They have weekends in Canada, no?

I don't know how scared I'd be of a cease-and-desist letter written by an attorney who used the phrase "end of business on February 22, 2015."

The Supposed Scandal of Proper Attire

Whiskey Catholic doesn't have a comments box, so I will make some comments on a recent post in this space.

First, the minutiae: the query posted by Whiskey Catholic contributor Michael asks about a "white tie" function and the lay perception of proper clerical attire thereat. Michael responds with a statement about "a black tie dinner." These, of course, are not the same thing. White tie is formal, black tie is semi-formal. Most American men will never again have the opportunity to attend a true white-tie function. It is our loss. In either event,* however, the proper clerical attire is not merely a cassock (as Michael says), but a cassock and ferraiolo. If a secular priest appeared at a formal function without a ferraiolo, he would be---and I would certainly think him---sloppily under-dressed. As for cuffs, one does not wear barrel cuffs with formal-wear. Laymen certainly do not, and it has been my impression (although I have not consulted an etiquette guide on the topic) that clerics do not either. So yes, a secular cleric at a formal or semi-formal affair should wear linked cuffs.

Second, the more substantial point: Michael's general take on the inquiry is spot-on. It bears noting that all of the situations inquired about by the reader involve the hypothetical priest being "on duty" or "at work," so to speak. The issue is not what does a priest wear about the rectory when reasonably secure from inquiring eyes, it was what does the priest wear when out and about, performing his sacred functions or at least appearing in public qua priest. And the laity not only expect, they desperately need, priests to conduct themselves in those moments in a manner concomitant with the dignity of their priesthood. (Frankly, we all need to conduct ourselves in a manner more concomitant with even basic human dignity, particularly in terms of dress.)

If I may diverge on one point, I can think of plenty of times it would be appropriate for a priest to wear sneakers, but they all involve athletics, or perhaps gardening. Priests, after all, can garden, play sports, and go running without giving scandal.

The risk of scandal is not from the priest who is properly attired, but rather from one who slouches about his parish in orange sneakers.


* If there is a distinction between clerical formal and semi-formal attire, I have never heard about it. But I haven't done a study. In a sane world, one would learn these things in a seminary, instead of debating whether one is expected to wear tennis shoes.

Bad Tennessee Decisions: State v. Marcum

The idea has been advanced recently that it is an attack on the independence of the judiciary to suggest that members of the appellate courts should be dismissed via retention election. I submit that most Tennessee appellate judges should be so dismissed, on the basis that our appellate courts routinely demonstrate legal reasoning so poor as to shock the conscience.

Here is an example: State v. Marcum, 109 S.W.3d 300 (Tenn. 2003). This is a criminal appeal involving the proper interpretation of a statute that is not exactly fit for mixed company, Tennessee Code Annotated § 39–13–501(7). That statute provides:

(7) “[Defined Term]” means [A], [B], [C], [D], or any other intrusion, however slight . . . .

In the statute, the terms that have replaced by letters are assorted acts. The Supreme Court holds, in Marcum, that act [C] can be committed without an "intrusion": "The phrase, 'or any other intrusion,' has no modifying effect upon the defined . . . acts. The word 'or,' as used in the statute, is a coordinating conjunction that functions merely to introduce a generic non-specific alternative."

This is nonsense. The word "or" is certainly disjunctive, but the court has read the word "other" out of the statute. The word "other" is certainly descriptive of the preceding list. Conversation would become impossible otherwise:

Q: Do you have any pets?
A: A dog, a cat, and a fish.
Q: Do you have any other animals?
A: A dog, a cat, and a fish.

Rinse, lather, repeat. The word "other" means that A, B, C, and D are all acts that involve "intrusion," but if the legislature left any off, they count too. Ejusdem generis and Noscitur a sociis both suggest this result: you do not read words in a statute in isolation. (Those principles also reinforce the conclusion that "intrusion" should be an element of each act, given the Defined Term, which, let us say, suggests such an element.) And each word in the statute should have a meaning. Deleting the word "other" yields precisely the result that the court reached: reaching the definition of each item without reference to the "intrusion" element. What we have here instead is sloppy, results-driven adjudication. If the court wants to adopt a "the sonofabitch had it coming" rule for criminal cases, let them do that and then take the consequences. 

Still an Americanist Rag

I have to confess that I have never cared for Joseph Bottum. His writing when he was at First Things regularly struck me as overly ambivalent. In fact, I stopped frequenting First Things' websites because it became difficult to discern what the publication was actually doing.

