August/September Letters

Favoritism vs. Nondiscrimination?

In the April issue of First Things (“God and Bigotry at Yale,” Public Square), Richard John Neuhaus criticizes the Yale Law School’s decision not to exempt the Christian Legal Society (CLS) from the School’s general policy that all employers wishing to participate in the School’s on-campus interviewing process must sign a form stating that they do not discriminate on the basis of (among other things) religious belief.

Let me say at the start that I regard the question as a difficult and close one, and that I appreciate the good will with which Gregory Baylor, the assistant director of CLS, has pressed his case, despite our ultimate disagreement.

Mr. Baylor and I agree on two propositions. First, the Yale Law School is a secular institution whose own internal life is governed by a principle of religious nondiscrimination. The School does not hire faculty or admit students or distribute resources on the basis of religious belief. It would offend this principle, for example, if a faculty member advertising for a student teaching assistant stated that only Catholics (or Jews or Lutherans or Muslims) need apply. Similarly, it would offend the School’s principle of nondiscrimination if the Registrar were to announce that henceforth summer financial support was to be awarded only to students of certain religious faiths.

Second, CLS is a religious organization whose internal life is governed by a principle of religious favoritism. Nothing could be more obvious or less objectionable, and it would be as presumptuous for a secular organization, like the Yale Law School, to suggest that CLS should govern its own affairs by a principle of nondiscrimination as it would be for CLS to suggest that the internal life of the Yale Law School should be restructured so that adherents of one faith might be favored over those of any other.

The difficulty in this case arises because the Law School’s on-campus interviewing process straddles the line between its internal life (which the School is free to arrange as it chooses) and the life of other organizations—of the employers participating in the process—whose governing norms the School has no power, or desire, to challenge. If CLS makes arrangements on its own to interview our students, its dealings with them fall outside the boundaries of the School’s institutional life and are not subject to the School’s policy of nondiscrimination. But the Law School’s on-campus interviewing process is administered and subsidized by the School itself, and to that extent the special opportunities this process affords our students are opportunities the School provides. They are opportunities that arise within the orbit of the School’s own life, in the same way that opportunities to compete for teaching assistantships and summer financial support do, and it would therefore be as real a breach of the School’s internal ethic of nondiscrimination to permit religious favoritism in the distribution of these opportunities as it would be to permit it in the distribution of any other benefits the School provides.

I recognize that requiring CLS to honor the Yale Law School’s policy of religious nondiscrimination imposes a cost on CLS by making it more difficult for CLS to recruit our students. But exempting CLS from our policy would constitute a moral interference in the internal life of the Yale Law School, and that is a very real cost as well. I do not see a solution that will be costless to both institutions, and that of course is why the problem is so difficult. In the end, I must prefer the internal regulative norms of the institution I have pledged to protect, just as Mr. Baylor must prefer the internal norms of the institution he represents. This leaves us in disagreement, but I would hope that we can at least recognize and respect the moral imperatives to which each of us owes his allegiance.

Mr. Neuhaus’ essay makes a complex question appear overly simple, and invites readers to take sides rather than continue a conversation. I prefer to continue the conversation, which I believe a spirit of genuine civility requires.

In that conversation, there are many further questions that might be asked. Let me close by asking one: What must CLS be committed to before Mr. Baylor can say, in good faith, that his organization does not discriminate in the sense the Yale Law School’s policy forbids? Would it be enough to say, for example, that CLS is willing to interview students of all faiths, though it thinks it unlikely that any but professing Christians will be hired? A private law firm that states it will interview students of all races, but says it is unlikely that any black students will be hired, would not meet the Law School’s requirement of nondiscrimination. By contrast, if an organization devoted to the protection of religious freedom were to say that it was prepared to interview all students, the devout as well as nonbelievers, but thought it unlikely that any but those committed to the cause would be hired, it is my own view that this would not constitute discrimination of the kind the Law School’s policy forbids.

Which of these last two cases does the first one most resemble? Perhaps this question can be the basis for a further conversation.

