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, September 21, 2004

Guilt by Association

By Rob Vischer

Eugene Volokh has sparked an interesting discussion (here, here and here) regarding Christians' obligation to condemn the inflammatory anti-gay rhetoric of figures like Jimmy Swaggart. (Swaggart essentially asserted that he would be justified in killing a homosexual.)

Volokh suggests that, as members of a movement built around a common set of beliefs, Christians should police their fellow members to ensure against public stances contradicting those beliefs, or at least to avoid leaving the impression that those stances are acceptable within the movement. I agree completely that Swaggart's statement is beyond the pale, and should be repeatedly and openly labeled as such by Christians. But the broader hesitation to condemn loose cannons like Swaggart, Falwell and Robertson may stem in part from the nature of the evangelical Christian movement. Evangelicals are defined in significant part by their insistence that biblical interpretation and application is properly undertaken by the individual believer within the context of her personal spiritual journey. Certainly some community standards will hold sway, to varying degrees, but their authority is secondary, especially when evangelicals are compared to other faith traditions. In this regard, many evangelicals don't voice their objections to outliers like Swaggart, not because they believe he speaks the truth, but because they defer to his individual interpretive prerogative. Disagreement among evangelicals is not generally a cause for discipline or condemnation; it's an inescapable dimension of the movement.

On an unrelated point, Swaggart may offer some insight, or at least cause for reflection, on the controversy over certain bishops' threats to deny communion to pro-choice Catholic politicians. If Swaggart were Catholic and persisted in espousing a belief that the murder of gays is justified, should he be denied communion? My tentative answer is no, but if we're concerned with sending a clear message that a Christian's willful denial of central tenets of the faith will not be ignored by the surrounding Christian community, isn't the denial of communion an effective and powerful way to communicate that disapproval? Or is it enough to voice the community's objections without calling into question the individual's standing within the community? Perhaps it's relevant that Swaggart is a minister of the faith, not a secular actor in the public sphere. But doesn't the Christian community have a pressing concern to communicate disapproval of any publicly visible Christian's open disregard of Christian beliefs? I don't pretend to have the answers to these questions, but if we expect the Christian community to take seriously its members' espousal of un-Christian positions, we can't presume to pick and choose the positions that warrant such treatment.

Rob

Monday, September 20, 2004

Nathan Hatch on "The Weight of Glory"

By Rick Garnett

Notre Dame's provost, Nathan Hatch, delivered this (I thought) moving and provocative talk after the opening Mass at the University this year. Hatch's remarks built on observations by David Brooks and C.S. Lewis (!) to remind the students that:

Your identity does not derive from how successful you are. All of us, from the top of the class to the bottom, derive our tremendous worth because God, our creator, knows our name, calls us sons and daughters, and takes joy in our own unique gifts. Who you are does not rest on a fickle ability to write brilliantly, to solve the experiment correctly, or climb the organizational ladder.

My second word of advice is this: living in a pressure cooker of achievement, how do we view our neighbors. Our reactions are often twofold, to envy those who seem more gifted and to look past people who seem ordinary. In his recent book on envy, Joseph Epstein notes that envy runs high in the world of art and intellect. “How little it takes to make one academic sick with envy over the pathetically small advantages won by another: the better office, the slightly lighter teaching load, the fickle evaluation of students.”

What is the answer to resenting those who break the curve and ignoring others who seem uninteresting? In his essay, The Weight of Glory, C. S. Lewis asks us to attend to a proper theology of the human person. He challenges us with the awesome reality of the human person, bearers of the very image of God. “There are no ordinary people,” he concludes. You have never talked to a mere mortal. Nations, cultures, arts, civilization––these are mortal, and their life is to ours as the life of a gnat. But it is immortals whom we joke with, work with, marry, snub, exploit. Next to the Blessed Sacrament itself,” he continues, “your neighbor is the holiest object presented to your senses.”

In this academic community, during the coming year, may all of our work be leavened by this reality: Neither you nor your neighbor is an ordinary person.

I've always loved Lewis's "The Weight of Glory." In my view, the observations that "there are no ordinary people" and that, indeed, "your neighbor is the holiest object presented to your senses" are beautiful -- and jurisprudentially significant.

