Category Archives: CLR Forum Guest

Are Evangelicals Underrepresented Among the Legal Elite?

Posted on April 29, 2013 by | 2 Comments

When Elena Kagan joined the Supreme Court in 2010, there was ample chatter about the fact that there were no longer any Protestant justices on the Court.  With six Catholics and three Jews, the Court stood in stark contrast to the bare majority of the country that affiliates as Protestant.  Supreme Court appointments are few in number and idiosyncratic, but there’s a broader religious demographic phenomenon that’s harder to explain away as random:  the underrepresentation of evangelical Protestants among the American legal elite.

First, some definitions and boundaries.  The gold standard for religious affiliation in the United States is the Pew Forum on Religion & Public Life.  Using their affiliation categories, here are the breakdowns for the largest religious demographic groups in the U.S.:  evangelical Protestant 26%; mainline Protestant 18%; Catholic 24%; historically black church (which would include evangelical and non-evangelical Protestants) 7%; Jewish and Mormon 1.7%; unaffiliated 16%.   By “legal elite,” I refer to something with looser boundaries, but still recognizable.  Roughly, it would include elite federal judges (Supreme Court and the most prestigious federal circuits); top legal jobs in the executive branch (Solicitor General’s office, White House counsel, etc.); law professors at top-ranked law schools; and various talent pools that feed into the upper echelon of legal jobs (i.e., student bodies at elite law schools; Supreme Court clerkships).

My strong intuition is that evangelicals are grossly underrepresented in the legal elite.  To focus again on the (admittedly idiosyncratic) Supreme Court, it’s not just that there are currently no Protestants on the court, it’s that at least since the rise of modern evangelicalism as a political force in 1970s, there has never been an evangelical on the Court.  Even though evangelicals have had great success in politics writ large, including the Presidency, Congress, and governorships, they have been conspicuously absent from the top echelons of the federal judiciary.

It’s a good bet that that this underrepresentation stretches back to the beginning of the elite pipeline that feeds the elite echelons.  While I’m unaware of any good data on the religious affiliation of law students at elite law schools, my own experience suggests that evangelicals fall far short of their national demographic numbers in elite law school enrollment.  Several years ago, David Skeel, Larissa Vaysman, and I conducted an online survey of the religious affiliation of first-year students at a top ten law school (a project we are hoping to continue elsewhere).  The 57% of the students who responded provided the following data.  Evangelical Protestants comprised merely 7%, compared to the national figure of 26%, while mainline Protestants and Catholics largely maintained their national shares (16% for mainline Protestant compared to 18% nationally, 20% for Catholics compared to 24% nationally).  Caveat:  this was just one survey and there are all sorts of statistical problems with extrapolating from voluntary online surveys, so take this for what it’s worth.  Still, this snapshot resonated with my intuitions about law school enrollments.  And it would be very surprising if evangelical Protestants amounted to even 5% of the law professors at the top law schools.

Let me be clear that I’m not starting out to tell a bias or victimization story.  The enormous disparity between national demographics and the legal elite (if my intuitions and fuzzy data points are right) could have many different and complicated explanations.  Nor am I necessarily taking a position on the normative implications of evangelical underrepresentation.  For purposes of this post, I just want to make the empirical point, such as it is.  In future posts I will offer some observations on possible explanatory stories and the normative dimensions, if any.

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Posted in Daniel Crane

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Gay Wedding Cakes and Liberalism

Posted on April 22, 2013 by | 7 Comments

Over the past several years, there have been a number of reported incidents in the U.S. where a bakery has refused to make a wedding cake for a same-sex wedding. In the latest case, a bakery in Gresham, Oregon refused to bake a cake for a wedding between two women, citing religious objections.  One of the aggrieved fiancées has filed a complaint with the state attorney general’s office, which is now investigating whether the bakery violated an Oregon statute prohibiting discrimination in public accommodations.

This incident illustrates a wider phenomenon—unwillingness to pursue liberal values when it comes to the politics of sexual orientation.  By liberalism, I mean the strain of European political philosophy that arose in the eighteenth and nineteenth centuries partly as a reaction to the devastating religious wars of the sixteenth and seventeenth century, most particularly the Thirty Years’ War that killed eight million people in central Europe.  Liberals like John Locke, Adam Smith, David Hume, and John Stuart Mill stressed individual rights, limited government, and freedoms of speech, press, religion, contract, and property as antidotes to such bloodshed.  They aimed to allow people with fundamentally different world views to contribute jointly to the projects of government, order, and civil society with minimum friction.  Liberalism is the philosophy at the heart of the enduring American constitutional order.

