Bishop Sheridan has updated and clarified his earlier pastoral letter on the responsibilities of Catholic voters and public servants. The new letter is available here.
Rick
Saturday, June 12, 2004
Bishop Sheridan's update
Revised Response to Rob on the Church and Capital Punishment
[Revised on June 15, 2004.]
This now seems to be the teaching of John Paul II on capital punishment--and it now seems to be the emergent position of the magisterium on capital punishment:
(1) It is morally forbidden for anyone ever to kill any human being intentionally--any human being, not just any "innocent" human being. Such a killing is "in principle" morally forbidden.
(2) To execute a human being under a system of capital punishment is to kill him (or her) intentionally.
(3) Therefore, it is morally forbidden--"in principle" morally forbidden--to execute a human being under a system of capital punishment.
Now, some of you will dispute this interpretation of John Paul II's teaching. After all, you'll say, the 1997 Catechism of the Catholic Church doesn't speak in such uncompromising terms. So, before you go any further, please read the book that offers and defends this interpretation: E. Christian Brugger, Capital Punishment and Roman Catholic Moral Tradition (Notre Dame 2003). Brugger's book was written (while Brugger was at Oxford, I think) under the mentorship of John Finnis and Oliver O'Donovan. I find Brugger's interpretation of John Paul II's teaching persuasive. And Brugger is on solid ground, I think, in arguing that this is the emergent teaching of the magisterium. In a letter to First Things in August/September 2001, commenting on a lecture by Avery Dulles, Brugger wrote:
"The new framework [of the 1997 Catechism of the Catholic Church] leads me to conclude that the Catechism is laying a theoretical foundation for a change (not 'development' precisely understood) in the Church's teaching on the death penalty that would at minimum state that the exigencies of retribution (i.e., of the need to redress the disorder introduced by the criminal's crime) [do not justify] the inflicting of capital punishment. That is to say, death as a punishment is never legitimate."
Of course, to say that such-and-such is the teaching of the magisterium is not to say that the teaching is "irreformable". But for a host of reasons it seems to me that if/when the magisterium affirms the change for which, according to Brugger, it "is laying a theoretical foundation," the magisterium is much less likely to change course on the teaching in, say, the next millenium than (e.g.) on its teaching about contraception.
I hope those of you who are interested in this issue (who among us isn't?!) will read Brugger's book--at least, the nonhistorical chapters--and share your thoughts with the rest of us.
Michael
Friday, June 11, 2004
Doctors and the death penalty
Would it be permissible for a Catholic physician to administer a lethal injection to a prisoner condemned to die? What if the alternative was a poorly trained prison guard? What if the physician only stepped in if the initial injection did not do the job and the prisoner was suffering? These questions are implicated by a New York Times article today addressing the emerging controversy over the ethical propriety of physicians participating in lethal injections, which are increasingly becoming the preferred mode of capital punishment in this country. In fact, the issue may be complicated somewhat by language in a recent Supreme Court decision suggesting that a physician would need to participate, or at least be present, if the procedure was not to constitute cruel and unusual punishment. Nevertheless, my assumption would be that, unless the imposition of the death penalty in a particular case was justified under Church teaching, the Catholic physician's participation would not be permissible, regardless of the practical difficulties or secondary forms of harm the refusal to participate may cause. If anyone disagrees (or can more coherently buttress my inclination), I'd love to hear from you.
Rob
Wednesday, June 9, 2004
More Comments on Kalscheur
Like Michael, I appreciate Greg's detailed and helpful thoughts. A few more of my own:
Greg suggests (quite reasonably) -- on the matter of "law getting ahead of opinion", etc. -- distinction between anti-discrimination law and abortion prohibitions. He writes:
"With respect to abortion, while all might agree that there is a basic moral consensus around the fundamental human right to life, whether or not (or at what point) the unborn are entitled to that protection remains the deeply contested moral issue in our society. The law may not be able effectively to call people to be faithful to the correct understanding of the answer to that moral question through a legal prohibition until there is more consensus. Pedagogical means other than legal prohibitions may have to be given priority as the most effective ways to clarify the public conscience on this issue."
