Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, July 20, 2004

Subsidiarity and the demise of the gay marriage amendment

By Rob Vischer

Beliefnet has an interesting article titled, "The Gay Marriage Ban: Where's the Groundswell?," exploring why the proposed constitutional amendment banning gay marriage has not sparked much grassroots activism among the conservative Christians who are assumed to support it. After President Bush announced his support for the amendment,

Folks in the pews continued to abhor the idea of gay marriage, just as the activists had said they would--but they didn’t do much about it. Fewer than expected bothered to call senators, write emails, send money, or march in demonstrations. By June, President Bush expressed exasperation that his base--whose leaders had lobbied so hard to get administration support for the amendment--wasn’t doing enough to support him.

One possible explanation for the inaction derives from the premise of subsidiarity and its hold on the nation's political psyche, especially among conservatives. Just as many individuals who supported the legalization of abortion were uncomfortable with the top-down manner in which it was imposed on the nation as a whole, it seems that many opponents of gay marriage are uncomfortable with a national, one-size-fits-all remedy. Americans, in large part, like to tackle problems on the local level. One would think that President Bush, more than anyone, would understand that.

Rob

The "Protestant Notre Dame"

By Rob Vischer

Many MoJ readers are no doubt familiar with the ongoing struggles of Catholic universities to maintain any sort of distinct religious identity, but perhaps less familiar with similar struggles in the evangelical world of higher education. Among major research universities with Protestant roots, of course, most of these struggles ended long ago, with secularism earning decisive victories. One notable exception is Baylor, which has been attempting to reconnect with its Baptist roots while raising its academic standing, consciously aspiring to be the "Protestant Notre Dame." The resulting battle for control of the university has become increasingly close and bitter, as today's Houston Chronicle reports.

Rob

Monday, July 19, 2004

Legal Choice = Moral Equivalence?

By Rob Vischer

Two years ago, when my family moved to New York City, my wife was expecting our second child. Soon after we arrived, she was watching our older daughter in a McDonald's play area, and another mother struck up a conversation with her. It was the sort of small talk to which strangers are accustomed until the other woman learned that my wife was pregnant. The woman immediately asked whether she was going to have the baby. Several days later, my wife made her first visit to the doctor's office. The nurse at the reception desk asked her the usual questions, and then asked whether she was going to have the baby.

These two experiences came to mind as I read the NYT piece, ably dissected by Mark and Rick below, in which the author revels in her decision to abort two of her triplets for no other reason than the inconvenience they posed to her lifestyle. The common theme of the article and my wife's experiences, in my view, is the utter lack of moral shame on display. There is, of course, widespread disagreement over whether abortion should be legally prohibited, but there should be no disagreement over whether abortion is a morally troubling act. Perhaps the more relevant inquiry for American society is not the likelihood that abortion will be outlawed anytime soon (between slim and none), but the likelihood that the law's protection of abortion will eventually dissipate any sort of moral presumption against the practice. As we see from the NYT author, when the burdens of shopping for large mayonnaise jars at Costco and moving to Staten Island are even part of the abortion "cost-benefit" analysis, all bets are off.

Rob

Sunday, July 18, 2004

"Eliminate One or More"

By Rick Garnett

I had a similar reaction to the NYT piece as Rick. But I was also puzzled by it. At one point I thought it was a wickedly clever parody of an extreme pro-choice attitude. Surely no one -- even one who has a principled pro-choice position -- could express themselves so coldly, and with such complete indifference to the possibility that these were human lives. And surely only a nasty parodist could concieve of a person who would so exalt shallowly elitist consumer and real estate preferences over two human lives. Of course this person had serious issues -- family experience of women being trapped at an early age, career ambitions, a tenuous relationship with the father -- but she either was -- or steeled herslf to be -- as eager to rid herself of these lives as as she would have been if they were malignant tumors. But I guess it was for real, and not a parody. If so, you don't have to be a pro-lfe absolutist to find this piece dismaying. A person who believes that a woman must have the right to choose should at least be prepared to ask whether that exercise of choice was a moral act. Where is the mother's moral struggle here? Where are the regrets, the mixed feelings? Where is the sense of human potential wasted? Was there any attempt to examine one's conscience? To pursue adoption possibilities? The father's recognition that there were three heartbeats was presented as a male indulgence foisted on the woman, who should not have to think about that fact. Perhaps I'm missing something here, some trace of regret or ambivalence which would suggest that the author was concerned with anything beyond herself. Is there any irony being expressed about the author's determined and undiscussable decision? If not, I have to ask myself what this author is trying to say. If all she is saying is that it was a damn good thing that I could legally get rid of these inconvenient twins so that I don't have to reenact my female relatives' history, then I have to ask why the Times published it. Who cares about such a crass, unexamined decision? Why should we care at all about a person who cares so little about others? Pro choice and prolife people have to find a common ground on which to engage - something like this can only push us farther apart, as it presents "choice" as a value in itself that trumps all other values and eliminates the need to consider the moral dimensions of one's choice.