Alas, liberalism is losing out in the culture wars.  The gay wedding cakes battles are representative of a wider disease that infects people in both camps—invoking the power of government to endorse and enforce one’s world view on matters of sexuality and identity.  Rather than just saying, “I’ll take my business elsewhere,” the impulse is to call the attorney general’s office in support of one’s position, as though law and politics were the appropriate fora for deciding the morality of sexual identity and practice.

The predominant forces in both camps are pushing anti-liberal agendas.  In 2004, the Virginia Legislature passed a statute invalidating private contracts between gay people if they replicated the incidences of marriage.  Conservatives continue to resist political settlements on same-sex marriage that would shift marriage decisions from the state to individuals and private communities.  On the other side, progressives are fighting to enshrine their views in marriage and antidiscrimination laws and school curricula.  In the Chik-fil-A flap last summer, progressive politicians around the country threatened zoning prohibitions or other deployments of state power to fight the forces of “hatred and intolerance.”

Where are the liberals?  Where are the people willing to say: “As much as possible, let’s not decide these questions in the arena of the state.  Let’s let them play out in families, churches, religious communities, social networks, friendships, businesses, and private associations.  Let’s resist the impulse to make these kinds of divisive moral and religious questions political questions.  Let’s not fight another Thirty Years’ War.”

Let me try to preempt some likely objections with two concluding observations.

First, a liberal disposition cannot be confined to circumstances where one disapproves of someone else’s conduct but it causes no harm to others—because that’s an empty set.  It’s child’s play for lawyers, philosophers, and economists  to demonstrate that almost anything one person does affects other people.  When the baker refuses to make the wedding cake, it imposes real distress, humiliation, and inconvenience on the person requesting the cake.  Conversely, having to make the cake would impose real offense and moral indignity on the baker.  Liberalism doesn’t depend on a view that one of the parties really isn’t hurt, any more than free speech depends on a view that words can never be hurtful.  Liberalism is a disposition that says “the state must let pass these sorts of harm—they do not rise to the level of force and fraud where state intervention is justified.”

Second, to espouse liberalism isn’t to pretend that the state never has to make political judgments on issues of sexual orientation.  Since the state runs the military, it must decide whether gay people can serve in the armed forces.  Since the state regulates adoptions, it must decide whether gay people can adopt.  And there are of course other examples.  But the fact that it is sometimes unavoidable for the state to wade into these thorny issues does not justify the state wading in when it doesn’t have to.  The great project of liberalism is to strive continually for resolutions that don’t involve the state deciding divisive issues of  meaning and morality that require choosing between contending world views.  This isn’t always possible, but it’s possible much more of the time than it happens.

Calling all liberals . . .

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Posted in CLR Forum Guest, Daniel Crane, Uncategorized

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Marriage Privatization Won’t Be Easy

Posted on April 17, 2013 by | 2 Comments

Several years ago I wrote a “Judeo-Christian” defense of marriage privatization, by which I mean getting the government out of the business of deciding what marriage is and by what terms it should be governed.  As the cultural wars over same-sex marriage intensify, that idea has gained wide popularity across the political spectrum.  For example, in their popular book Nudge, Richard Thaler and Cass Sunstein devote an entire chapter to advocating marriage privatization.

Many advocates of marriage privatization seem to think that disentangling the state from marriage would be easy.  They argue that the government should just stop issuing marriage licenses.  Marriage would then become a private ceremonial and contractual matter.  The state would enforce marriage contracts just like other contracts.

Although I remain an advocate of marriage privatization, disentanglement would be far from that easy.  The state is thoroughly intertwined with marriage; the Gordian knot cannot be neatly severed.  I’m currently working on article entitled How to Privatize Marriage that tries to work through these complex issues.  My bottom line is that privatizing marriage does not mean that the state would get out of regulating and recognizing intimate unions altogether, but that it would try to create a wider space for regulation and recognition by individuals and social and religious groups.

I’m still working through these issues and won’t try to offer a comprehensive solution yet.  For now, I’d  like to raise three difficulties with marriage privatization that need to be addressed as part of any privatization proposal.  They correspond to functions currently served by state marriage regulation and recognition.