Anthony T. Kronman, Dean
Yale Law School

Father Neuhaus replies:

On the contrary, Dean Kronman’s letter makes a simple question appear very complex. As I pointed out in “God and Bigotry at Yale,” the problem with YLS’s “principle of religious nondiscrimination” is that it discriminates against religious organizations in its interviewing process. It also discriminates against its own students who may want to interview with a group such as CLS. That double discrimination results from Dean Kronman’s failure to see that his idea of a “secular institution” is anything but neutral. Dean Kronman says, in effect, to CLS: We have our belief system and you have your belief system and we’re Yale Law School and you’re not, so that’s that. He calls for “further conversation” in “a spirit of genuine civility” while simultaneously declaring an “ultimate disagreement.” Since he has arrived at his conclusion, it is not clear what further conversation would be about.

“This leaves us in disagreement,” he writes, “but I would hope that we can at least recognize and respect the moral imperatives to which each of us owes his allegiance.” One can recognize what Dean Kronman takes to be a moral imperative to discriminate against religious persons and institutions, but one cannot respect it. And he obviously does not respect the moral imperatives to which CLS owes allegiance. Although apparently unaware of the insult, he says that CLS “is governed by a principle of religious favoritism.” Fulfilling one’s duty to God is not a matter of preference and recruiting others to that cause is not an exercise in “religious favoritism.” Even more egregiously, Dean Kronman introduces the example of a law firm that discriminates on the basis of race. Apparently Dean Kronman fails to appreciate that the comparison of religion with racism puts a severe strain on “a spirit of genuine civility.” It is to be feared that Dean Kronman has little understanding of, never mind respect for, the nature of religious commitment. He might consult his YLS colleague Stephen Carter who has written insightfully about the “trivialization” of religion. (I confess that I am puzzled by the silence of Mr. Carter to date, although he has been asked to address the problem of the exclusion of CLS.)

Dean Kronman’s references to distributing financial support and other benefits on the basis of religious faith is an embarrassingly obvious red herring. Nobody is proposing that; it has nothing to do with the present discussion; and, were it proposed, it would surely be opposed by almost everyone, including, I have no doubt, CLS. The question at hand is whether CLS and students who might want to interview with CLS should be granted the same access that is accorded others.

Dean Kronman talks about “interference” with the internal life of YLS. This, I am afraid, is entirely disingenuous. There is no symmetry whatever between the position of CLS and that of YLS. The former cannot in any way “interfere” with the law school. The decision not to discriminate against CLS and other religious organizations lies entirely with YLS. In its anti-discrimination laws, the U.S. Government regularly grants exemptions for religious institutions. Does Dean Kronman think this means religious institutions are “interfering” with the Government? Of course not. The Government, for very good reasons having to do with the distinctive nature of religion, decides to make an exception. Harvard Law School permits CLS to interview on campus. Does Dean Kronman think Harvard is guilty of practicing “religious favoritism”? Harvard has decided not to discriminate against religious institutions. Yale has decided, in the name of nondiscrimination, to discriminate against religious institutions.

Dean Kronman is wrong in suggesting that the problem is that YLS and CLS are equal parties operating by incompatible principles. Between the two, there is no equality of power or moral responsibility. CLS cannot and does not discriminate against Yale. If Yale decides to permit its students to interview with CLS in the same way that they can interview with other organizations, that is no compromise whatever of the ability of YLS to govern its internal life. It would simply mean that YLS, along with federal and state governments, other law schools, and most corporations, recognizes that decency, common sense, and justice preclude discrimination on the basis of religion. Only religious institutions may and must discriminate on the basis of religious commitment. As, mutatis mutandis, law schools may and must discriminate on the basis of commitment to law.

In other words, and contra Dean Kronman’s main argument, the problem is not created by the different purposes of YLS and CLS. They are very different institutions, but CLS has no complaint against YLS being what it is, except that YLS excludes it from the interviewing process. YLS does have a complaint against CLS, namely, that it is a religious institution. Yale will be no less self-governing if it decides to grant a religious exemption from its rules. Indeed, making such decisions is precisely the meaning of self-government. No decision at all is required on the part of CLS. It clearly wants to interview students at YLS. The question is whether it will be permitted to do so. The decision is Yale’s and Yale’s alone.

