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.

Friday, October 22, 2004

Voting Made Easy

By Rob Vischer

Here's a voter's guide for "serious Catholics." It has been ordered in bulk by 1500 parishes across the country, including 50,000 copies distributed within the St. Louis archdiocese. It lists five "non-negotiable issues": abortion, euthanasia, cloning, embryonic stem cell research, and homosexual marriage. It instructs Catholics to rank the candidates based on their positions on "these non-negotiable principles," and warns that they should not vote "for candidates who are right on lesser issues but who will vote wrongly on key moral issues. One candidate may have a record of voting in line with Catholic values except, say, for euthanasia. Such a voting record is a clear signal that the candidate should not be chosen by a Catholic voter, unless the other candidates have voting records even less in accord with these moral norms."

Rob

Thursday, October 21, 2004

Revisiting the Naked Public Square

By Rob Vischer

It's not available online yet, but try to secure a hard copy of the new First Things, which features a symposium marking the 20th anniversary of the publication of Richard John Neuhaus' The Naked Public Square. Among the many noteworthy contributions, a couple stand out in light of the discussions we've had regarding the collectivization of religiously driven moral norms. Stanley Hauerwas notes his fondness for the book despite the fact that it "has little time for 'sectarians' who have allegedly given up on the public square." Indeed, Hauerwas observes that he and his ilk would seem to favor the public square's nakedness, for they "get to say you never should have trusted the world to underwrite your faith in the first place." Hauerwas also declines to accept Neuhaus' compliment that sectarians are a "needed corrective" to "the spineless acquiescence of mainline Protestantism." Sectarians, Hauerwas reminds us, "do not think of ourselves as a 'corrective.' We think what we say about what it means to be a follower of Jesus is true and, therefore, not simply a reminder to those who responsibly get their hands dirty."

On a related line, David Novak applauds the book, but expresses concern with Neuhaus'

growing nationalism, especially his recent tendency to employ the theological concept of election to describe the United States of America as "an almost chosen people." The public morality advocated by the American government, especially by President George W. Bush and his administration, might well put America in the forefront of both the local and international struggle for authentic human rights. Nevertheless, "chosenness" is the preserve of those peoples, like the Jewish people and the Christian Church, who see themselves as having been elected by God. There is a fundamental difference between a community whose immediate warrant comes from a transcendent source ("I am the Lord your God") and a nation whose immediate warrant comes from an interhuman agreement ("We the people of the United States").

As the symposium richly reflects, there is certainly no uniform "Christian" take on the relationship between faith and our common life. There is, however, welcome agreement that the relationship merits continuing exploration.

Rob

Wednesday, October 20, 2004

My Own Take on Catholics and the Presidential Election

By Michael Perry

I've not heard anyone claim that a faithful Catholic cannot conscientiously vote for President Bush. Nor have I heard anyone claim that a faithful Catholic cannot conscientiously decline to vote either for President Bush or for Senator Kerry. (Have I missed something?)

However, I have heard many argue to the effect that a faithful Catholic cannot conscientiously vote for Senator Kerry--and, moreover, that there is no room for a reasonable difference of judgment about whether a faithful Catholic can conscientiously vote for Kerry. Gerry Bradley and Robby George make an argument to that effect in the National Review Online piece to which Rick Garnett posted a link on October 12, 2004. This argument is implausible.

Consider, in that regard, John Langan, SJ, Observations on Abortion and Politics, AMERICA, Oct. 25, 2004, at pp. 9-12. (Father Langan is the Joseph Cardinal Bernardin Professor of Catholic Social Thought at Georgetown University.)

Consider, too, Margaret O'Brien Steinfels, Time to Choose: Voting With a Catholic Conscience, COMMONWEAL, Oct. 22, 2004, at pp. 10-13. (Ms. Steinfels was editor of COMMONWEAL from 1988-2002.)

Now, I'm confident that Gerry Bradley and Robby George and many others do not agree with Father Langan and Ms. Steinfels. Nothing wrong with that. But for Bradley or George or anyone else to insist that Father Langan's argument and Ms. Steinfels kindred argument are unreasonable is breathtakingly arrogant. Read Father Langan's and Ms. Steinfels' essays. See for yourself.

The Steinfels essay is here.