First, the state uses marriage as a marker for the dispensation of state benefits and the extraction of obligations owed to the state by individuals.  This is most obvious in the taxation context, but occurs across a tremendous range of state activities. (I’m using “state” in its broad sense to include all governments).   For example, selective service (i.e., the draft) has typically differentiated between the married and unmarried.  The rules of evidence create “marital privilege” allowing spouses not to testify against each other.  If the government were to stop issuing marriage licenses, it would need to account for the thousands of ways in which laws draw distinctions based on marital status.  If marriage were a purely private creation—anyone could call themselves married according to whatever criteria they chose—these thousands of legal categorizations would collapse.

Second, the state has traditionally regulated marriage to prevent certain kinds of abuses.  For example, prenuptial agreements are not enforced as routine contracts because of the potential for unfairness and imposition by the strong on the weak.  The easy “pro-privatization” answer is that civil courts would continue to enforce marriage contracts only if they were fair.  But what if the married couple had agreed, for example, to be bound by principles of Christian marriage and to have any disputes within their marriage resolved through a process of conciliation, mediation, and arbitration within the Catholic Church?  Nominally, a civil court’s job would be to enforce any arbitration award coming out of the Catholic Church, as courts currently do under the Federal Arbitration Act.  But now imagine the entanglement problems when, for example, the wife challenged the arbitration award as unconscionable or against public policy because the arbitrators had discriminated against her because she was a woman or had left the Catholic Church or wanted to use birth control or had come out as a lesbian or any number of other potentially objectionable reasons.  Having civil courts scrutinize religious arbitral decisions for fairness and conformity with public values raises severe establishment clause and free exercise problems.  And having courts simply rubberstamp such arbitration awards means that the state would have to abdicate its traditional function in preventing various kinds of abuse and unfairness within marital relations.  Just to raise everyone’s hackles, imagine the proceedings to enforce a Sharia divorce judgment in a family court in San Francisco.

Finally, state recognition of marriage plays an important role in facilitating market transactions between private parties.  For example, car rental companies typically allow a married renter to add  his or her spouse as a driver at no additional charge.  Insurance companies set premiums for all kinds of policies based on marital status.  And there are many other examples.  In certifying who is married, the state performs a function that markets value, much as the USDA does as to various kinds of food certifications.  This is not to say that private organizations couldn’t replace the state’s certification role, but, to play law and economics for a moment, that might greatly increase various kinds of transaction costs.  This last point is one that I don’t think has been widely appreciated, but is quite substantial.

I believe that there are answers, which is why I remain an enthusiastic marriage privatization proponent.  But privatization advocates need to start engaging more systematically with these thorny problems.

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How Would Jesus Rule on Same-Sex Marriage?

Posted on April 14, 2013 by | 25 Comments

As the U.S. Supreme Court prepares to rule on same-sex marriage, Christians on both sides of the issue continue to invoke Jesus in support of their position.  Or, more precisely, they invoke a vision of ethics and morality (i.e., inclusivity vs. traditional moral values) that they associate with Christian teaching.  But how would Jesus actually have responded if asked “how should the Supreme Court rule on same-sex marriage?”

That’s anachronistic, of course, but it’s the kind of question that “teachers of the law” routinely flung at Jesus, usually with the intention of entrapping or discrediting him.  The legal elite of Jesus’ day peppered him with hot button legal and ethical questions like “should we pay taxes to Caesar” and “to whom do I owe neighborly duties?”  Often, these questions involved marriage and sexuality:  May a man divorce a woman for any and every reason?  How should a woman caught in adultery be punished?  If a woman marries seven different husbands in succession and then dies herself, which one is she married to in Heaven?  It’s not hard to imagine CNN legal analyst Jeff Toobin cornering Jesus and asking him, “Hey Jesus, how about same-sex marriage?”

It would be presumptuous of me to say how Jesus would answer that question, so I won’t.  But I will offer three observations from things Jesus actually said in response to similar questions.

First, Jesus would likely have faulted both sides of the debate for an excessively materialist perspective.  On one side, we hear that marriage is about procreation and child rearing.  On the other, that it’s about love and companionship.  But Jesus did not understand marriage primarily in terms of its temporal or material effects.  For Jesus, marriage was a spiritual representation of divine relationships.  According to Jesus, God created man and woman—male and female—in the image of God, mirroring the unity and diversity within the Godhead.  Jesus and later apostolic writers referred to Jesus as a bridegroom and the Church as his bride.  Jesus explained that in Heaven people would not be married to one another, since they would be in perfect union with God.  Thus, the ultimate good of marriage was not that it served immediate material needs but that it celebrated the eternal nature of God.