Finally, the last case proposed at the end of Dean Kronman’s letter should not go unremarked. Readers will want to judge for themselves, but as best I can make it out Dean Kronman is inviting CLS, as the price of admission to the interview process, to dissemble about its hiring practices. It is a troubling invitation coming from a law school dean who has written extensively about the ethical state of the professions. Troubling also is the implication that the protection of religious freedom is a partisan cause not shared by nonbelievers. Whatever YLS may decide about not discriminating against religious institutions, it does seem that further conversation is in order.

Well Worth an Argument

In the April issue of First Things (“Religion Within the Limits of Morality Alone,” Public Square), Richard John Neuhaus says that my article “Writing History in a World Without Ends” (Pro Ecclesia, Fall 1996) is “well worth an argument.” In setting forth his part of the argument, Father Neuhaus contends that my comments on the U.S. Catholic bishops’ neutrality as regards slavery in the antebellum era “egregiously and… smugly imposes contemporary moral criteria upon the past.” This imposition, he says, is driven by an ecclesiology that is limited by morality, to the neglect of several other dimensions of Church life, such as “revealed truth, dogma, ordered ministry, sacramental bonds, and diverse traditions of discipleship.” Calling for “a doctrine of the Church that rests on more than the one pillar of ethics,” Neuhaus admonishes me by noting that “the Church is constituted more by mystery than by morality.”

The crux of the problem, he goes on to argue (drawing on a critique of feminist theology by R. R. Reno that appeared in the same issue of Pro Ecclesia as my article), is that I am captured by a modern, post-Kantian paradigm that puts forth an “ecclesiology within the limits of morality alone.” After conceding that “philosophically and theologically” I am “light years away from Kant,” Neuhaus still finds enough problems in my article to warrant this indictment: “Baxter, like Elizabeth Johnson and Rosemary Radford Ruether, is a child of Kant, a modern theologian who critiques the entirety of the tradition by a criterion of his own choosing.”

Neuhaus’ critique is also “well worth an argument,” so for the sake of argument, I offer the following three responses.

First, my article is directed primarily not at the antebellum Catholic bishops and their neutrality on slavery, but rather at John Tracy Ellis’ account of their neutrality, an account that was first set forth in 1955 and then revised in 1969. Although this would still qualify as an instance of imposing moral standards upon the past, it is a past that is rather recent; so recent a past, indeed, that it weighs very heavily on the present, for, as I show in my article, Ellis’ narrative, and the faith/politics autonomy that controls it, still shapes the present-day writing of U.S. Catholic history.

And yet, even to the extent that my article does cast judgment on the U.S. Catholic bishops of the antebellum era, it should be noted that their neutrality on slavery was judged and found wanting according to the moral criteria of their time by such prominent Catholics as Daniel O’Connell of Ireland, Monsignor Doupanloup of France, William Gaston of North Carolina, Father Claude Pascal Maistre of New Orleans, and Archbishop John Baptist Purcell of Cincinnati, who broke with his fellow bishops’ neutrality late in 1862. These people, who do not appear in Ellis’ history but who do appear in Cyprian Davis’ The History of Black Catholics in the United States, testify to the fact that at least some Catholics of the mid-nineteenth century found the moral resources to condemn the institution of slavery. My article suggests that we try to imagine an historical narrative whose plot line gives prominence to their stance rather than that of the U.S. Catholic bishops.

Second, my article is not, as Fr. Neuhaus claims, premised on a Kantian understanding of the relation between the Church and morality. Kant’s project was to free morality from tutelage to the authority and tradition of the Church by providing an account of the autonomy of morality grounded in reason qua reason. My article is part of an attempt to demonstrate the necessity of the Church for moral reflection, and the inextricable relation between ecclesial and moral discourse. If Fr. Neuhaus can show that Kant held there to be an inextricable connection between the Church and moral reasoning (and I doubt that he can), then I would readily acknowledge my identity as a child of Kant, in this limited sense.

But at the same time I would still point to another lineage in showing a connection between the Church and morality, a lineage stretching back to Moses and the prophets. In this tradition, the Church is constituted by mystery (Fr. Neuhaus is right about this), but the mystery centers on Christ’s redemption, which, as Pope John Paul II has explained in Veritatis Splendor, opens up for us “the possibility of realizing the entire truth of our being,” a realization that includes overcoming domination by concupiscence and enjoying the healing, restorative gift of the Holy Spirit. In this tradition, the Church is not held “within the limits of morality.” Rather, morality is expanded to include all aspects of church life.