I would add -- and I know that Greg is already aware of this -- that, in fact, there is broad consensus that the unborn child should be valued more in law than is the case at present, and that abortion ought to be more regulated than, at present, the Supreme Court permits. So, it would seem that -- but for quite mistaken Supreme Court rulings -- we could, taking to heart Kalscheur's (and St. Thomas's!) arguments, nonetheless employ, as a "pedagogical means", more restrictive abortion laws laws -- even if not, as Greg says, a prohibition -- precisely in order to help create a consensus that coincides with moral truth.
Greg also writes, with respect to my question about Rawls, etc.:
"Murray's work can be read with a Rawlsian public reason slant (see Leslie Griffin's interesting article, Good Catholics Should Be Rawlsian Liberals, 5 Southern California Interdisciplinary Law Journal 297 (1997), but I think my own conclusions run in the same vein as Michael Perry's. In order to be heard in ways that will actually help to shape the public conscience, how the religious voice participates in public discourse is important. Perry is right, I think, to draw on the work of David Hollenbach and David Tracy in arguing that religious symbols and concepts can possess insights and revelatory power that might illuminate experience in an accessible and intelligible way, even for those not sharing a religious faith commitment, through a public dialogue of mutual listening and speaking. . . ."
I also agree with Michael that neither constitutional law nor liberal political morality, properly understood, constrain the use of religiously inspired arguments in public conversation. And, I agree that we might nonetheless -- for prudential, and even religious, reasons -- elect to frame our arguments in ways that are more "accessible." That said, I was not convinced by Leslie Griffin's paper, and believe that Rawlsian liberalism (unlike the value pluralism of, say, Galston or Taylor) is, in the end, unable to respect, welcome, or even tolerate religious commitment. But, as Dennis Miller would say, "I could be wrong."
Thanks again to Greg.
Rick
Senate Hearing on Religious Expression in the Public Square
I appeared yesterday before the Senate Judiciary Subcommittee on the Constitution, at a hearing called "Beyond the Pledge of Allegiance: Hostility to Religious Expression in the Public Square." My fellow panelists included Professor Vincent Phillip Munoz (whose excellent essay on the Religion Clause appeared in a recent issue of First Things) and Melissa Rogers, currently visiting professor at Wake Forest Divinity School and formerly the (excellent) head of the Pew Forum on Religion and Public Life.
My own statement was related to the conversation we are having about Greg's latest paper, and grew out of a paper I did a few years ago about the place of religious argument in the death-penalty context. Here's a bit of what I had to say:
As President Clinton put it, nearly ten years ago, “religious freedom is literally our first freedom,” and it was central to our Founders’ vision for America. True, the Framers did not always agree about what the “freedom of religion” meant, but they knew that it mattered. And, they were right.
The protections afforded to religious freedom in our constitutional text and tradition are neither accidents nor anomalies. They are not, as one scholar has claimed, an “aberration in a secular state.” Our Constitution does not regard religious faith with grudging suspicion, or as a bizarre quirk or quaint relic. Rather, as my former colleague, Dean John Garvey, once observed, our laws protect the freedom of religion because “religion is important” and because, put simply, “the law thinks religion is a good thing.” In our traditions and laws, religious freedom is cherished as a basic human right and a non-negotiable aspect of human dignity.
Accordingly, our laws and constitutional doctrines should regard governmental restrictions upon religious expression – and not religious expression itself – with sober skepticism. . . .
. . . Many of us misunderstand the meaning of the phrase, “separation of church and state,” and the place of this idea in our constitutional tradition. To be sure, the “separation of church and state” – properly understood – is a crucial component of religious freedom. That is, (a) the institutional and jurisdictional separation of religious and political authority, (b) the independence of religious communities from government oversight and control, (c) a respect for the freedom of individual conscience, (d) strict government neutrality with respect to different religious traditions, and (e) a clear rule against formal religious tests for public office – all of these “separationist” features of our constitutional order have helped religious faith to thrive in America. In other words, the “separation of church and state” – if properly understood – is not an anti-religious ideology, but a way to implement our commitment to religious freedom.