-Mark

"One Is Enough"

By Rick Garnett

Rob notes (below) one depressing article from today's New York Times. Here is another: "When One Is Enough," in the Magazine, is the account of a Manhattan woman who learns that she is pregnant with triplets, and then "looked at [her boyfriend] and asked the doctor: 'Is it possible to get rid of one of them? Or two of them?' The obstetrician wasn't an expert in selective reduction, but she knew that with a shot of potassium chloride you could eliminate one or more." Having told readers that she lectures at colleges, and lives in a Manhattan walk-up, she confides: "When I found out about the triplets, I felt like: It's not the back of a pickup at 16, but now I'm going to have to move to Staten Island. I'll never leave my house because I'll have to care for these children. I'll have to start shopping only at Costco and buying big jars of mayonnaise." She continues: "When we saw the specialist, we found out that I was carrying identical twins and a stand alone. My doctors thought the stand alone was three days older. There was something psychologically comforting about that, since I wanted to have just one. Before the procedure, I was focused on relaxing. But Peter was staring at the sonogram screen thinking: Oh, my gosh, there are three heartbeats. I can't believe we're about to make two disappear."

Heartbreaking.

Rick

Cultural Progress Through Teen Abortion

By Rob Vischer

There's a disturbing article in today's New York Times titled "Television's Most Persistent Taboo." As all right-thinking Times readers know, the word "taboo" signals an outdated, backwards, and stifling constraint on individual freedom and cultural progress. In this case, the taboo is the networks' reluctance to portray teenage characters having abortions on their programs. Thankfully, some trailblazing programs are changing that, forging ahead in portrayals of characters not only going through with an abortion, but (more importantly) not regretting it. As one writer observed, "If they're talking about it in the schoolyard, we should be able to talk about it on television." And conveniently for the networks, once the television teen idols start having regret-free abortions, there will be even more such talk in the schoolyards. It seems the only time the entertainment industry expresses any degree of humility is in its constant denial of the cultural influence it exerts, especially among the nation's youth. This argument is certainly in the networks' self-interest, for the only way they can justify their programming is to assert, against all logic, that TV does not shape society, but simply reflects who we already are. If the networks are correct, then watching TV would be significantly more depressing than it already is.

Rob

Friday, July 16, 2004

New Article on Constitutional Law and the Development of Religious Doctrine

By Rick Garnett

I've posted, over on the right, a new article of mine, which is forthcoming in the UCLA Law Review. Here's the abstract:

Thirty-five years ago, in the context of a church-property dispute, Justice William Brennan observed that government interpretation of religious doctrine and judicial intervention in religious disputes are undesirable because, when “civil courts undertake to resolve [doctrinal] controversies . . . , the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern.” This statement, at first, seems wise and fittingly cautious, even unremarkable and obvious. On examination, though, it turns out to be intriguing, elusive, and misleading. Indeed, Justice Brennan’s warning presents “hazards” of its own, and its premises – if uncritically embraced – can subtly distort our constitutional discourse.
This Article provides a careful and close examination of the statement’s premises and implications, and concludes that, far from being a “purely ecclesiastical concern,” the content of religious doctrine and the trajectory of its development are matters to which even a secular, liberal, and democratic government will almost certainly attend. It is not the case that governments like ours are or can be “neutral” with respect to religion’s claims and content. As this Article shows, the content, meaning, and implications of religious doctrine are and have long been the subjects of government power and policy. Secular, liberal, democratic governments like ours not only take cognizance of, but also and in many ways seek to assimilate – that is, to transform – religion and religious teaching. And, it is precisely because such governments do have an interest in the content, and therefore in the “development,” of religious doctrine – an interest that they will, if permitted, quite understandably pursue – that authentic religious freedom is so fragile.

Rick

Thursday, July 15, 2004

Abortion and the BBC

By Rob Vischer

While I was in England last week (see below), I was watching the BBC News and they introduced a story on the new 4-D images of a twelve-week old fetus, along with the resulting proposals to reduce the time limit for expectant mothers to have abortions, which stands currently at 24 weeks in the UK. As soon as I heard the topic, I reflexively assumed that they'd have a quote from a pro-lifer saying it's a great idea, followed by a quote from a pro-choicer saying it's a horrible idea, then onto the next story. Much to my surprise, everyone shown in the story said that it was a good idea, including the MP who introduced legalized abortion to the U.K. With his support, he offered this quote: "I think people find it very repugnant to think you are getting close to the point where you are not dealing with a foetus but with the possibility of a baby." A couple of days later, Tony Blair hinted that it was time to revisit the abortion law's time limits, and there was no obvious public outrage, gnashing of teeth, etc.