The Langan essay, in a somewhat longer version than the one just published in AMERICA, is here.

If you disagree with me--if you think that, Father Langan and Ms. Steinfels to the contrary notwithstanding, a faithful Catholic cannot conscientiously vote for Kerry, and, moreover, that there is no room for a reasonable difference of judgment about whether a faithful Catholic can conscientiously vote for Kerry--then please tell me and the other readers of this blog precisely where, in your view, Father Langan's and/or Ms. Steinfels' arguments are not merely arguments that you reject, but unreasonable arguments that any faithful Catholic must, in good conscience, reject.

Michael P.

Kerry and Abortion: A Look at Stark Reality Without Distractions

By Greg Sisk

In her op-ed, “Rambo Catholics and John Kerry,” posted previously on this blog, Professor Cathleen Kaveny argues that the election of John Kerry as President would force his most stalwart Catholic critics either to respond with violent resistance or, as apparently would be her preference, be “reduced to silence,” having been revealed as posers. (While saying she opposes “every inflammatory thing the Rambo Catholics write,” Professor Kaveny’s own response struck me as saturated with petroleum-laced rhetoric, most egregiously by constructing and then indicting the strawman of violent threats or tendencies.) More recently, in another statement posted on this blog, Professor Kaveny qualified her earlier statements to say that she meant only to chastise Rambo Catholics who “bully” others. An appeal to the consciences of faithful Catholics and the argument that voting for Kerry would be a serious sin is thus said to be the verbal equivalent of intimidation.

By highlighting the truly remarkable extremism of Kerry on the foundational question of life and his considered choice over his entire career to affiliate himself with the very people who brutally tear unborn children from their mothers’ wombs, I don’t know whether I too will now count as a nascent violent revolutionary or as an ecclesiastical bully by Professor Kaveny’s lights. If that’s what it takes to be placed alongside Gerard Bradley and Robert George (as well as Archbishop Burke, Bishop Sheridan, Archbishop Meyers, etc.), then I must regard these as terms of endearment and ask where I too can enroll in the Catholic Rambo brigades. But it’s all mere distraction in any event, that is, a distraction from taking a clear and unvarnished look at the prospect of a pro-abortion extremist, professing a Catholic communion, being elected to the nation’s highest office.

Those who say they will hold their nose and vote for Kerry too often seem ready to close their eyes as well. John Kerry is not some misguided reluctant “pro-choice” politician who sincerely (if ineffectually) mourns the ever-growing toll of abortion on humanity. Through his career, Senator Kerry has been a calculating, premeditated pro-abortion warrior who has eagerly and warmly endorsed the abortionists themselves in his legislative votes, in his campaigns, and in his circle of political friends and colleagues.

As I’ve written in an article, Abortion, Bishops, Eucharist, and Politicians: A Question of Communion, shortly to be published in the Catholic Lawyer and available by link on this blog, the case of the Catholic communicant who holds political power but refuses to protect the life of the unborn calls upon the sensitive pastoral role of the bishop. Counseling, dialogue, and gradual formation of conscience ought to follow, with ecclesial sanctions being a last resort. At the same time, the bishop has a continuing duty to instruct the flock and protect it from harm. In that article, we offer the example of the Catholic politician who sincerely opposes abortion but has not yet developed the wisdom or summoned the the courage to stand forcefully against the culture of death. With respect to eligibility for the sacrament of Eucharist, we allowed that, while ultimately unsatisfactory and thus acceptable only as a provisional sign of gradual conversion, profession of personal opposition to abortion by a Catholic politician who combines that easily-made assertion with at least some actions to limit or reduce abortions may satisfy the interim predicates for continued admission to the altar. (Some have accused us of being too “soft” in making such an allowance for human weakness, even if regarded as a preliminary step in the road to conversion.)

However, we also emphasized that such preliminary steps toward the culture of life by a politician must be accompanied by frequent and unequivocal public condemnation of abortion and a refusal to collaborate with those performing such evils. At a minimum, we would expect that any Catholic politician claiming respect for unborn human life would turn away as tainted any political money emanating from the abortion practitioner and would refuse with disgust any invitation to appear at a convocation designed to promote the interests of the abortion industry.