However, many have confused Thomas Jefferson’s “figure of speech” about a “wall of separation between church and State” with an unsound rule that would authorize – and even obligate – public officials to scrub clean the public square of all “sectarian” residue. This view of church-state separation is seriously mistaken. Indeed, as John Courtney Murray lamented more than 50 years ago, arguments like this stand the First Amendment “on its head. And in that position it cannot but gurgle nonsense.”
In fact, our Constitution separates “church” and “state” not to confine religious belief or silence religious expression, but to curb the ambitions and reach of governments. The aim is not to “put religion in its place” – after all, in our tradition, the government lacks the power to determine religion’s “place” – but instead to protect religion by keeping the government “in its place.” . . .
. . . Nothing in our constitutional tradition implies a duty of self-censorship by religious believers. And, nothing about the First Amendment suggests that religious expression is unwelcome or out of place in civil society and public debate. Still, many appear to share the view – to put it bluntly – that it is somehow in “bad taste to bring religion into discussions of public policy.” On this view, as Stephen Carter memorably put it, religion is “like building model airplanes, just another hobby: something quiet, something trivial–not really a fit activity for intelligent . . . adults.”
In fact, however, our Constitution does not demand the “trivialization” of religion and does not require what Richard Neuhaus famously called a “Naked Public Square.” The Constitution does not impose a “don’t ask, don’t tell” rule on religious believers presumptuous enough to venture into public life, and it imposes no special obligation on devout religious believers to “sterili[ze]” their speech before entering the public forum. Active and engaged participation by the faithful is perfectly consistent with the institutional separation of church and state that the Constitution is understood to require. . . . We should remember, as Professor Elshtain has warned, that “if we push too far the notion that, in order to be acceptable public fare, all religious claims . . . must be secularized, we wind up de-pluralizing our polity and endangering our democracy.”
Finally, it must be said that many of us misunderstand the significance of the Supreme Court’s observation that, under our Constitution, “religion must be a private matter[.]” This claim should not be taken to mean that “religion’s place is in the home” – or in the church – or that religious faith does not speak to questions of public policy and the common good.
William James once quipped, “in this age of toleration, [no one] will ever try actively to interfere with our religious faith, provided we enjoy it quietly with our friends and do not make a public nuisance of it[.]” Sometimes, though, religious people are called precisely to engage, respectfully and straightforwardly, their fellow citizens in dialogue about how we should live and live together. The point is, nothing in our constitutional text and traditions implies that religious citizens should refrain from speaking and acting as if their faith has consequences for state and society. After all, as Justice Thomas has insisted, it would be a “most bizarre” reading of the First Amendment that would “reserve special hostility for those who take their religion seriously, [and] who think that their religion should affect the whole of their lives.”
The Constitution protects our right to keep our faith private. It does not, however, require us to privatize our faith before entering into the public square or taking up the responsibilities of citizenship. . . .
Rick
Oman on Mormon Jurisprudence
Over at "Times and Seasons," Nate Oman has an interesting post, "Where is the Mormon Jurisprudence"? Here's a snip from the post:
"People regularly make the observation that Mormons are more concerned with orthopraxis than orthodoxy. In other words, Mormons are more concerned with right behavior than with right belief. The evidence in support of this claim seems fairly overwhelming in my mind. The fact of the matter is that we allow a huge diversity of beliefs on fairly fundamental questions (the nature of God and the nature of man for example), even though we frequently paper over the pluralism with equivicol and vague language. One the other hand, we worry a great deal about proper behavior: The Law of Chastity, the Word of Wisdom, participation in the Church, etc. In this context, I have frequently heard Mormonism compared to Judaism, which is taken as a paradigmatically orthopraxic faith. Which leads to me question:
Why haven't Mormons developed a jurisprudence?"