Rick

"The Marriage Shibboleth"

By Rick Garnett

Here is a thought-provoking essay, by Professor Daniel Crane of Cardozo School of Law, on the "marriage debate." Crane's discussion reminds me of some of the things that Paul Griffiths has had to say on the matter (Here's an essay of Griffiths's in Commonweal). Crane (who identifies as an evanglical Christian) writes:

With same-sex marriage licenses pouring out of City Hall in San Francisco before they were declared invalid, state courts inundated with claims of entitlement to same-sex marriage, a federal constitutional amendment proposed to define marriage as a heterosexual union, and the presidential candidates trying to mollify as many constituencies as possible on this hot potato, same-sex marriage certainly has our attention. Indeed, it's becoming a shibboleth.

A shibboleth is a single issue by which a political candidate or party is judged. The word comes from the biblical story of Jephthah and the Gileadites in Judges 12:4-6. Jephthah had routed Israel's foes from Ephraim and was determined to cut them down to the last man. The Ephraimites weren't obviously distinguishable from the Gileadites by physical appearance, and some tried to sneak through Jephthah's lines. So Jephthah devised a clever test: Any man trying to ford the Jordan was required to say the Hebrew word shibboleth, which means "a torrent of water." Since the Ephraimites mispronounced the word as sibboleth, they were easily identified and slaughtered.

When it comes to politics, we evangelicals love our shibboleths. There is a certain convenience in evaluating political candidates, organizations, and movements by their stand on some discrete social issue—think abortion, creationism, and Prohibition. Though reductionist, the shibboleth approach isn't necessarily irrational. If the shibboleth follows closely from a particular worldview, then it may be a reliable predictor about how the candidate, organization, or movement will react to other issues that people haven't had time to think or ask about.

But, before using a shibboleth, we had better be certain that it accurately encapsulates our worldview. The costs of choosing an improper shibboleth are high. Since the purpose of shibboleths is to create a broad rule of action by generalizing from a narrow assumption, error on the assumption means multiplication of the error many times over.

This is why I believe same-sex marriage is a dangerous shibboleth: It reinforces the status of government as the custodian of the institution of marriage. If the church not only abets but actively furthers the notion that marriage owes its legitimacy to the state's approval, then the battle for the family is all but lost.

He concludes his discussion with the following:

None of this should be taken as an argument that the law should recognize same-sex civil unions. There may be important functional (as opposed to moral) reasons why such recognition would be unwise. Nor should a separation of civil and religious marriage lessen our concern over the recent conduct of activist judges and mayors who have tried to impose their own political vision by judicial or executive fiat, contrary to the clear rules established by state legislatures.

But neither should we escalate the culture war by making this debate into a battle for the heart and soul of marriage. If we do that, we concede that the state owns marriage and that the church's function in blessing unions is subservient to the government's. Far better to lose the battle over the legal definition of marriage than to win it and find that the government now owns one of our most sacred institutions.

Rick

The New Property?

By Rob Vischer

Jessica Wilen Berg, a law prof at Case Western, has a new paper titled "Owning Persons: The Application of Property Theory to Embryos and Fetuses." (Thanks to Larry Solum's blog for the tip.) The title pretty much says it all, as confirmed by the abstract:

Embryos are all over the news. According to the New York Times there are currently 400,000 frozen embryos in storage. Headlines proclaim amazing advances in our understanding of embryonic stem cells. And legislation involving cloning and embryos continues to be hotly debated. Despite the media attention, theoretical analysis of embryos' legal status is lacking.

This article advances a number of novel arguments. First, recognition of property interests does not preclude the recognition of personhood interests. Embryos, fetuses and children may be both persons and property. Second, property law is conceptually more suited to resolving debates about embryos than procreative liberty, as the latter is strongest in those cases where procreation has not yet occurred - e.g., sterilization and contraception. Finally, this article is the first to provide a substantive evaluation of the application of property theories.

The approach is sure to challenge commentators on all sides of the debate. For those who argue that embryos and fetuses are persons, the strong property interests will likely be unpalatable. Similarly, the implications of the combined framework for limiting those property rights as the entity develops will likely be unacceptable to advocates of extensive procreative choice during pregnancy. Nevertheless, this framework provides a more accurate understanding of the legal issues, and therefore may facilitate the eventual resolution of the protracted battle regarding the legal status of embryos and fetuses.