Sadly, even among so-called “pro-choice” politicians, Senator Kerry has been an extreme outlier, given his opposition to even the most modest of limitations on the abortion license, his insistence that public funds be devoted to procuring abortions, his vote to permit minor girls to be taken across state lines for abortions without knowledge of their parents, and his regular, easy, friendly and approving liasons with abortionists. It is not for naught that Kate Michelman, president of the NARAL Pro-Choice America, says that “[e]ven on the most difficult issues, we’ve never had to worry about John Kerry’s position.” John Kerry’s miserable record has earned him the abortionist’s praise.

Has John Kerry ever rebuked his abortionist friends, calling upon them to renounce their daily participation in an intrinsicly evil act? Has he ever refused a single dollar of blood-money from the abortion mills and abortion practitioners? Has he ever declined an opportunity to cheer on the abortion-providers and assure them of his unswerving loyalty? Has he ever refused to participate in a rally to provide moral encouragement to the abortionists and their assistants in plying their deadly craft? Has he ever voted for any minimal restriction on abortion, even when that restriction is supported by the substantial majority of the other legislators of his own party?

The plain fact is that John Kerry is not a “pro-choice” politician. Much worse, John Kerry is the candidate of the abortion industry itself.

It is for these reasons, principled reasons far beyond those flowing from ordinary partisan politics, that I and so many others genuinely tremble at the prospect of a President Kerry. It is difficult even to contemplate the appalling spectacle of a professing Catholic who knowingly and freely and energetically gives financial and legal aid and moral comfort to those who daily add to our national holocaust. Watching the most powerful man in the country throwing his arms in a warm embrace around those who kill unborn children, while banishing from government and judicial office those who would promote life, would be heart-rendingly painful. That this same man then could claim communion with the Church of Life is astounding. Such unavoidably would be an act of fundamental dishonesty and contempt for the Church’s witness to life. The scandal that would be caused to the faithful and the injury to the Church’s credibility and voice on issues of life might reverberate for years.

In words expressed by many other bishops as well, although not targeted at Kerry in particular, Archbishop John J. Myers of Newark has explained that “Catholics who publicly dissent from the Church’s teaching on the right to life of all unborn” have thereby chosen to separate themselves from the Church and “in a significant way from the Catholic community.” He asked that such people should “honestly admit in the public forum that they are not in full union with the Church,” and that any attempt by such a person to “express ‘communion’ with Christ and His Church by the reception of the Sacrament of the Eucharist is objectively dishonest.” To emphasize the fuller meaning and the powerful meaning of communion is not bullying; it is a matter of simple integrity.

Finally, contrary to Professor Kaveny’s indictment, the prospect of a Kerry Presidency does not evoke in me any thoughts of violence or plans for revolution. Instead, if this tragedy should come to pass, my heart will be broken. Still, I would not accede to any demand that I withdraw into silence or enter into “a life of monastic prayer” (however much I value those fellow-believers with a vocation to the latter). No, I would not be quiet in my expressions of grief. And when an appropriate term of bereavement had passed, a return to hopeful action would follow. At that time, I would hope to rejoin, both in communion and in concerted action for life, those who had played a role in bringing this debacle to pass by foolishly casting a vote for a manifestly unworthy candidate. We all make mistakes.

But the time for mourning has not yet come. We still may be spared the occasion of such grief. To that end, we must continue to speak, forcefully and faithfully, the truth of life, including calling upon our fellow Catholics to consult a conscience properly formed in the teaching of the Church when casting a vote upon which the lives of the next generation of the unborn well may rest. That some seek to distract us from revealing the frailty or cowardice of politicians who deliberately accommodate evil, while cynically professing communion, is all the more reason to bear witness.

Greg Sisk

More from Cathleen Kaveny on Catholics, Abortion, and the Presidential Election

By Michael Perry

[Cathleen Kaveny asked me to post the message below, which I am delighted to do. This message is in response to some of the comments she has received--comments on her earlier piece, which I posted here on October 16. --mp]


Ecclesiastical Bullies

M. Cathleen Kaveny

My op-ed, Rambo Catholics and Kerry, has prompted some questions. Some
people wondered why I didn't directly respond to Gerry Bradley and Robby
George's piece, Not in Good Conscience, which was itself a response to Mark
Roche's essay, Voting Our Conscience, not Our Religion.. The answer is that I
was trying to change the subject, leaving it to Dean Roche to respond to the
substance of their criticisms. My topic was not the particular arguments in
the Bradley/George piece, but rather a broader rhetorical trend in some
conservative Catholic circles in discussing the obligations of Catholic
citizens with respect to their votes in the upcoming presidential election. In
my view, their piece constitutes but one example of that trend.