Now Bottum is out at First Things (something I hadn't even known, see supra). And he's appeared instead in the editorial pages at the flagship of Americanist rags, Commonweal. What has Bottum come to tell us? "That [t]here is no coherent jurisprudential argument against [same-sex 'marriage']."

Well, that's a surprise to a lot of people who have gone to lengths to articulate a long list of such arguments, I'm sure. Perhaps Bottum means "there is no winning jurisprudential argument against same-sex 'marriage.'" But that's a very different statement. Lots of losing arguments are coherent, and a fair number of losing arguments are right.

Bottum goes on to insist that American Catholics "should accept state recognition of same-sex marriage simply because they are Americans." Yes, Mr. Bottum is here to tell us that being an American dictates what you should believe, fiddlesticks to popes, bishops, and the CDF. Down with popery indeed. Leo XIII is dead, after all.

If Bottum's essay isn't craven Americanist nonsense, nothing is. 

I would say one should go read it, but I provide the link mainly in hopes of creating unfavorable google results. Unless one is interested in the sentimental details of Mr. Bottum's friendships, his thoughts on the USCCB's bad public-relations skills, his poor opinion of John Finnis, or his belief that what really matters is that lots of people like the Catholic Church, the essay is not worth the time.

Do not think that I came to send peace upon earth: I came not to send peace, but the sword.

should accept state recognition of same-sex marriage simply because they are Americans - See more at: http://www.commonwealmagazine.org/things-we-share#sthash.nnC3Zenm.dpuf

should accept state recognition of same-sex marriage simply because they are Americans - See more at: http://www.commonwealmagazine.org/things-we-share#sthash.nnC3Zenm.dpuf

There is no coherent jurisprudential argument against it—no principled legal view that can resist it - See more at: http://www.commonwealmagazine.org/things-we-share#sthash.nnC3Zenm.dpuf

There is no coherent jurisprudential argument against it—no principled legal view that can resist it - See more at: http://www.commonwealmagazine.org/things-we-share#sthash.nnC3Zenm.dpuf

There is no coherent jurisprudential argument against it—no principled legal view that can resist it - See more at: http://www.commonwealmagazine.org/things-we-share#sthash.nnC3Zenm.dpuf

There is no coherent jurisprudential argument against it—no principled legal view that can resist it - See more at: http://www.commonwealmagazine.org/things-we-share#sthash.nnC3Zenm.dpuf

Fr. Longnecker on the Immigration Act of 1924

Fr. Longnecker, the South Carolina priest and convert from evangelicalism who writes the Standing on My Head blog (which apparently has been absorbed by the internet amoeba of vapid religious prose, patheos.com), has not technically voiced his support for the Johnson-Reed Act. But he doesn't particularly care for your grubby, knuckle-dragging, Romish ancestors with their bad genes and undemocratic racial dispositions.

The comment boxes at the Internet Amoeba of Vapid Religious Prose are onerously regulated by software I dislike, so I'll make a note on Fr. Longnecker's point here. To wit:

Fiddlesticks. Catholics in every age have abjured the Faith because the prince of this world tempted them to do so through his assorted allurements, of which wealth, social acceptance, and worldly interests are but notable examples. They did so in unprecedented numbers in the West during the twentieth century because their priests, bishops, and school teachers stopped telling them to do otherwise. The role that the relationship between their culture and the Faith played was merely that they continued (and in some cases still continue) to call themselves "Catholic" long after they ceased to be such in any but the strictest canonical sense.

These people who Fr. Longnecker thinks were so misguided---these Poles, Irishmen, Slovaks, Czechs, Italians, and Irishmen---were the faithful. There never was any Catholicism other than the Catholicism that they, and their confreres in other societies, lived out within the milieu of their cultural experience. Of course the faith shaped their culture and became a part of it: the cultural expression of the faith, in immigrant communities in the U.S. and back in Europe, was the residue of a civilization that had been transformed by the Church. This is precisely what the Faith's role vis-a-vis the world is supposed to be: if the Church is something to which we belong on days other than Sunday, it must play a seminal role in defining our other activities, our meals, our celebrations, and our mourning.

The decay of cultural Catholicism proceeded along with the decay of Catholicism in the United States and the West generally. The demise of those communities was a feature of the self-immolation of American Catholicism. But they were not the cause of the disaster, nor even the differentia of the occurrence. They were merely victims, along with the rest, of worldliness and foolishness.