Rick
Tuesday, June 8, 2004
Charles Taylor on Catholicism and Pluralism
In researching a project exploring the connection between subsidiarity and pluralism, I came across Charles Taylor's essay, A Catholic Modernity? (available in the book of the same name, published in 1999 by Oxford). It speaks directly to our conversations regarding Greg Kalscheur's paper, and contains some powerful and provocative insight:
The view I'd like to defend . . . is that in modern, secularist culture there are mingled together both authentic developments of the gospel, of an incarnational mode of life, and also a closing off to God that negates the gospel. The notion is that modern culture, in breaking with the structures and beliefs of Christendom, also carried certain facets of Christian life further than they ever were taken or could have been taken within Christendom. In relation to the earlier forms of Christian culture, we have to face the humbling realization that the breakout was a necessary condition of the development.For instance, modern liberal political culture is characterized by an affirmation of universal human rights -- to life, freedom, citizenship, self-realization -- which are seen as radically unconditional; that is, they are not dependent on such things as gender, cultural belonging, civilizational development, or religious allegiance, which always limited them in the past. As long as we were living within the terms of Christendom -- that is, of a civilization where the structures, institutions, and culture were all supposed to reflect the Christian nature of the society (even in the nondenominational form in which this was understood in the early United States) -- we could never have obtained this radical unconditionality.
. . . . [this impossibility] doesn't lie in the Christian faith itself but in the project of Christendom: the attempt to marry the faith with a form of culture and a mode of society. There is something noble in the attempt; indeed, it is inspired by the very logic of Incarnation . . . . But as a project to be realized in history, it is doomed to frustration and even threatens to turn into its opposite.
That's because human society in history inevitably involves coercion (as political society, at least, but also in other ways); it involves the pressure of conformity; it involves inescapably some confiscation of the highest ideals for narrow interests, and a host of other imperfections. There can never be a total fusion of the faith and any particular society, and the attempt to achieve it is dangerous for the faith. . . .
Thus, to say that the fullness of rights culture couldn't have come about under Christendom is not to point to a special weakness of Christian faith. Indeed, the attempt to put some secular philosophy in the place of faith -- Jacobinism, Marxism -- has scarcely led to better results (in some cases, spectacularly worse). This culture has flourished where the casing of Christendom has been broken open and where no other single philosophy has taken its place, but the public sphere has remained the locus of competing ultimate visions.
The entire essay is worth reading, as it makes a persuasive case for a limited embrace of value pluralism in the political/legal sphere.
Rob
Thanks to Greg Kalscheur
I found Greg's comments today wonderfully clarifying, thoughtful, and--not least--helpful! Just wanted to record my gratitude to Greg for the comments.
Kalscheur responds
Fr. Greg Kalscheur offers this response to our comments on his new article, John Paul II, John Courtney Murray, and the Relationship Between Civil Law and Moral Law: A Constructive Proposal for Contemporary American Pluralism (see posts below):
Thanks to Rob and Rick for their helpful questions and comments on my article. Without trying to respond in detail to all the points they've raised, I do want to try to offer a few responsive thoughts.
First, a comment on Rob's suggestion that the approach I've outlined might feed into positivism more than I would admit. I actually see my project as solidly within the natural law tradition. John Finnis in Natural Law and Natural Right, for example, argues that the "central jurisprudential concern" of the natural law tradition lies in its desire to understand the relationship between positive law and moral principles. Natural law theory needs to take seriously human law in all its "positivity"; in fact, natural law theorizing seeks to explore the ways in which "sound laws, in all their positivity and mutability" are derived from moral principles (351). A central natural law claim is that the act of positing laws is "an act which can and should be guided by 'moral' principles and rules." (290) In other words, in considering whether the civil law conforms to the moral law, we can't just look to see whether the positive law embodies a given moral principle or prohibition; the moral principles governing good lawmaking are an integral part of the moral law to which the civil law must conform, and those moral principles may sometimes lead us to conclude that the civil law ought not incorporate a particular moral prohibition.