It almost goes without saying that this sort of honest discussion on abortion policy could never happen in America. One hurdle, of course, is that abortion is generally not a matter for legislation in this country, and so there's not much motivation for folks to discuss it, rationally or otherwise. But even on questions of abortion policy where legislative action is (at least arguably) constitutional, there is no public conversation, but simply a barrage of accusations and counteraccusations, all of which are steeped in the language of rights -- either the fetus/baby's or the mother's. (Witness the Laci Peterson case aftermath.) I don't endorse the UK's abortion policy, nor do I recommend that abortion opponents abandon the rights-based discourse, but I welcome the day when a media reference to abortion actually contemplates a conversation on abortion.

Rob

Virtue Ethics and Legal Education

By Rob Vischer

Last week I was in England to participate in the First International Conference on Lawyers' Ethics, which brought together academics from around the world to discuss theoretical, regulatory, and educational perspectives on professionalism. I was struck by the dominant role that virtue ethics, and morality-driven concepts more broadly, played in many of the presentations. Richard Tur (Oxford) framed the challenge of legal ethics as showing "how anyone living in the law can construct a principled image of self and calling out of the various rules and regulations that govern the legal professions while retaining independence and judgment and thereby . . . contribute . . . to the moral development of the legal professions." Adrian Evans (Monash Univ. - Australia) framed his entire approach around the question: "Can values education 'transform' legal ethics education to make it more effective?" Don Nicolson (University of Strathclyde - UK) argued that "it is not enough that ethical rules tell lawyers how to behave and that lawyers are aware of and understand these rules," for lawyers must also be "motivated to follow the rules and also to follow their moral consciences," and be "sufficiently committed to acting morally in the face of the many counter-pressures that characterise contemporary legal practice." One scholar who takes a deontological, role-differentiated approach to lawyering even lamented the seeming takeover by the virtue ethicists.

There is not nearly as much discussion of values education or virtue ethics in American law schools (Tom Shaffer and his followers being the notable exceptions), which may be attributable, most charitably, to the regulation-heavy approach to lawyering that American law students are responsible for learning. From what I gather, foreign jurisdictions have less "developed" regulatory schemes in that regard. Further, legal ethics is a more recent addition to the academy outside the U.S., where the field received a jump start thanks to the lawyer-dominated scandal of Watergate. As such, it remains to be seen whether or not international legal ethicists will eventually lose sight of the big picture via the academy's tendency toward hyperspecialization and navel-gazing, or whether they will persist in their insistence that virtue has something to do with ethics.

Rob

Tuesday, July 13, 2004

Minimum Wage, Prudential Judgment, and Proper Role of Bishops

By Michael Scaperlanda

Steve raises an interesting point in his post on CST, Economics, and the Minimum Wage. Assuming that the bishops are engaged in an exercise of prudential judgment (as opposed to magisterial teaching) in their call for raising the minimum wage (or any other piece of legislation), their statement raises some troubling issues.

First, isn’t there a danger that taking this position, at least without an explicit disclaimer that this is a matter of prudential judgment on which Catholics can in good conscience disagree, will tend to confuse the faithful who will have trouble distinguishing between magisterial teaching and exercises in prudential judgment?

Second, by making such prudential judgment, do the bishops usurp (or at least marginalize) the proper role of the laity? Paragraph 43 of Gaudium et Spes says that “[s]ecular duties and activities belong properly although not exclusively to laymen. Therefore acting as citizens in the world, whether individually or socially, they will keep the laws proper to each discipline, and labor to equip themselves with a genuine expertise in their various fields. …[E]nlightened by Christian wisdom and giving close attention to the teaching authority of the Church, let the layman take on his own distinctive role.”

Third, by making such prudential judgment, do the bishops stifle or chill debate among the faithful, too closely associating their prudential judgment with the Gospel? Paragraph 43 continues: “Often enough the Christian view of things will itself suggest some specific solution in certain circumstances. Yet it happens rather frequently, and legitimately so, that with equal sincerity some of the faithful will disagree with others on a given matter. Even against the intentions of their proponents, however, solutions proposed on one side or another may be easily confused by many people with the Gospel message. Hence it is necessary for people to remember that no one is allowed in the aforementioned situations to appropriate the Church's authority for his opinion. They should always try to enlighten one another through honest discussion, preserving mutual charity and caring above all for the common good.”

And, Fourth, is their a danger that the bishops, by becoming too entangled in politics at a micro-level on an issue of prudential judgment, will undermine (squander) their own God-given authority to authentically teach on questions of faith and morals? We urgently need our bishops to teach that “the dignity and entire vocation of the human person as well as the welfare of society as a whole have to be respected and fostered; for man is the source, the focus and the end of all economic and social life.” (Paragraph 63) Does this message get drowned out when the bishops take one side in a debate that is open to multiple Catholic Christian perspectives?

Finally, if the call for raising the minimum wage is not an exercise of prudential judgment but a matter of magisterial teaching, the bishops ought to make that abundantly clear.

As an aside, I want to plead ignorance and make clear that I am not informed enough to intelligently take a side in the minimum wage debate.

Michael

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