The sweeping criticism of the way in which an entire civilization lived the Faith is absurd. It is beyond absurd when contrasted unfavorably with the supposed virtue of assorted bands of Dutch heretics. And coming from a WASP convert, who lives in a part of the country (one, mind you, of which I am quite fond) that has about as many yak farms as old ethnic Catholic enclaves, it resembles nothing so much as mere chatter from the peanut gallery. Fr. Longnecker has gained wide respect for his often insightful commentary. But his foray into internecine warfare on a topic on which he appears poorly equipped to comment---and in which his rhapsodic praise of his heretic ancestors raises all manner of questions---is lamentable.

For another critique, may I recommend The Bellarmine Forum.

The Vatican Press Office Must Be Abolished

The embarrassing and confusing spectacle of Fr. Frederico Lombardi, S.J., tottering out and issuing bizarre statements about the nature of Church teaching and Canon Law simply must come to an end. What purpose is served by manufacturing mountains of vacuous papers stamped by a Vatican office? Surely the answer is "none whatsoever."

The two Vatican Councils speak at substantial length, if not with astonishing pellucidity, on the various forms in which the Church's Magisterium acts. "Press conferences by Jesuits" are not on the list. The Church has laws. She has liturgical texts. She has papal decrees, encyclicals, dogmatic constitutions, and various concilar documents. She does not need press releases. Publish a schedule of Mass and confession times, a number to call to schedule a baptism, and be done with it. If someone wants to know what the Church says on further matters, let him look to where the Church has already spoken. All the present state of affairs does is make bad situations worse.

The same topic, continued

“If heretics no longer horrify us today, as they once did our forefathers, is it certain that it is because there is more charity in our hearts? Or would it not too often be, perhaps, without our daring to say so, because the bone of contention, that is to say, the very substance of our faith, no longer interests us? Men of too familiar and too passive a faith, perhaps for us dogmas are no longer the Mystery on which we live, the Mystery which is to be accomplished in us. Consequently then, heresy no longer shocks us; at least, it no longer convulses us like something trying to tear the soul of our souls away from us…. And that is why we have no trouble in being kind to heretics, and no repugnance in rubbing shoulders with them… It is not always charity, alas, which has grown greater, or which has become more enlightened: it is often faith, the taste for the things of eternity, which has grown less…”

Henri de Lubac: Further Paradoxes (Newman Press 1958) and reprinted in Paradoxes of Faith (Ignatius Press 1987)

Thanks to Fr. Zuhlsdorf for the quote.

Good Country People

Several people who I respect immensely, notably my former professor Rick Garnett, have recently been advocating the idea that what we really need in this country is to be nicer* to one another. Rick points to a recent post by Robert Miller over at First Things regarding the late Ronald Dworkin. Prof. Miller's thesis is, generally, that one can be a "good person" while holding and disseminating dangerously wrong ideas, and that we should all be nice to people with whom we disagree because, apparently, they're probably good people.

Now, I certainly will not advocate acting uncharitably. But charity demands neither that we be "nice," in a conventional sense, nor that we think that people who spread lies are "good people." Laying aside for the moment the first point, who is a "good person"? That should be an easy question for even the most lackadaisically peeping Thomist. A good person is a person who does good things. And how many bad things must a person do before we agree that he is no longer a "good person" in a conventional sense? Well certainly if he dedicates his life to promoting something evil, it becomes rather difficult to continue to claim that he is nevertheless a "good person." Does a person's wrongdoing "not count" because he refrains from beating his wife, or because he puts a roof over his children's heads? May the saints preserve us from the tyranny of small expectations. This sounds like nothing so much as the classic intellectual-property line: the defendant may not escape liability simply be showing how much of the plaintiff's work he did not copy.

To hold otherwise---that we can say a person, irregardless of the things he believes, is nevertheless a "good person"---is to fall into nominalism and related errors. A person's character is defined by his actions, including his actions of belief and advocacy. So we would never say "Jim believes and advocates the Arian heresy, but is not an Arian," or "Bob vehemently and firmly believes that it is good to barbecue infants, but he's not a barbarian." This makes no more sense than the statement "Steve sleeps with numerous women who are not his wife, but he's not an adulterer."

Granted, "good person" is almost vacuously vague. And even "bad persons," again somewhat vague, deserve love and respect (for themselves, if not for their ideas and actions). But it's stuff and nonsense to say that a person, otherwise guilty of profoundly wrong and destructive actions (such as the widespread propagation of false ideas) is a "good person" because he is not also an axe murderer, or a sociopath, or a burglar. One doesn't get a pass for murder because one says one's prayers at night and gives generously to the poor. One oughtn't to receive a pass on writing vile books because he throws nice cocktail parties.