How much consent or consensus is necessary to support good lawmaking? I think that's going to depend on a range of factors, but the primary criterion has to be enough consent or consensus so that the law can be effective in achieving its ends with respect to actually promoting the common good. This probably isn't a satisfying answer, but I think Rob's image of a "sliding scale of consent based on prudential considerations" is the best way to think about it.
How that sliding scale might operate in different cases is relevant to the example of anti-discrimination laws that both Rob and Rick bring up. In his discussion of contraception and the limits of law, for example, Murray drew a contrast between the area of sexual morality, where he thought the pedagogical value of the law was pretty limited, and the area of racial equality. With respect to race, Murray thought that the law had a legitimate role to play in getting "ahead" of the public conscience. For him, the difference seemed to lie in the fact that racial equality concerned issues of justice and constitutional right that are not present in the case of contraception.
Like racial equality, abortion is a matter of public morality involving issues of justice and constitutional right. So shouldn't the law be able to get ahead of the public conscience in the context of abortion? There may be relevant differences between anti-discrimination laws and prohibitions of abortion. Even though anti-discrimination laws in the area of race and gender were initially controversial, and the extension of anti-discrimination norms into new areas continues to be controversial, I think there was and is a basic moral consensus in American society, reflected in the constitutional text of the equal protection clause, that human beings should enjoy equality under the law. Even though controversial in many places when civil rights laws were first enacted (and even though what "equality" means in various contexts continues to be controversial), there is a basic moral consensus on the underlying value, and the law is calling people to be faithful to that value. The law can effectively take the lead in educating resistant areas of society because there is basic agreement on the underlying value. Perhaps the moral aspirations of anti-discrimination law can be higher because they attempt to build on moral aspirations that already have a significant social and constitutional foundation. With respect to abortion, while all might agree that there is a basic moral consensus around the fundamental human right to life, whether or not (or at what point) the unborn are entitled to that protection remains the deeply contested moral issue in our society. The law may not be able effectively to call people to be faithful to the correct understanding of the answer to that moral question through a legal prohibition until there is more consensus. Pedagogical means other than legal prohibitions may have to be given priority as the most effective ways to clarify the public conscience on this issue.
I think Rick is right to call attention to the tension between Murray's insistence on the minimal moral aspirations of the law and Kaveny's more expansive view of the Thomistic pedagogical function of the law. As Rick suggests, I think these views have a relationship of complementary tension, not contradiction. Murray's writing tended to focus on legal prohibitions, so it might make sense to characterize his position as one that stresses the minimal moral aspirations of the criminal law, or the law in prohibitive mode. Kaveny's work provides an essential corrective and supplement to Murray's more limited view of the law. As Kaveny's work clearly shows, legal coercion may have a limited role in education to virtue, but law is more than police officer working through restraint and coercion. Positive law always includes a pedagogical component, and the legal structure as a whole has a role to play in expressing support for life and providing support for the virtues that sustain a culture of life.
Finally, a comment on Rick's concern about whether or not I subscribe to the (discredited) view that insists on non-religious, liberal public reason as a matter of political morality and rationality. Murray's work can be read with a Rawlsian public reason slant (see Leslie Griffin's interesting article, Good Catholics Should Be Rawlsian Liberals, 5 Southern California Interdisciplinary Law Journal 297 (1997), but I think my own conclusions run in the same vein as Michael Perry's. In order to be heard in ways that will actually help to shape the public conscience, how the religious voice participates in public discourse is important. Perry is right, I think, to draw on the work of David Hollenbach and David Tracy in arguing that religious symbols and concepts can possess insights and revelatory power that might illuminate experience in an accessible and intelligible way, even for those not sharing a religious faith commitment, through a public dialogue of mutual listening and speaking. My own sense is that the religious voice will be most effective in public dialogue when it flows from an openness to learning as well as teaching. Bryan Hehir's recent article in Church is also very helpful on this question of how the Church's moral vision can most effectively be brought into dialogue with the culture, especially in its discussion of the differing virtues of a pedagogical stance and a more prophetic stance. I wouldn't equate public accessibility and intelligibility with a Rawlsian understanding of public reason. Instead, what I'm calling for is a mode of public discourse that strives to invite people to a shared moral vision through dialogue, rather than a style that asserts we are in possession of a truth that ought to be enforced, even when others are unable to see that truth.
