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, November 19, 2004

"Religious" Arguments, Public Debate, and the New Republic

By Rick Garnett

A few days ago, I linked to an interesting post by Professor Eugene Volokh on the place and role of "religious" arguments in discussions and debates about public policy, noting the important work that our colleague Michael Perry has done on the matter.  Well, here is an essay on the same subject, by the New Republic's Peter Beinart (generally an astute and careful observer), that -- although it makes many sound points -- in my judgment misses the mark.  He writes:

It's fine if religion influences your moral values. But, when you make public arguments, you have to ground them--as much as possible--in reason and evidence, things that are accessible to people of different religions, or no religion at all. Otherwise, you can't persuade other people, and they can't persuade you. In a diverse democracy, there must be a common political language, and that language can't be theological.

Sometimes, conservative evangelicals grasp this and find nonreligious justifications for their views. . . .  Such arguments are accessible to all, and thus permit fruitful debate. . . .  But, since the election, the airwaves have been full of a different kind of argument. What many conservatives are now saying is that, since certain views are part of evangelicals' identity, harshly criticizing those views represents discrimination. It's no different than when some feminists say that, since the right to abortion is a critical part of their identity, opposing abortion disrespects them as women. When George Stephanopoulos asked Dobson to justify his charge that Senator Leahy is an anti-Christian bigot, he replied that the Vermont senator "has been in opposition to most of the things that I believe." In other words, disagree with me and you're a racist. Al Sharpton couldn't have said it better.

Identity politics is a powerful thing--a way of short-circuiting debate by claiming that your views aren't merely views; they are an integral part of who you are. And who you are must be respected. But harsh criticism is not disrespect--and to claim it is undermines democratic debate by denying opponents the right to aggressively, even impolitely, disagree. That is what conservatives are doing when they accuse liberals of religious bigotry merely for demanding that the Christian Right defend their viewpoints with facts, not faith. Once upon a time, conservatives knew better. I hope some still do.

Beinart is absolutely right to note that Christian "conservatives" should not equate opposition to the merits of their political and policy views with "anti-Christian bigotry," and that they should avoid "identity politics."  If Christians want to enter the public square, they must expect to be engaged and challenged on the merits. 

Beinart is also right to note (as Michael Perry has), that Christians hoping to persuade others of the merits of their (Christianity-informed) policy positions will often do well to employ a variety of arguments, including not-obviously-theological ones.  But Beinart -- as I read him -- says more than this; he seems to embrace the common-yet-mistaken notion that the rules of a diverse democracy somehow require religious believers to translate their claims into what he calls a "common political language."  Putting aside questions such as, "what is this language?" and "are we sure that, in America, our 'common political language' is not religious?", it seems to me that Christians owe to their fellow citizens -- and this is no small thing! -- not re-packaging, but a good-faith presentation of the reasons that are, for them, persuasive and operative.  The "rules" of a diverse democracy permit such a presentation.

I'd welcome Michael Perry's reactions to the piece.

Rick   

Thursday, November 18, 2004

ISRAEL AS A JEWISH STATE

By Michael Perry

[Thought this would be of interest.]

Sightings  11/18/04

Israel: Demography of the Land
-- Alain Epp Weaver

Ira Rifkin, in a recent Sightings column ("Theology of the Land," November 4), suggests that for "even liberal religious Jews" the State of Israel's "identity as a Jewish state" is "more important than the mere existence of a state called Israel."  Rifkin's insistence on Israel as a Jewish state echoes an increasingly heard refrain.  But the question of the Jewish nature of Israel becomes more complex in light of current demographic trends and should, I believe, be addressed calmly and forthrightly in future Christian-Jewish dialogue.

Haifa University demographer Arnon Soffer has warned that the number of Palestinians between the Jordan River and the Mediterranean Sea (that is, in both Israel and the Occupied Territories, or the boundaries of British Mandate Palestine), will equal the number of Jews in that land by 2010.  With one sovereign state in Mandate Palestine, former Jerusalem deputy mayor Meron Benvenisti has argued that a bi-national reality already exists, one in which the three million Palestinians of the West Bank and the Gaza Strip are denied citizenship.