This is why St. Paul exhorts his readers (in language at once liturgical, ecclesial, and moral) to present their bodies as a living sacrifice of praise and thus to live as members of the Body of Christ, teaching, preaching, giving alms, doing works of mercy, providing hospitality, repaying good for evil, and so on (Romans 12). This is also why Aquinas identifies the sacramental life of the Church as the means by which the virtues are formed and perfected. This is also why the Church excommunicated not only for doctrinal offenses such as Nestorianism and cultic offenses such as breaking the seal of the confessional, but also for moral offenses such as abortion. My point is this: there is no sphere of church life that is located in some sphere beyond morality, as Fr. Neuhaus implies, and you do not have to be a child of Kant to hold this view.

Third, Fr. Neuhaus is mistaken when he accuses me of criticizing “the entirety of the tradition.” My critique is not of “the entirety of the tradition,” but of only one tradition within the tradition, namely, the Americanist tradition. The confusion stems from the overall position that Fr. Neuhaus has been developing for years now, a position that merits the label “Americanist” inasmuch as it holds that “the entirety of the tradition” unequivocally endorses the political order established in the United States of America.

In good Americanist fashion, Fr. Neuhaus seems to think that the theology and political theory of Augustine and Aquinas automatically point ahead to the founding fathers and their Catholic supporters, John Carroll, John England, John Ireland, John Ryan, and John Courtney Murray, to name a few. If one dissents from this intellectual trajectory, he surmises, one must be drawing on “a criterion of [one’s] own choosing,” not on an alternative reading of the tradition. Thus Fr. Neuhaus never seriously faces the theoretical tension between justice grounded in true religion (Augustine) and the natural law (Aquinas) and the proceduralist notions of justice sponsored by the modern liberal state.

Nor does he face the practical tension between mores in the United States and the moral teaching of the Church. Instead, much like his hero John Courtney Murray, he continues to insist that there exists a fundamental harmony between Catholicism and the United States, all the while explaining away any friction in terms of recent cultural decline (hence his lament over “how far the disintegration of society has progressed in the past four decades”). Thus, whatever questions Neuhaus raises about the moral capacity of the United States to adhere to the natural law, as in the “crisis of democracy” forum sponsored in this journal, are purely reformist in character: the nation will get straightened out morally once we get our people onto the Supreme Court.

As I see it, the much celebrated “crisis of democracy” points to a deeper problem endemic to politics in a liberal society, the problem of generating a politics without substantive agreement on the ends to which political life is to be ordered. For Neuhaus, this problem can be solved by making politics a matter of means, and reserving the matter of ends to religion, which would then permeate the body politic. What he fails to consider is the extent to which the body politic can permeate religion and bleach out its distinctive character. When this happens, the Church ceases to respond critically to the political life of whatever nation in which it is located. It loses its shape and substance as a body and its members learn to tolerate practices such as slave trading and abortion—usually with the aid and comfort of theological formulations such as “the Church is constituted more by mystery than by morality.”

(The Rev.) Michael J. Baxter, C.S.C.
Department of Theology
University of Notre Dame
Notre Dame, IN

RJN replies:

Fr. Baxter’s position is well worth further argument, and I will get around to that in due course. For the moment, I simply state for the record that I do not believe the Catholic tradition “unequivocally endorses” the political order of the U.S. I emphatically reject such a view. As to other matters, more later.

A Confessional State?

When I was at Princeton last year, I read a draft of Father Michael J. Baxter’s article, “Writing History in a World Without Ends.” At that time, I expressed agreement with him that the temptation to Americanism was by no means a figment of the Roman curia’s imagination—either then or now. The large-scale collapse of faith and morality among American Catholics in the last generation proves that Rome was actually quite prescient about what could happen once the Catholic immigrants were assimilated.

Of course in the last century the assimilationists like Cardinal Gibbons and Archbishop Ireland were eager flag-wavers, and the anti-assimilationists were German Catholics who wanted to retain their own cultural identity and disliked the Irish bishops. The Americanizers responded that German particularism is potentially anti-Roman and can lose sight of Catholicity. Both sides made valid points, and Leo XIII responded appropriately in Testem Benevolentiae.