Who are "Rambo Catholics"? That is my name for those Catholics who are
trying to bully their fellow brothers and sisters in faith into voting for a
second Bush term. Why "Rambo Catholics"? Well, if I remember the movie
correctly, Rambo was a warrior whose motives were good, but whose means were at
times quite excessive, causing far more damage than necessary. Moreover , he
didn't hesitate to threaten harm to those who stood in the way of his
achievement of a just cause, even if their reasons for doing so were a
difference in judgment, not in goal. So I thought that was an apt--if
colorful--metaphor for the strategy of pro-life Catholics who make it clear
that they brook no political disagreement about how to achieve a world that
protects the most vulnerable, including the unborn. Rambo Catholics are those
who tell their co-religionists, that no pro-life Catholic can vote in good
conscience for Kerry--i.e., without committing a serious sin.

In my view, the moral problem with this strategy of Rambo Catholics in
the context of this election is that it amounts to bullying. What's bullying? In
general terms, a bully is someone who unjustly threatens harm to another party
if that party will not comply with the will of the first party. So, a
schoolyard bully threatens physical harm--to beat up other children if they
don't hand over their lunch money. We grown-ups are far more "civilized" in
our bullying--but no less effective. The type of harm grown-ups trade upon is
more frequently psychological than physical. It generally involves threatening
the loss of a key part of one's personal identity, which is often mediated by
social structures and relationships, some of which may be controlled or
influenced by the bully.

Now for devout Catholics, nothing is more essential to one's identity
than membership in the Church: the body of Christ. So if another Catholic
says to me, "You can't cast a vote for Kerry, no matter what your reasons,
without committing a serious sin, I take that as a threat. What that person
is telling me is that from their perspective, a vote for Kerry puts me outside
the fellowship of the body of Christ. Consequently, they intend to treat me as
if I am no longer a member of the body of Christ. From my perspective, and in
Augustinian terms, this will deprive me of the great good of their fellowship
as aspiring members of the Heavenly City as we sojourn together through the
City of Man. That is not a negligible harm. That is a horror.

One might respond that the threat is justified. But the trouble is, it
is not justified, on any fair reading of the tradition as a whole or recent
pronouncements of the magisterium. Cardinal Ratzinger is not a man known to
mince words. He simply didn't say that no American Catholic can vote for Kerry
in good conscience. He could have, but he didn't. He said that a Catholic can
morally vote for a candidate who supports abortion rights with, and only withm
proportionate reason. Even with full knowledge of the debate ranging in the
U.S., he did not impose a single assessment of proportionate reason on all
Catholics; in the end, he left it up to individual American Catholic voters to
evaluate the issues for themselves--and to evaluate the men running for
president themselves. And so, having formed their consciences, the members of
the body of Christ in America are each going to consider the reasons, and make
their minds--and disagree with one another.

Like Mark Roche, the rest of us pro-life Catholics who are going to hold
our noses and vote for Kerry believe we have proportionate reason for doing so.
Rambo Catholics can disagree with us--even vociferously--that's not bullying.
It's only bullying when they threaten to treat as if we are no longer members
of the body of Christ in good standing if we don't assess the proportionate
reasons in the same way they do--when they tell us, in other words, that we
are committing a serious sin by voting for Kerry, or that we are associating
with moral monsters like racists and Nazis. Notice that the threat isn't
parallel: no pro-life Catholic holding her nose and voting for Kerry is
suggesting that a Catholic who holds her nose and votes for Bush is
committing a serious sin.

So why is this type of bullying so troublesome? Well, bullying is
morally troubling because it demeans both the bullying and the bullied parties.
By bullying, a bully communicates to the bullied party, "I don't care what you
think. I just care that you do what I say--or at least that you shut up
about your disagreement with me and don't make trouble." Bullies aren't
interested in engaging in communication with another person as a person; they
are interested in using him or her to achieve a political objective. Any
interaction between two people in which one attempts to instrumentalize the
other is bad for them both, although in different ways.