Israeli politicians from across the political spectrum view this demographic reality with alarm.  Israeli public-opinion researchers Ephraim Yaar and Tamar Hermann have found that "the strong desire for a separation, even a unilateral one, is connected to a fear among the overwhelming majority of the Jewish public regarding the emergence of a de facto binational state."  The fear of an emerging bi-national reality has been put most pointedly by Israeli Labor party leader Avraham Burg.  "I am not afraid of weapons and terrorism," Burg notes, "I am afraid of the day that all of them [Palestinians] will put their weapons down and say 'One man, one vote.'"

To prevent this perceived demographic disaster, Israeli politicians of the center-right support versions of Ariel Sharon's unilateral disengagement plan, in which Israel fences and walls off Palestinian population centers, potentially allowing Palestinians to call the Gaza Strip and 40 percent of the West Bank a "state," if they so choose.  Some on the Israeli left, meanwhile, believe that a two-state solution to the conflict along the lines of the Geneva Initiative, which would leave Palestinians with closer to 95 to 98 percent of the West Bank and control over parts of Jerusalem, is the way not only to achieve peace but to preserve a Jewish demographic majority within Israel.

Nearly all Israeli Jewish politicians concur in rejecting any significant return of Palestinian refugees to homes and properties inside Israel, arguing that this would threaten the Jewish character of Israel.  That the PLO has continued to call (at least on paper) for Palestinian refugees to be allowed to return to their homes and properties has been taken as a sign that the Palestinians reject Israel as a state.  It is not sufficient, the argument goes, to recognize Israel (as the PLO did in the Oslo accords); one must recognize Israel as a Jewish state, its right to maintain a Jewish majority.

Does the Jewishness of Israel thus consist primarily in a majority of Israel's citizens being Jewish?  It is important to remember that the Jewish state envisioned by the United Nations Partition Plan of 1947 (UNGA 181) would have had a 50 percent Palestinian Arab population.  If Zionism meant the creation of a state with a Jewish majority, then, as Israeli historian Benny Morris has argued, the expulsions of Palestinians in 1948 represented, in Morris's view, a tragic necessity.

Even if a two-state solution, as envisioned by the Geneva Initiative, would miraculously be implemented tomorrow, with Palestinians relinquishing the right of return, what of the Palestinian citizens of Israel ("Israeli Arabs")?  Some demographers suggest that if current birth and immigration rates hold steady, Palestinians might make up 50 percent of the population inside Israel proper by 2050.  Would that mean the end of Israel as a Jewish state?

After the horrors of the Shoah, it is understandable that the idea of Israel as a safe haven with a Jewish majority would be so important to many Jews.  But does the land's holiness, which Rifkin rightly insists is so important to traditional and liberal Jews, depend on maintaining and protecting a Jewish majority by any and all means?  Might not a bi-national future also be compatible with the land's holiness, a future in which Palestinians and Israelis alike both sit securely under vine and fig tree (Micah 4:4)?  Such questions, as difficult and sensitive as they may be, may prove unavoidable in future Jewish-Christian discussions.


Alain Epp Weaver (University of Chicago Divinity School, M.Div. '99) is Mennonite Central Committee representative for Palestine, Jordan, and Iraq.

----------

Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

"Mere clusters of cells"

By Rob Vischer

Notre Dame philosophy prof John O'Callaghan shares my reaction to the New York Times editorial on human cloning; he observes that labeling an embryo as a:

"mere cluster of cells" is not a scientific judgment, even if uttered by a scientist, no more so than if a scientist were to look at a painting, Seurat's "A Sunday on La Grande Jatte" for example, and utter the claim "that is a mere cluster of pigments."