What I argued against Fr. Baxter is that he, too, is an Americanist in a more subtle way. I asked if he intended to take the position of Bishop Dupanloup and Montalembert in the last century: that the “thesis” or objectively best form of government would be a Catholic confessional state, but that in contemporary circumstances Catholics must accept the liberal state as a “hypothesis”—that is, as a tolerable situation necessary in order to avoid greater evils but not as a good thing in and of itself. Fr. Baxter hesitated to say this even though he knows well that John Courtney Murray’s critics (such as Cardinal Ottaviani, Msgr. Joseph Clifford Fenton, and Father Francis J. Connell, CSSR) did uphold this in the American Ecclesiastical Review. I told Fr. Baxter that unless he was willing to uphold in theory the thesis of the Catholic confessional state, his own accusations of Americanism would recoil on him.

I also suggested that Fr. Baxter’s pacifist politics owed more to American sectarian Protestant radicalism than to the Catholic tradition. When Fr. Baxter writes Catholic history as if it began and ended with Dorothy Day and the Catholic Worker Movement, he manifests an Americanist myopia more marked than any displayed by John Tracy Ellis, Jay P. Dolan, or David O’Brien. Fr. Baxter’s purportedly prophetic and evangelical alternative sounds typically American to me—the standard fare long since provided by the Quakers and other “peace churches” in their policy statements. What is so profound or prophetic about that?

As I understand Murray, he held that the thesis of the Catholic confessional state was not a necessary aspect of the Catholic doctrine of church and state, though the medieval and post-Tridentine Catholic states were defensible in their historical context. Fr. Murray’s critics held that he had conceded too much to the theory of the liberal state. Looking at the present American situation, I now think that we should uphold the thesis precisely in order to pursue the ideological critique and political engagement pioneered by John Courtney Murray.

If one realizes that the confessional state is not possible under present circumstances and that all Christian political involvement assumes that any political order is a “hypothesis” in relation to the Kingdom, it is possible to appreciate John Courtney Murray’s seminal work and yet avoid slipping by degrees into what Fr. Baxter calls a “world without ends.”

Ironically enough, this theoretical defense of the old thesis would serve a purpose in our dialogue/controversy with other groups who do not conform to liberal political assumptions: the Christian Reconstructionists (who criticize Abraham Kuyper in much the same way as Fenton criticized Murray;) Orthodox Jews in both Israel and the Diaspora, whose normative tradition has a problematic relation to the Israeli state and to the fact that it is not a Torah-state; and Muslims, whose religion in principle acknowledges no relative autonomy of the temporal sphere. Our mode of argument may be useful to them in their analogous political and religious reflection and action.

If Fr. Baxter is serious, then let him rise to the challenge of defending in principle the thesis of the confessional state. Otherwise, he should take his place next to the Catholic historians whose Americanist assumptions he so sharply criticizes.

W. Robert Aufill
Stillwater, OK

Michael Baxter replies:

Recalling a conversation we had last year better than I, Mr. Aufill complains that I hesitated to endorse in principle that the Catholic confessional state is the best form of government. I still hesitate. I distrust attempts to provide an account of “the state” in the abstract because such attempts legitimate what is in the name of what ought to be. I especially distrust such accounts in modernity because, as Alasdair MacIntyre has argued, the modern nation-state is a dangerous and unmanageable institution that often masquerades as an embodiment of community and a repository of sacred values. Faced with this situation, the Church does not need a theory of the state. What the Church needs is a description of the true character of the state and a set of practices to resist it. To designate the modern nation-state as an instrument by which to propagate the Christian faith is to imperil the Christian faith.

Mr. Aufill, if I read him correctly, is likely to reply that what he is proposing is nothing more than a normative principle to be accepted in theory (as a “thesis”) as a way to remind Catholics “that any political order is a ‘hypothesis’ in relation to the Kingdom” and thus to instill in them a critical perspective from which to engage the present political order in the United States. I am sympathetic with his aim, but I do not believe this to be a very promising strategy, for two reasons.