The advocacy of such passes is Laodicean at best.

* In fairness, the word "nice" does not appear in Rick's most recent post or in Prof. Miller's linked post. It's my gloss, based partly on a prior Mirror of Justice post---to which I don't have a link at the moment---about dinner parties.

A Call to Abolish the Office of the Tennessee Attorney General

The office of Attorney General of the State of Tennessee is an anomaly. First, it is filled by appointment of the Supreme Court, a body before which the Attorney General is charged with representing the interests of the State of Tennessee. Second, it has a disturbing tendency to publish laughably bad advisory opinions.

One of the most visible of those duties is the promulgation of opinions in response to dubia propounded by state officials. Recently, one was submitted regarding HB3576, the 2012 act vetoed by Governor Haslam outlawing Vanderbilt's dissolution-of-the-monasteries policy. The Attorney General's office (over the Attorney General's name) concludes that HB3576 violates the First Amendment's right to freedom of association. Yes, the Attorney General concluded that a legislative act attempting to protect associational freedoms from interference by a private institution actually infringes upon the right to free association.

The Attorney General's Office predicates that conclusion on Boy Scouts of America v. Dale, 530 U.S. 640,
647 (2000). Boy Scouts, of course, is the decision holding that the Boy Scouts cannot be compelled to repeal their restrictions on admission of known homosexuals to certain leadership positions, because doing so would compel the Boy Scouts to associate with persons against their will. The A.G.'s opinion next cites to Wiley Mission v. New Jersey, No. 10-3024 (RBK/JS), 2011 WL 3841437, at *13--16 (D.N.J. 2011), a trial-court decision applying Boy Scouts to conclude that a state law could not compel a nursing home operated by a religious institution to have a home resident on its board of directors. The Attorney General concludes from these authorities that a law prohibiting a private institution from enforcing an all-comers policy on subordinate associations within it impermissibly compels the institution to associate with people against its will.

This is a shockingly poor example of legal reasoning.

Boy Scouts and Wiley Mission---by the Attorney General's own admission and description---concern membership in the plaintiff institution. The private group in those cases said "we choose to limit the scope of our private association to certain people." The right to make that choice and enforce it via one's private group is commonly understood to be guarantied by the First Amendment (at least until one opens up a club house). But this is not what Vanderbilt says at all. Rather, Vanderbilt's statement is "specified conduct is a prerequisite to use of campus facilities and access to otherwise freely available benefits." Vanderbilt is not associating with student groups, because the students who comprise those groups are already Vanderbilt students. Furthermore, the parts of Vanderbilt itself capable of associating or being associated with---its board, faculty bodies, colleges---don't "associate" with student groups or student-group leaders in any meaningful way. The president of Vanderbilt Catholic didn't have an ex officio seat on the board of directors, or a right to harangue the School of Medicine. Rather, the student who could have been president of Vanderbilt Catholic was already on Vanderbilt's campus: the rights, privileges, and (most relevantly) interaction with other members of the university community that he enjoyed qua student would not have been increased by his position at the head of a student organization.

Before moving on, permit me to preempt two responses. First, the idea that use of Vanderbilt intellectual property constitutes an association. Perhaps it does: perhaps there is case law out there standing for the proposition that the right to use Vanderbilt trademarks enjoyed by sanctioned students groups constitutes a constitutionally significant form of association. But the A.G.'s opinion is not predicated on that ground; it certainly does not appear in the opinion's summation of Boy Scouts and Wiley Mission. Indeed, given the existence of an entire body of intellectual-property law dedicated to the question of implied association based on mark usage, I find the thesis questionable at best. Furthermore, nothing appears on the face of the facts that suggests that student groups receive a per se license to use Vanderbilt's name or marks.

Second, there is the issue of money. I find it unlikely that anybody really gives a hang about funding in this debate. But even if they do, universities constantly disclaim the idea that their financial support of student organizations transforms student speech into university speech. Above that, in light of Title IX, it seems wholly risible to claim that the state cannot compel an educational institution to spend money for state-specified purposes regardless of the school's desire to serve those same purposes.

The much apter analogy is that the university is serving in this case as a forum. It permits students to meet in university spaces, to advertise via university communication media, and to access the university's logistical apparatus. Maybe there is a compelling body of case law that prevents the state from compelling private fora from discriminating on  association grounds. But that body is not headed by Boy Scouts. If this is the best the Attorney General can do, it is not an office this State needs.