We call people like that ignorant, however much specialized training they may have in some field. What we want to know is why it is in fact more than just "a mere cluster of pigments." It stretches the bounds of credulity to imagine praticing scientists doing their jobs in their labs walking around talking about the "mere clusters of cells in my petri dish." In fact, I do not believe many at all would say this. Look at their practice. The very fact that they are in their petri dishes presupposes they are not "mere clusters of cells."

If they were mere clusters of cells, why are they in their petri dish? Why are they so interested in this "mere cluster of cells" and not some other one? Why as a part of good scientific practice do they attempt to use sterile petri dishes in their studies, the sterility of which requires that they eliminate any "mere clusters of cells" from the environment of the petri dish? No. They know that they are studying no mere cluster of cells, but a certain kind of cluster of cells exhibiting a biological unity ordered toward a certain kind of physical development. In their actual scientific practice, they want to know why it is in fact more than just a "mere cluster of cells." One will learn nothing specific about the cloning of human beings by studying a mere cluster of cells that happens to be a labrador embryo, and even less from a "mere cluster of cells" that has no biological unity to it. Indeed, that is why it is even silly to refer to this supposed "mere cluster of cells" as "potential life." It is identifiably a certain kind of life undergoing biological processes of life distinctive of the kind of being it is in the stage of development it is. If it were not such an identifiable kind of life, the scientist would not be studying it.

If someone who happens to be a biologist says that what he is studying is a "mere cluster of cells," he is not speaking or acting as a biologist when he does so. No biologist studies "mere clusters of cells." He is speaking and acting politically. And the history of our culture tells us that when someone starts saying that a living thing is "a mere X" we should watch our wallets, and even more so our backs.

Wednesday, November 17, 2004

Communion and Politicians

By Susan Stabile

Cardinal Theodore McCarrick, who oversees the USCCB Task Force on Catholic Bishops and Catholic Politicians, issued a statement today indicating that the Conference has agreed to take up the matter of Church teaching on the proper disposition for politicians and others to receive communion.  I confess to not being overwhelmingly sympathetic to his complaint about criticisms of the bishops' behavior during the presidential campaign.  To say that "bishops can come to different prudential and pastoral judgments about how to apply our teaching to public policy," is not to say that every public statement made by the various bishops during the campaign is defensible and one can see how the media and the public could have legitimate concern about some of the statements that were made.   

Susan

What Moral Dilemma?

By Rob Vischer

Sometimes it's a bit too easy to pick on the New York Times, but I couldn't let this editorial pass without comment. In urging the UN to reject a proposed comprehensive ban on human cloning, the Times offers the following insight into the debate:

The United States, the Vatican and a slew of developing countries have endorsed a resolution put forth by Costa Rica that would outlaw all cloning, whether for reproductive, therapeutic or research purposes. That is an extreme measure that seeks to snuff out all research on microscopic entities that religious conservatives consider potential babies but scientists consider mere clusters of cells in a laboratory dish.

Under these terms, what right-thinking person could possibly object to the manufacture of embryos for research purposes? After all, embryos are simply "microscopic entities." True, some (crazed) "religious conservatives" consider them "potential babies." (How exactly are embryos not potential babies?) Thankfully, though, "scientists" (that's right, every single one of them) know that these entities are "mere clusters of cells in a laboratory dish." No worries. Don't let the Bush Administration, the Pope, and the "slew of developing" (i.e., backward) countries fool you. Listen to the Times, and let your moral dilemmas melt away . . .

Rob

PARENTS v. THE STATE

By Michael Perry

[This notice appeared in the online Chronicle of High Education this morning.]

A glance at the November 11 issue of
"The New England Journal of Medicine":
An exception to parental rights in health care

Parents generally have the right to make medical decisions for
their children, but a recent ruling by the Texas Supreme Court
provides a notable exception, says George J. Annas, a professor
of health law at Boston University.

"In the absence of child neglect, parents have the right to give
or withhold consent for medical treatment for their children,"
he writes, but in the case of "Miller v. HCA," the court ruled
that physicians may treat extremely premature newborns without
the parents' consent.