One, moral and religious formation is not achieved by means of a theory alone, especially a thoroughly disembodied theory such as that of “the confessional state,” which, as Mr. Aufill admits, is “not possible under present circumstances.” Two, the logic Mr. Aufill uses to explain our relation to the liberal state—that it is “a tolerable situation necessary in order to avoid greater evils but not a good thing in and of itself”—smacks of the kind of “lesser evil” logic that undercuts the integrity of moral action, including political moral action, whereby the intention and object must be ordered to the good. Indeed, given the structure of the argument put forth by Mr. Aufill, it is difficult to see what bearing a substantive account of the good has on politics “under present circumstances.” Here he could respond, I suppose, that the good provides guidance for critical, ad hoc engagement with the liberal state; in which case I would agree (this is a central claim in my article): but in order to function in this way, the good must be socially embodied in an actual community.

Rather than retrieve Bishop Doupanloup’s thesis/hypothesis construction in order to inform the sixty million Catholics in the United States that they live in a state of “hypothesis,” I suggest we set our sights on the good as set forth in the natural law and fulfilled and perfected in the supernatural life of Christ, and ask: what practices and institutions are necessary to sustain this form of life? The answer, as I see it, should come by way of descriptions of practice-based, ecclesial communities that exemplify a Christologically shaped politics. At the heart of such a politics is the belief that the peace Christ bestowed as a gift to this Church is best received by embodying that peace as a gift to the world.

But it is not appropriate to label this politics “pacifist,” for the case can be made that it is also represented in the just war tradition, which likewise stands as a challenge to the state-sponsored violence of modern war. Nor is it appropriate to trace the roots of this politics to “American sectarian Protestant radicalism,” for it originated long before Protestantism and it has taken root in places that do not fit the adjective “American” (which Mr. Aufill confines to the territorial boundaries of the United States), as becomes clear in light of the host of martyrs, saints, and disciples who embody it, including Polycarp of Smyrna, Martin of Tours, Benedict of Nursia, Francis of Assisi, Franz Jaggerstatter, Oscar Romero, Christian de Chergé and the other Trappist monks murdered in Algeria last year, to name but a few.

The significance of the Catholic Worker Movement in the context of the history of Catholicism in the United States is that it so clearly exemplifies this kind of Christologically shaped politics. History does not, of course, begin and end with the Catholic Worker. But history does begin and end with Jesus Christ, the Alpha and the Omega, and the Catholic Worker at its best has conformed its aims and purposes to this truth. In so doing, it has demonstrated a basic point that seems to have been lost to Mr. Aufill: that it is possible to avoid an Americanist accommodation to the liberal state without resurrecting the fantasy of the confessional state.

Tillich and Liberalism

Max Stackhouse should be commended for the virtue of constancy (“Humanism After Tillich,” April). He has, for some time now, swum against the theological current in calling attention to what he counts as the forgotten achievements of theological liberalism. And in the course of his writings about why liberal theology and liberal theologians ought not be forgotten, Stackhouse is always interesting, insightful, and almost plausible. For example, I should like to read more on how theology might exercise its prophetic responsibility to a society that must be simultaneously viewed as subordinate to the law of God as well as a dialectical partner whose God-given autonomy serves to “temper religion’s own temptations.”

Missing from Professor Stackhouse’s praise of Paul Tillich is the recognition that perhaps one reason why there are still theologians interested in Tillich is because we stopped following Tillich before there was nothing left of our theology. Stackhouse is correct that, for a time, orthodox theology accepted the sectarian option (which I think is better understood as finding a refuge in the Word and Sacraments of Christ’s Church) and started paying closer attention to Karl Barth’s early warnings about the consequences of liberalism. The reason why Prof. Stackhouse can still commend a liberal theologian is because liberal theology did not succeed in its self-destructive aim to transform itself in a form acceptable to secularism. Do we again need to remind ourselves that liberalism qua secularism is largely an agreement, based on the contradictory assertions of rationalism and empiricism, that belief in God and religion are to be marginalized in culture and politics?

In regards to Prof. Stackhouse’s attempt to resuscitate Tillich, I would not for a moment wish to discount Tillich’s profound courage in resisting Nazism before such resistance was fashionable. Nor does my argument need to suggest that Tillich’s theology, especially in his later years, was guided by anything but the most noble of intentions. Rather, I think that Prof. Stackhouse’s argument suffers fr