Bullying is also morally troubling because it impedes a full discussion of the
issues at hand. Pro-lifers experience this phenomenon all the time. Consider
what happens if you are attending a work function where there are people of all
political and religious viewpoints, and someone says to you, "Any person who
opposes the creation of a right for terminally ill patients to determine the
time and manner of their death with the aid of medication prescribed by a
physician to is utterly insensitive to human suffering--a moral monster."

What are you going to do? On the one hand, you might decide not to speak up--
to preserve the peace, to protect your reputation. If your interlocutor is
nasty, or prone to personal attacks, this may well be a wise strategic
decision. Who wants to be abused or insulted? On the other hand, suppose you
muster the courage to challenge your interlocutor. In that case, your attention
will probably be divided. You will want to deal with the substance of his or
her position on euthanasia. At the same time, you will be unable to dedicate
yourself completely to this task because you will feel an equally strong need
to defend your identity as a merciful human being and not a moral monster,
which your interlocutor has directly challenged. You will want to prove to him
or her that your are a compassionate person, so you begin thinking of indicia of
your own compassion to bring to the fore. Inevitably, the discussion becomes as
much a trial of your character as a consideration of the issues at hand,
siphoning off energy that could have been better spent on the subject matter
itself.

Mark Roche and other pro-life Catholics have attempted to articulate why
they believe there is proportionate reason to vote for Kerry instead of Bush, all
things considered. These reasons might be misguided. Conversely, there might
be other reasons weighing in favor of Kerry that haven't been sufficiently
aired by Catholics (such as our views of their relative intelligence or
judgment of the two men or our relative confidence in their political judgment
to make thousands of important decisions, any one of which could be globally
disastrous). But we can't have a discussion about this in a context where
we're repeatedly told by our interlocutors that any vote for Kerry is a sin, or
even akin to a vote for Nazis or the slaveholders. Why not? Well, go back to
my example of the discussion of the pro-lifer caught in a discussion of
euthanasia at a work function. If I'm in a discussion where a fellow Catholic
who tells me that by holding the position I hold, I'm lumping myself in with
Nazis and slaveholders, well that's telling me I'm a moral monster. It
disrupts my ability to engage in a clear-headed treatment of the issues at hand
in precisely the same way that I described above. You just can't have a good
discussion of important issues with someone who's trying to bully you.

Finally, in the end, bullying is not a politically effective tactic. Most
people instinctively recoil from bullies. Even if we happen to agree with a
bully regarding ultimate ends, and even regarding the strategy they are
pursuing today, we recognize that we might not agree with them on strategy
tomorrow or the next day. And so we know that the tactics they are using
against other people today might soon be turned against us. Who wants to risk
that? Concretely, what this means is further division of the pro-life
movement, with a consequent weakening of its effectiveness. Think about it.
Mark Roche, the Dean of the College of Arts and Letters at the highest-ranked
Catholic university in the country, self-identified as pro-life in the
editorial pages of the New York Times. He also told us why he just can't bring
himself to vote for George Bush. Gerry Bradley and Robby George did not merely
address his arguments, they also questioned his integrity, portraying him as a
tool of the pro-abortion Times. In human terms, how likely is it that Roche,
Bradley, and George will be able to collaborate effectively on pro-life work at
Notre Dame or on the national stage in the future?

So, let's stop the bullying. It's not an appropriate way to treat anyone, let
alone one's fellow members of the body of Christ.

Human Rights for All

By Rob Vischer

Letters from Babylon links to a manifesto titled "Human Rights for All" run in campus newspapers this week by pro-life student groups at America's leading universities.

Rob

Tuesday, October 19, 2004

A Lasting Lesson

By Rob Vischer

Ten days ago my stepdad, Bob May, was killed when he fell from a light pole he was working on. Bob was an electrician and general handyman who never went to college, never read the great books, and never entered into the defining intellectual debates of our time. Nevertheless, he taught me countless lessons since he entered our family when I was ten years old. Many of them are personal, but one seems worth sharing in this forum, as it offers a needed reminder for those in the academy who seek to take faith seriously.