The case concerned Sidney Miller, who in 1990 was born after
only 23 weeks of gestation, barely half the normal term of 40
weeks. Her parents requested before the birth that "no heroic
measures" be taken to save her life, Mr. Annas writes, but the
hospital insisted that it had to wait until she was born and to
allow a neonatologist to decide whether to intervene.

The physician successfully resuscitated the infant, but a few
days later Sidney suffered a brain hemorrhage that left her
severely impaired, both mentally and physically. The Millers
sought damages from the hospital for refusing to respect their
wishes, and a lower court ruled in their favor. But the verdict
was reversed on appeal, and that decision was upheld by the
Texas Supreme Court in September 2003.

"The court concluded that the circumstances of extreme
prematurity were unique because a decision about resuscitation
could not reasonably be made before birth," Mr. Annas writes.

Although Mr. Annas finds the ruling reasonable, he says it is
also troubling because it "implies that life is always
preferable to death for a newborn and thus could be interpreted
in the future to support the neonatologist who always
resuscitates newborns, no matter how premature or how unlikely
their survival is without severe disabilities."

The article, "Extremely Preterm Birth and Parental Authority to
Refuse Treatment -- The Case of Sidney Miller," is online for
subscribers and for purchase here.

RELIGION IN POLITICS

By Michael Perry

I appreciate Rick's mention, in his posting last night, of my book Under God?  Religious Faith and Liberal Democracy (Cambridge, 2003).  Let me seize the opportunity to say that in my judgment, the best book to date on the subject--the book that comes as close to achieving closure on the relevant issues as any book could--is my friend Chistopher Eberle's Religious Convictions in Liberal Politics (Cambridge, 2002).  No one interested in the "religion in politics" controversy--a group that I now know includes Eugene Volokh--should fail to read Chris's book.  By the way, Chris is spending this year at Notre Dame, writing his second book.  Those of you at Notre Dame should track Chris down and say hello.

Michael P.

Volokh on Religion and "Reasonable" Public Arguments

By Rick Garnett

My friend (and UCLA law professor) Eugene Volokh has two very thoughtful posts (here and here) up about the use of "religious" arguments in the "political" arena, and responding to the (often advanced) argument that only "reasonable" arguments and justifications are legitimate in political debate.  Much of what Eugene has to say is, I think, consonant with the line of argument in Michael Perry's recent book, "Under God."

Rick

Tuesday, November 16, 2004

A "BORN AGAIN" DEMOCRATIC PARTY?

By Michael Perry

New York Times
November 17, 2004

Some Democrats Believe the Party Should Get Religion

By DAVID D. KIRKPATRICK

Bested by a Republican campaign emphasizing Christian faith, some Democrats are scrambling to shake off their secular image, stepping up efforts to organize the "religious left" and debating changes to how they approach the cultural flashpoints of same-sex marriage and abortion.

Some call the election a warning. "You can't have everybody who goes to church vote Republican; you just can't," Al From, founder of the Democratic Leadership Council, said last week at a forum on the election.

Religious traditionalists including Dr. Richard Land, president of the Ethics and Religious Liberty Commission of the conservative Southern Baptist Convention, and Jim Wallis of the liberal evangelical group Sojourners say Democratic officials are calling them for advice on reaching conservative Christians. And they and some other theologically orthodox supporters of Mr. Bush say it may not take much for Democrats to make inroads among their constituency, if the party demonstrates a greater friendliness to religious beliefs and even modestly softens its support for abortion rights.

"It would not be hard," said the Rev. Richard John Neuhaus, editor of the journal First Things and a conservative Catholic who has advised Mr. Bush on how to handle the issue of abortion.