Geddicks on HHS

A former visiting professor of mine, Fred Geddicks, has written some particularly inane things about the HHS mandate. His original bit, a response at MOJ, and Geddicks' making-it-worse response.

I left the comments below in the ACS comments box.

I find Prof. Geddicks' reference to Estate of Thornton v. Caldor decidedly unpersuasive. Thornton involved a state law that granted unique legal privilege to one class of religious believers, those who found it morally objectionable (or, given the actual facts of the case, perhaps simply inconvenient) to work on Sunday.

If giving a unique legal privilege to a distinct class of religious believers violates the establishment clause, then so be it. Mr. Justice Burger's statement about the burden that privilege places on other persons, while it may have helped rationalize the outcome, cannot logically necessitate it. It's the privilege, not the burden, that the law creates, and if the privilege be unconstitutional, it would be so even if it were socially cost free. (See, e.g., every Christmas-display case ever decided.) Burger's statement about burdens is a dictum.

But even if Mr. Justice Burger's odd statement about burdens were necessary for the outcome in Thornton, it bears no relationship to the HHS mandate at all. What Prof. Geddicks proposes is that the religiously motivated actions of a private individual can impose a constitutionally significant burden on the personal (not religious, perhaps commercial) conduct of another private individual.

This is horse feathers. I know Prof. Geddicks has expressed elsewhere dissatisfaction with Cruikshank, but the rule that non-government actions do not impose Constitutional burdens is not going away (and even if it were, Prof. Geddicks prefers that we discuss the issue under present doctrines). The idea that there is a Constitutionally protected liberty interest in being free from burdens imposed by the religiously motivated actions of other individuals, without the intervention of any privilege, compulsion, or intervention by the law on the part of the religiously motivated actor, is simply absurd. It might be the most absurd and barbaric assertion made by any defender of the Mandate to date.

Let us be clear about what Prof. Geddicks claims here. He cannot be claiming, as he might insist, that it is merely a Constitutional exemption that would be an imposition. That at least would have a flavor of legal compulsion. No, the Professor is saying that the religiously motivated actor's choice to do or not do a Thing (in this case, subsidize contraception) itself imposes a burden on third parties. This has to be the case, because Prof. Geddicks wants us to balance the burden against the claimed liberty interest of the religiously motivated actor in determining whether the Constitutional exemption should exist. Clearly, the Constitutional exemption cannot be used as a justification for its own existence.

In the end, Prof. Geddicks' argument in this regard is either a call for a shockingly tyrannical reduction in the meaning of religious liberty or a specious display of circular reasoning. In fact, it bears many indicia of being both. It is the sort of argument that makes one wish that Rule 11 applied to academic papers.

Advent

n., The time when Catholics stop to remember that the Church began in 1963 (or the 1880s) and that their ancestors never told small children that saints or mythical figures dispensed rewards and punishments during the octave of Christmas.

A Purse

Who died and left a bunch of hipsters and ninnies in charge of deciding that men should now carry purses? I know, some places, like Saddleback, market some attractively rugged-looking leather bags for you to stuff things inside and carry with you. Even otherwise sensible advocates of style shill such things. But should you get one? Here are some simple rules to help you decide:

1. Are you carrying diplomatic dispatches, military orders, court filings, or something closely analogous?
If yes, you can carry a bag; if no, proceed to #2.

2. Are you carrying the bag as luggage---that is, does it hold clothing or other everyday items that you are only bringing with you because you are staying overnight somewhere or traveling beyond the convenient reach of otherwise home-bound accouterments?
If yes, you can carry a bag, but only for the duration of the trip; if no, proceed to #3.

3. Are you carrying surveying equipment, fractometer, large camera, artistic implements, or other equipment needed for a professional or hobby-oriented errand on which you are going?
If yes, you can carry a bag, but only for these purposes; if no, proceed to #4.

4. Is the bag a briefcase?
If yes, you can carry this---but not any other---bag; if no, proceed below.

If you couldn't answer yes to any of these questions, then place the bag on the ground, stand up, walk away, and be a man. Be advised that you are probably carrying, or inclined to be carrying, too many things with you.

Prohibits?

From the Registrar:

"The size of the law diplomas (14x17) prohibits printing them on sheepskin so law diplomas are printed on a fine white paper."

Oh really? The Size came to the registrar's office and warned that someone would have to sleep with the fishes if the law diplomas were printed on vellum? I find that even less plausible than the excuse that it is simply impossible for our printing service to handle or procure such large sheets of vellum.