This understanding of marriage has precious little purchase in the contemporary, hyper-materialist world.  Even those who recognize marriage’s “spiritual” component usually mean that psychosomatically—marriage feeds long-term emotional and pyschological needs.  We’ve lost any sense of human institutions as good because of their correspondence to divinity.  Across the ideological spectrum, we’ve given in to Richard Posner’s wish of “unmasking and challenging the Platonic, traditionalist, and theological vestiges in Enlightenment thinking.”  It’s safe to say that Jesus would have had a different take.

Second, and in some tension with my first observation, Jesus might have responded to a question about same-sex marriage by distinguishing between the spiritual ideal and pragmatic legal rules.  That is what Jesus did on divorce.  When asked whether a man should be allowed to divorce a woman for any and every reason, Jesus responded that Mosaic law allowed for divorce because of the hardness of people’s hearts, but that things weren’t that way from the beginning.  Jesus was not advocating a change in the law, but a change in people’s hearts.

Christian thinkers have long debated the distinction between legal and spiritual marital norms.  When Britain was liberalizing its divorce laws in the 1940s, my two favorite Christian writers, J.R.R. Tolkien and C.S. Lewis, took different views on whether Christians should advocate that secular legal institutions mirror the spiritual ideal.  Tolkien opposed the divorce reforms on the grounds that the spiritual should inform the legal.  Lewis argued for a pragmatic differentiation between the spiritual and the legal.  In my view, Lewis was closer to the position staked by Jesus.

Finally, chances are that Jesus’ answer would go to issues far beyond the narrow question presented.  This was almost invariably Jesus’ pattern when confronted with hot-button legal issues. He always found the question itself less important than the darkness it exposed.  Thus, he turned the question about paying taxes to Caesar into condemnation of his questioners’ failure to honor God, the adultery penalty question into an indictment of his interlocutors’ self-righteousness, and the divorce question into an exposé of spiritual hardness.  I shiver to think of how he might turn the same-sex marriage question back on us.  All of us.

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Posted in CLR Forum Guest, Commentary, Daniel Crane

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Welcome Back to Dan Crane

Posted on April 14, 2013 by | Leave a comment

Welcome Back to Dan Crane (left), who will be guest posting with CLR Forum this month and next. Dan is the Frederick Paul Furth, Sr. Professor of Law at Michigan. He joined us last fall for an online debate with Barak Richman on antitrust and the clergy employment. Great to have you back, Dan!

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Posted in CLR Forum Guest, Daniel Crane, Mark L. Movsesian

Enforcing the “Jewish Prenup”

Posted on March 29, 2013 by | Leave a comment

Thanks to Mark for the invitation back to the CLR Forum for a guest post.  Yesterday, a couple of law blogs (see here and here) picked up a story in the Jewish Daily Forward about an important Connecticut state court decision that enforced what is often referred to as the “Jewish Prenup” (“In Victory for ‘Chained’ Wives, Court Upholds Orthodox Prenuptial Agreement“).  I’ve written a bit about the decision previously, but wanted to explain a little bit more about what is at stake.  [UPDATE: Here's a copy of the decision Light v. Light reprinted from Westlaw with permission of Thomson Reuters.  If you wish to check the currency of this case by using KeyCite on Westlaw, then you may do so by visiting www.westlaw.com.”]

Under Jewish law, only a husband can initiate a Jewish divorce.  Moreover, if a husband is “coerced” into granting a divorce, then the divorce is considered invalid.  This combination of rules has caused some significant problems for Orthodox Jewish women seeking to end their marriage where their husband refuses to grant them a Jewish divorce document.  In order to address this growing problem, a number of Jewish organizations – most prominently, the Beth Din of America – created a prenuptial agreement, which is now signed by a growing number of Orthodox Jewish couples.  This agreement’s most salient feature is a provision where the husband agrees to provide his wife with financial support in the amount of $150 per day “so long as the two . . . remain married according to Jewish law.”  The purpose of this provision is to walk a fine line between placing financial pressure on the husband to ensure he grants the divorce without placing so much pressure so as to render any subsequent divorce granted by the husband “coerced” (for a recent article exploring various considerations on this and related points, see here starting on page 12).