Thanks again to Rob and Rick for very helpful comments that will keep me thinking about all of this.
Sunday, June 6, 2004
Kalscheur and the Ramifications of Pluralism
I've read Fr. Greg Kalscheur's paper (see Rick's link to the paper below) and highly recommend it to anyone interested in the sort of conversations occurring on this weblog. Since Fr. Kalscheur is tackling the fundamental stance of Catholicism toward the governing legal order, he is by necessity proceeding at a fairly high level of generality. Readers of his analysis of John Courtney Murray, for example, could find support for any range of positions on the hot-button "culture war" issues of the day, depending on their ideological inclinations coming in. That said, Fr. Kalscheur ably makes the case that these issues should be engaged primarily by persuading our neighbors of the truth of our moral claims, rather than convincing legislators to impose our moral claims on the neighbors as if they were undeniably true; he notes that "for law to be effective as a moral guide, some level of consent as to the goodness of the law must be obtained."
I am largely sympathetic with this approach, but I'm wondering if it feeds into the positivist line of legal reasoning more than Fr. Kalscheur admits. If the moral law is to be incorporated into the civil law only where there is sufficient consent as to the law's morality, what non-pedagogical role is the moral law really playing? In other words, if a law has been enacted in a democracy, we can presume that there is a certain level of consent as to the law's morality. If a law is enacted based on an erroneous understanding of the moral law, but the law cannot be corrected until there is sufficient consent that the correction accurately reflects the moral law, it seems that the function of the moral law is only pedagogical.
Further, Fr. Kalscheur takes for granted that the faith community will adhere to the moral law; the only question is whether they subject the surrounding society to the moral law. I'm not sure if the premise can be taken for granted any longer -- that is, it seems to me that much of the faith community's engagement with the legal order will by necessity be focused on ensuring its autonomy to abide by the moral law. In this sense, appealing to the hearts and minds of our fellow citizens will not always be sufficient. Witness what happened in California, where the legislature rejected the Church's reasoned, publicly accessible argument as to why Catholic Charities should not be forced to provide contraceptives to its employees. We are now left not with the question of whether the Church can or should enforce the moral law on the rest of society, but how it came to pass that the Church is no longer permitted to obey the moral law itself. As individualism and consumerism increasingly become enforced collectively in American law, I believe there will be less hand-wringing over whether the Church is prudent to seek to impose moral truth claims through the law, and more focus on making claims to autonomy through the law. Pessimistic as it sounds, we may be seeing more defense, less offense.
Finally, in response to Rick's comment (below) that Fr. Kalscheur's approach seems to contemplate at least some hesitation before advocating anti-discrimination laws, for example, I agree that pluralism cuts a broad, bipartisan swath. Morally laden visions of the good can never be jettisoned from the collective articulation of binding norms of conduct; we just tend to think of certain background moral claims as amoral because they are so widely accepted and unquestioned. Anti-discrimination laws are based on the moral claim that individuals should not be excluded from participating in society based on characteristics like race, gender, etc. This is a fairly uncontroversial proposition in modern American society, and so it meets Fr. Murray's (and presumably Fr. Kalscheur's) consent-based criterion of melding the moral law with the civil law. At the time the initial anti-discrimination laws were passed, though, I'm not sure if the requisite consent was there, in which case, I'd be interested in Fr. Kalscheur's answer. The answer is undoubtedly wrapped up with the level of consent that is needed, and on that I'm unclear: Is it a bare majority (which would seem to suggest that if we democractically can get a provision of the moral law enacted into the civil law, that's enough) something more (which may mean that the criminalization of abortion is off-limits), or something less (which would basically open up all of the "culture war" issues to legislative or judicial action)? Or is it a sliding scale of consent based on other prudential considerations?
In any event, Fr. Kalscheur's paper gives us a lot to wrestle with and discuss -- I welcome others' views.
Rob
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