Rob

A Shift in Journalistic Sensitivities?

By Rob Vischer

Get Religion has an interesting post on the media's coverage of the death of an "unborn child" in the wake of Hurricane Ivan.

Rob

Sunday, September 19, 2004

When You Care Enough to Send the Very Best

By Rob Vischer

If you're harboring any doubts over the degree to which Planned Parenthood relishes the opportunity to transform the culture, check out the organization's suggested paths of individual activism in the abortion rights battle for hearts and minds. (Thanks to Evangelical Outpost for the link.) These are among the more egregious suggestions; I couldn't let them pass without some interpretive commentary:

"Talk to your clergy about pro-choice topics; encourage them to play a leadership role on these issues in the community and suggest they give a sermon on the ethical value of choice on every Mother's Day or Roe anniversary." (The tough part for ministers, of course, is finding a Gospel passage on which to build this particular Mother's Day sermon.)

"Bring up reproductive rights with your friends and family, including your children. Be loud and proud in your perspective." ("See Johnny? Now do you understand how lucky you are to have been born at all?")

"Ask obstetrician/gynecologists whether they provide abortions and patronize only those who provide the full range of care to their patients." (Individual choice is sacred, of course, except when it comes to physicians, for whom there is only one acceptable choice.)

"Send pro-choice greeting cards for holidays, birthdays, Mother's Day." (Nothing says "I love you, Mom" like a Mother's Day card extolling the virtues of abortion on demand.)

Rob

Friday, September 17, 2004

A Quick Thought on Myers's Statement

By Rick Garnett

I am sympathetic to Archbishop Myers's position, and agree with him that it is probably a mistake to conclude that a candidate's support for abortion rights, and for public funding of abortion, can be excused, or outweighed, by his right stand on, say, social-welfare policy, capital punishment, military action, or health care. That said, I wonder if the Archbishop is right to omit from the candidate-selecting calculus the likelihood that the candidate's right (or wrong) position on abortion will "make a difference" in the real world of policy-making?

For example, I've heard people say (things like) "I will overlook my candidate's wrong position on abortion because there's no hope of changing things in a pro-life direction, but I can still hope for more family-friendly workplace programs or a more peace-oriented foreign policy." Similarly, one could imagine overlooking an otherwise attractive candidate's pro-abortion views in a mayoral or school-board election. It seems to me there should be some room in a conscientious Catholic citizen's decisionmaking for such prudential and predictive considerations. (On the other hand, such a citizen might also want to consider the "message" that an abortion-rights candidate -- particularly an abortion-rights Catholic candidate -- sends, or that a pro-life candidate sends, even in a situation where the legal regime governing abortion is not likely to change).

Now, in my view, it is not the case (except in the most local election) that a candidate's position on abortion makes no difference. Still, I would have liked for Archbishop Myers to address this additional factor.

Rick

Agree? Disagree?

By Michael Perry

[From today's Wall Street Journal.]

Pro-choice candidates and church teaching.

BY ARCHBISHOP JOHN J. MYERS
Friday, September 17, 2004 12:01 a.m. EDT

Amid today's political jostling, Catholic citizens are wondering whether they can, in conscience, vote for candidates who support the legalized killing of human beings in the embryonic and fetal stages of development by abortion or in biomedical research.

Responding to requests to clarify the obligations of Catholics on this matter, the Congregation for the Doctrine of the Faith in Rome, under its prefect, Joseph Cardinal Ratzinger, released a statement called "On Worthiness to Receive Holy Communion." Although it dealt primarily with the obligations of bishops to deny communion to Catholic politicians in certain circumstances, it included a short note at the end addressing whether Catholics could, in good conscience, vote for candidates who supported the taking of nascent human life in the womb or lab.

Cardinal Ratzinger stated that a "Catholic would be guilty of formal cooperation in evil, and so unworthy to present himself for Holy Communion, if he were to deliberately vote for a candidate precisely because of a candidate's permissive stand on abortion." But the question of the moment is whether a Catholic may vote for a pro-abortion candidate for other reasons. The cardinal's next sentence answered that question: A Catholic may vote for a pro-abortion Catholic politician only "in the presence of proportionate reasons."