It was this support provision that was enforced by the Connecticut Superior Court in its recent decision in the case of Light v. Light.  In so doing, the court considered the husband’s claim that enforcing the prenuptial agreement would violate the First Amendment by requiring the court to “consider[] religious doctrines and ceremonies.”  However, the court rejected this argument, holding that the prenuptial agreement could be interpreted and enforced in accordance with “neutral principles of law”:

In the present case, a determination as to whether the prenuptial agreement is enforceable would not require the court to delve into religious issues. Determining whether the defendant owes the plaintiff the specified sum of money does not require the court to evaluate the proprieties of religious teachings. Rather, the relief sought by the plaintiff is simply to compel the defendant to perform a secular obligation, i.e., spousal support payments, to which he contractually bound himself.

It is important to note here that the prenuptial agreement does not require the husband to grant his wife a Jewish divorce.  Indeed, courts have differed as to whether a contract in which a husband agrees to grant his wife a religious divorce is enforceable; the issue raised in such cases is whether or not civil enforcement of a contract that requires a husband to grant a religious divorce violates the religion clauses of the First Amendment (for contrasting views, see here and here).  By contrast, the prenuptial agreement simply requires the husband to make support payments, thereby avoiding these potential First Amendment problems.

This decision – which is in my view both correctly decided and well reasoned – is likely to have significant impact on any future cases involving this increasingly popular prenuptial agreement.  The “Jewish prenup” has done an impressive job of avoiding a variety of both constitutional objections and Jewish Law conundrums.  And as a result, this prenuptial agreement is likely to go quite far in protecting Orthodox Jewish women by providing them with the financial leverage necessary to ensure that they receive their religious divorces from otherwise reluctant husbands.

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Posted in Uncategorized, CLR Forum Guest, Michael A. Helfand

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True Power as Service

Posted on March 25, 2013 by | Leave a comment

pope

At the special Mass celebrated for the beginning of his new pontificate, Pope Francis focused his homily on the protection of the weak, the poor, and the environment.  Some passages from the homily make it possible to understand what Pope Francis has in mind when he speaks of a renovated way of understanding the nature of power and its use.

In the homily, Pope Francis stated, “I would like to ask all those who have positions of responsibility in economic, political and social life, and all men  and women of goodwill: Let us be protectors of creation, protectors of God’s plan inscribed in nature, protectors of one another and of the environment.” And he added: “Let us never forget that authentic power is service … . Only those who serve with love  are able to protect.”

The election of Pope Francis comes at a time of profound changes in the Church and also in the wider society. The invitation I have quoted from his homily probably should be read as an appeal to both realities. The changes in the governance of the Church will be an important issue on the new Pope’s agenda and Francis probably wanted to signal the necessity of understanding and making use of power in a reinvigorated way. In this regard, it is noteworthy that he will hold Mass on Holy Thursday at Casal del Marmo Detention Center in  Rome and will wash the feet of the young inmates detained there.

The coherence between words and actions seems to be what Pope Francis is asking of the Church and society’s leaders, political and non-political.

The full text of the homily is available here.

 

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Posted in Commentary, Pasquale Annicchino

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Heimbach-Steins on the German Circumcision Case

Posted on March 20, 2013 by | Leave a comment

In May 2012, a regional court in Cologne ruled that the circumcision of a boy, carried out for religious reasons, qualified as a crime under German law. The court reasoned that the child’s right to physical integrity trumps religious and parental rights—a decision that greatly concerned Germany’s Jewish and Muslim communities. The decision is available in German here and in English in an official and abbreviated version here.

In December 2012,  the ReligioWest project at the European University Institute sponsored a lecture by Marianne Heimbach-Steins (Institut für Christliche Sozialwissenschaften- Universität Münster) on the decision and the general topic. She has now published the paper for ReligioWest. Here’s the abstract:

In May 2012, a German court in Cologne ruled that circumcising young boys represents grievous bodily harm. This decision, which touched upon the questions of freedom of religious practice, identity and children’s rights, was condemned by Jewish and Muslim representatives in Germany, but it was also widely and controversially debated by civil society and politicians. The German Parliament recently passed legislation protecting circumcision as a religious practice, but the debate is likely to continue. In this paper, Marianne Heimbach-Steins, director of the department of Christian Social Ethics at the University of Münster (Germany), discuss this case and its implications for the definition  of religious freedom.

Her working paper can be downloaded here.

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Posted in Pasquale Annicchino, Scholarship Roundup

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Pussy Riot Goes to Strasbourg

Posted on March 13, 2013 by | 1 Comment

Year by year, it becomes clearer that Russia will be an important participant in global conversations about law and religion. This is true with respect to religious law—the canons of the Russian Orthodox Church (ROC)—and also with respect to church- state and religious freedom issues.