Growing up, my family talked endlessly about religion. We debated theology, explored Christian apologetics, and argued about the cultural implications of faith. Bob did not say much in these discussions, as his background did not give him a whole lot of insight on the intellectual issues that occupied our attention. But one on one, the story was different. Whenever I returned home from college or law school, one of the first questions he would ask was "Rob, how have you seen God in your life recently?" The question would take me aback -- I was perfectly comfortable talking about faith as an abstract concept, much less comfortable articulating my personal life of faith. Eventually, though, I came to see Bob's question as the centerpiece of any discussion that presumes to take faith seriously. We must never lose sight of the fact that, for the truth of faith to matter on the cultural, political, or legal stages, the truth of faith must matter to our daily existence. If we can't articulate that aspect of the faith, the big-picture debates are meaningless sideshows.

A couple of days after Bob died, I was cleaning out his truck and found his old, beat-up lunch cooler. Inside the cooler's lid, he had taped a piece of paper on which he had written the word "PRAY" in big letters. Whenever he opened the cooler, he saw that sign. Bob would not have had much to add to the discussions on Mirror of Justice, but his hand-lettered sign looms large as I contemplate the integration of faith with my intellectual pursuits. If I'm simply trying to sound more clever than the next person or using my God-given ability to grasp for more and more academic prestige, I've missed the point. The intellectual exploration of faith cannot be mistaken for the life of faith. Thanks, Bob.

Rob

Minority Religions and the Religion Clause

By Rick Garnett

Professor Tom Berg, of the University of St. Thomas, has a new paper up on SSRN called "Minority Religions and the Religion Clause." Here is the abstract:

This Article explores a minority-protection approach to interpreting the First Amendment's Religion Clauses. Under such a theory, the Religion Clauses together should be read to protect minority religious beliefs and practices from government burdens, and to equalize the status of minority religions before the government with that of majority faiths. Protecting minorities is not the sole or overriding purpose of the clauses, but it is a significant one. I build on previous scholarly work concerning religious minorities, but in some respects I critique them and reach different conclusions about where a minority-protection approach properly leads.

Part I argues that protection of minority religions should be an important consideration in interpreting the Religion Clauses. Part II addresses difficulties and complications in the idea of protecting minority faiths. The constitutional text protects all religious faiths, not just minorities. In addition, defining which faiths are minorities is more complicated than previous commentators have allowed. Because of America's complex patterns of religious identities, who is a minority will often vary depending on the geographical location, on the institutional setting of a legal dispute, and on how one chooses the key religious differences that sort groups into different categories.

Given these complications, courts generally should refrain from singling out certain religious groups as minorities and treating them differently than other groups. Instead, courts should develop principles for various cases that are applicable to all faiths, but that tend to protect whoever happens to be a minority in the given geographical location, institution, or cultural atmosphere.

Part III develops such principles for the leading categories of Religion Clause disputes. As other commentators have argued, courts seeking to protect religious minorities should read the Free Exercise Clause expansively to exempt religiously motivated conduct from certain laws that impose significant burdens on the conduct. Likewise, the Establishment Clause should be broadly interpreted to restrict government-sponsored religious practices in public schools and other government institutions because of their inherent majoritarian bias.

However, contrary to the common strict-separationist wisdom, permitting government assistance for private religious education and social services can have positive aspects for many religious minorities. The Court's increasing approval of programs of aid is quite defensible under a minority-protection approach, if the program includes measures to protect children and families from being pushed into schools that teach a faith different from their own.

By the way, I'm blogging today from the new law school at the University of St. Thomas, in Minneapolis. Minnesota. The school's facility is fantastic, as is the community of scholars they have assembled in just a few short years. Here is the school's web site. I note that the school's "vision statement" includes the following: "The mission of the University of St. Thomas School of Law , as a Catholic law school, is to integrate faith and reason in the search for truth through a focus on morality and social justice."

Rick

"Free Preach" Rights

By Rick Garnett

This op-ed by Maggie Gallagher includes some interesting anecdotes and observations concerning the rights of religious institutions to engage in "political" expression.

Rick

Disclosure Duties and the Sin of Omission

By Rick Garnett

This paper (mentioned at Larry Solum's "Legal Theory" blog) looks fascinating: Kimberly Krawiec, "Common Law Disclosure Duties and the Sin of Omission: Testing the 'Meta-theories'".

Rick

Previous Articles More Articles

Recent Posts

Categories

Monthly Archive