a just outcome here, that Kennedy will not reverse himself.
Thursday, February 2, 2012
Whose Conscience? Whose Choice?
When the Obama Administration announced that it would not broaden the religious exemption permitting houses of worship to decline to cover birth control for employees, the reaction was predictable. Kaiser Health News rounds up the protests and frankly sometimes overheated responses.
The problem with the responses is, it seems to me, the fact that the critics claiming that the rule is antithetical to religious freedom, is that the institutions affected by it are those which serve the general public and employ many non-believers. A story in Monday's New York Times made the point vividly, telling stories of the impact the denial of coverage can have on students or employees of Catholic institutions:
The Church's interests are not illusory, but there is here an element of forcing its own conscience onto those who are affiliated with it not religiously, but in a secular manner. All in all, the case for the broader exemption is not, to my mind, legally compelling. Similar state law requirements have been routinely upheld against religious freedom claims at the state court level, with the U.S. Supreme Court denying review.
The problem with the responses is, it seems to me, the fact that the critics claiming that the rule is antithetical to religious freedom, is that the institutions affected by it are those which serve the general public and employ many non-believers. A story in Monday's New York Times made the point vividly, telling stories of the impact the denial of coverage can have on students or employees of Catholic institutions:
One recent Georgetown law graduate, who asked not to be identified for reasons of medical privacy, said she had polycystic ovary syndrome, a condition for which her doctor prescribed birth control pills. She is gay and had no other reason to take the pills. Georgetown does not cover birth control for students, so she made sure her doctor noted the diagnosis on her prescription. Even so, coverage was denied several times. She finally gave up and paid out of pocket, more than $100 a month. After a few months she could no longer afford the pills. Within months she developed a large ovarian cyst that had to be removed surgically — along with her ovary.Many Catholic institutions have striven to transcend sectarian identity, and employ and serve non-Catholics--indeed non-Christians. For them to participate in a secular marketplace in a manner largely indistinguishable from secular enterprises, but to insist that it must be free to adhere to its teachings vis-a-vis as a religious body raises a difficult, not a simple question. The religious liberty interest is attenuated by that decision to enter the stream of commerce not as a religious entity but as a general provider to persons of all or no faith. (Indeed, as the Times article points out, New York State law requires these institutions to cover prescribed birth control, an obligation which the institutions end-run by simply not prescribing them).
The Church's interests are not illusory, but there is here an element of forcing its own conscience onto those who are affiliated with it not religiously, but in a secular manner. All in all, the case for the broader exemption is not, to my mind, legally compelling. Similar state law requirements have been routinely upheld against religious freedom claims at the state court level, with the U.S. Supreme Court denying review.
Tuesday, January 31, 2012
The Ghosts of the Past
Although Season 2 of Sherlock has yet to air in the U.S., those of us who do not fear spoilers have gleaned much about it. (This post is spoiler-free, the links, however, not so much...)
Remember my post on P.R.O.B.E., the straight to video spinoff of Doctor Who featuring Caroline John reprising the role of companion Dr. Liz Shaw? Well, I seemed to omit the fact that P.R.O.B.E. was written by Mark Gatiss, and the episode Unnatural Selection bears, shall we say, a family resemblance to the Gatiss-penned script for The Hounds of Baskerville.
Note the parallelism between the series title and acronym P.R.O.B.E. and the acronym H.O.U.N.D.
Gatiss may not boast about P.R.O.B.E. (he is cited as having "said in a 2004 interview that he would not authorise their re-release as regarded them as having been a learning exercise"), but clearly he hasn't forgotten the series altogether.
Remember my post on P.R.O.B.E., the straight to video spinoff of Doctor Who featuring Caroline John reprising the role of companion Dr. Liz Shaw? Well, I seemed to omit the fact that P.R.O.B.E. was written by Mark Gatiss, and the episode Unnatural Selection bears, shall we say, a family resemblance to the Gatiss-penned script for The Hounds of Baskerville.
Note the parallelism between the series title and acronym P.R.O.B.E. and the acronym H.O.U.N.D.
Gatiss may not boast about P.R.O.B.E. (he is cited as having "said in a 2004 interview that he would not authorise their re-release as regarded them as having been a learning exercise"), but clearly he hasn't forgotten the series altogether.
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