What are "proportionate reasons"? To consider that question, we must first repeat the teaching of the church: The direct killing of innocent human beings at any stage of development, including the embryonic and fetal, is homicidal, gravely sinful and always profoundly wrong. Then we must consider the scope of the evil of abortion today in our country. America suffers 1.3 million abortions each year--a tragedy of epic proportions. Moreover, many supporters of abortion propose making the situation even worse by creating a publicly funded industry in which tens of thousands of human lives are produced each year for the purpose of being "sacrificed" in biomedical research.
Thus for a Catholic citizen to vote for a candidate who supports abortion and embryo-destructive research, one of the following circumstances would have to obtain: either (a) both candidates would have to be in favor of embryo killing on roughly an equal scale or (b) the candidate with the superior position on abortion and embryo-destructive research would have to be a supporter of objective evils of a gravity and magnitude beyond that of 1.3 million yearly abortions plus the killing that would take place if public funds were made available for embryo-destructive research.

Frankly, it is hard to imagine circumstance (b) in a society such as ours. No candidate advocating the removal of legal protection against killing for any vulnerable group of innocent people other than unborn children would have a chance of winning a major office in our country. Even those who support the death penalty for first-degree murderers are not advocating policies that result in more than a million killings annually.

As Mother Teresa reminded us on all of her visits to the U.S., abortion tears at our national soul. It is a betrayal of our nation's founding principle that recognizes all human beings as "created equal" and "endowed with unalienable rights." What evil could be so grave and widespread as to constitute a "proportionate reason" to support candidates who would preserve and protect the abortion license and even extend it to publicly funded embryo-killing in our nation's labs?

Certainly policies on welfare, national security, the war in Iraq, Social Security or taxes, taken singly or in any combination, do not provide a proportionate reason to vote for a pro-abortion candidate.

Consider, for example, the war in Iraq. Although Pope John Paul II pleaded for an alternative to the use of military force to meet the threat posed by Saddam Hussein, he did not bind the conscience of Catholics to agree with his judgment on the matter, nor did he say that it would be morally wrong for Catholic soldiers to participate in the war. In line with the teaching of the catechism on "just war," he recognized that a final judgment of prudence as to the necessity of military force rests with statesmen, not with ecclesiastical leaders. Catholics may, in good conscience, support the use of force in Iraq or oppose it.

Abortion and embryo-destructive research are different. They are intrinsic and grave evils; no Catholic may legitimately support them. In the context of contemporary American social life, abortion and embryo-destructive research are disproportionate evils. They are the gravest human rights abuses of our domestic politics and what slavery was to the time of Lincoln. Catholics are called by the Gospel of Life to protect the victims of these human rights abuses. They may not legitimately abandon the victims by supporting those who would further their victimization.

Archbishop Myers heads the archdiocese of Newark.

Bainbridge on Ackroyd on More

By Rick Garnett

Check out fellow blogger Professor Bainbridge's post on Peter Ackroyd's (wonderful) biography of St. Thomas More. (I liked Ackroyd's book a little more than Steve did, but I share his view of the book's strengths).

Rick

Thursday, September 16, 2004

Steve Smith on "Conscience"

By Rick Garnett

In light of Rob's posts (below) about "conscience clauses", I note that Larry Solum links to (yet) another interesting-sounding paper by Steve Smith, "The Tenuous Case for Conscience":


If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably "freedom of conscience." But some observers also perceive a progressive cheapening of conscience– even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke "conscience," do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what "conscience" is or why it matters?

This essay addresses two questions. The first is discussed briefly: what is "conscience"? What do we have in mind when we say that someone acted from "conscience"? A second question receives more extended discussion: granted its importance to the individuals who assert it, still, why should "conscience" deserve special respect or accommodation from society, or from the state? That question forces us to consider the metaethical presuppositions of claims of conscience. The discussion suggests that claims to conscience may be defensible only on certain somewhat rarified moral and metaethical assumptions. The discussion further suggests that shifts in such assumptions have transformed the meaning of claims to "freedom of conscience," so that such claims typically now mean almost the opposite of what they meant when asserted by early champions of conscience such as Thomas More, Roger Williams, and John Locke.

Rick

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