For European scholars, it will be crucial to understand how the vocal and active presence of the ROC in the courts will influence the case-law of the European Court of Human Rights (ECtHR). I have already shown that the ROC was a key player in the Lautsi case on the display of the crucifix in Italian public schools. After the first decision in Lautsi, Metropolitan Hilarion of Volokolamsk, chairman of the ROC’s Department of External Church Relations, clearly expressed his opinion–on the judgment, the Court, and the need for action by religious groups–in a letter to the Vatican Secretary of State, Cardinal Tarcisio Bertone:

“We consider this practice of the European Court of Human Rights to be an attempt to impose radical secularism everywhere despite the national experience of church-state relations. The above mentioned decision is not the only one in the practice of the Court, which has increasingly shown an anti-Christian trend. Taking into account the fact that the decisions of the European Court of Human Rights have clearly lost touch with legal and historical reality in which most of the Europeans live, while the Court itself has turned into an instrument of promoting an ultra-liberal ideology, we believe it very important that religious communities in Europe should be involved in a discussion concerning its work”.

For these reasons, it will be interesting to see how the ECtHR decides the recently-lodged case of the Pussy Riot punk band (above), some of whose members were arrested after performing a “punk prayer” in one of the most important Russian churches. Maria Alekhina, Yekaterina Samutsevich and Natalia Tolokonniva were in fact sentenced to two years in prison on the charge of “hooliganism motivated by religious hatred”. The complaint at the ECtHR, filed one month ago, alleges that the group’s conviction amounts to a violation Convention’s guarantees of  freedom of speech, the right to liberty and security, the prohibition of torture and the right to a fair trial.

If the cases moves forward, it promises to be an important one in many regards: both for the legal arguments and standards that the Court will apply to balance (or not) the different rights at stake, but also for the position religious groups, like the ROC, take in any third party interventions before the Court.

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Posted in Commentary, Pasquale Annicchino

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The Rise of the “Stars and Stripes” Cardinals in Rome

Posted on March 6, 2013 by | 1 Comment

The College of Cardinals began its pre-conclave meetings (the so-called Congregazioni Generali) this week in Rome, with 153 members in attendance. Of them, 115 are under the age of 80, and therefore eligible to participate in the papal election. The question popping up in every Italian newspaper article and commentary is, of course, the same: who will be the new Pope?

While, for obvious reasons, it is impossible to predict the most likely outcome of the cardinals’ decision, it is true that European, and especially Italian, media have devoted particular attention to Cardinal Timothy Dolan and to American cardinals in general. For instance, two days ago the daily Corriere della Sera, the most influential Italian newspaper, had a long interview with the Archbishop of New York . Yesterday, La Repubblica published a long article on the “Stars and Stripes cardinals” and how they are approaching the conclave.

Why are American cardinals receiving so much attention? One obvious, and superficial, reason is that they are much more skilled, as compared to other cardinals, in communicating and establishing relationships with the media. But there is another factor. The United States’ ability to preserve a vocal religious presence in the public sphere has always raised interest and curiosity in Rome, and especially now, in a time when the secularization of Europe is growing at an unprecedented level. It is not to reveal a secret to say that Benedict XVI himself, on many occasions, expressed appreciation for the “American model,” a model in which religious arguments in the public sphere are heard and debated much more than in Europe.

Why did this American model fit better with Benedict XVI’s approach and teachings? According to John L. Allen, Jr., Benedict XVI, contrary to the conventional narrative, tried to shape his teachings on the basis of an “affirmative orthodoxy.” In a conversation with Archbishop Dolan (A People of Hope, Image Books, 2011) Allen defined affirmative “in the sense of being determined to present the building blocks of orthodoxy in a positive key.” The emphasis would therefore be on “what Catholicism embraces and affirms, what it says ‘yes’ to, rather  than what it opposes and condemns.” This affirmative orthodoxy works much better in a social context, like America’s, which welcomes religion in the public sphere and in which religious arguments are heard.

Today, the real challenge for the Catholic Church, especially according to many European cardinals, is religious indifference and the coming of a post-Christian world represented by a new type of man: the homo indifferens. As a result, the American experience, which represents, in many accounts, a hopeful and affirming Catholicism,  is seen as a success story in Rome. This does not mean that in a few days we will have an American Pope. But  I’m sure, like it or not, that the “American model” will matter in discussions on the future of the Church.

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Posted in Commentary, Pasquale Annicchino

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