But Democrats disagree about how to establish the party's spiritual credentials. Some play down the need for changes, saying poorly framed surveys of voters leaving polls are overstating the impact of conservative Christian voters. Others argue that Democrats need to rephrase their positions in more moral and religious language. And an emboldened group of Democratic partisans and sympathetic religious leaders warn that Mr. Bush has beaten Democrats to the middle on social issues like abortion that resonate with religious traditionalists, arguing that the party should publicly welcome opponents of abortion into its ranks and perhaps even bend in its opposition to certain abortion restrictions.

In an interview, Mr. From pointed out that Republicans invited officials who disagreed with the party's position on abortion rights, like Gov. Arnold Schwarzenegger of California and Rudolph W. Giuliani, the former mayor of New York, to speak at their national convention. Democrats should do likewise, he argued.

"I want to win some people who are pro-life, because they probably agree with us on a lot of other things," Mr. From said.

Even that, however, would shock some Democrats. No prominent opponent of abortion has come anywhere near the podium of a Democratic convention since 1992, when abortion rights groups blocked a speech on the subject by Robert P. Casey, the governor of Pennsylvania and an observant Catholic.

"Our platform and the grass-roots strength of the party is pro-choice," said Elizabeth Cavendish, interim president of Naral Pro-Choice America. The party needs more religious language, Ms. Cavendish said, but not new positions.

Many Democrats agree. Citing statistics showing that the incidence of abortion fell under President Bill Clinton and rose under President Bush, they argue that the party can reach religious voters without flinching from its current stance on abortion rights by shifting the debate from the legality to the frequency of the procedure - a reprise of Mr. Clinton's formulation that abortion should be "safe, legal and rare."

"We would like to see fewer abortions and we want our children to learn good values," said Representative Rosa DeLauro, Democrat of Connecticut, a Catholic who has led her party's efforts to reach religious voters and was chairwoman of its 2004 platform committee.

Democrats need to make the case that health care, jobs and sex education can reduce the number of abortion procedures, even without making them illegal, Ms. DeLauro said. At the same time, she said, they need to emphasize the religious imperatives behind "pushing for real health care reform, reluctance before war and alternatives to abortion, such as adoption," as she put it in a letter to Cardinal Theodore E. McCarrick of Washington signed by dozens of Catholics in Congress in the spring.

"An overwhelming number of Democrats are people of faith,'' Ms. DeLauro said. "We need to be more explicit and more public about our convictions and our beliefs."

Democratic partisans are also stepping up efforts begun in the last months of the campaign to rally the churches and religious groups already inclined to take their side. Weekly campaign-season conference calls of progressive Christian leaders have become a forum to plot strategy and coordinate actions, just as they say conservatives have done.

When Mr. Bush named the White House counsel, Alberto R. Gonzales, as his choice for attorney general, for example, liberal members of the Christian clergy immediately convened to plan a statement criticizing Mr. Gonzales for writing memorandums that appeared to support the use of torture, said Tom Perriello of Res Publica, a group that helps organize the calls.

Mr. Perriello said many of the religious leaders involved were also pushing the Democrats to be more assertive in fighting poverty and promoting "social justice" but also to soften their stance on abortion. "There is an interest in finding a middle way," he said. "It predates the election year, but there is a little more willingness to listen to it now."

In the election's aftermath, some Democrats also say their party needs to do more than talk about religion to win more churchgoer votes. They argue that Mr. Bush outflanked Senator John Kerry with carefully drawn positions on abortion and same-sex marriage. Even as Mr. Bush supported an amendment to the Constitution to ban same-sex marriage, he also emphasized tolerance, breaking with his most conservative Christian supporters to repeatedly say he favored allowing states to recognize same-sex couples in other ways, like civil unions.

Mr. Kerry's official position differed only on the need for amending the Constitution, but he seldom brought up the subject. Although few Democrats are ready to give in on the proposed federal amendment, many Democrats and liberal Christians say privately that they may need to distance themselves more forcefully from the idea of same-sex marriage, standing instead near Mr. Bush in support of civil unions.

"Let's not call it marriage," said Mr. Wallis of Sojourners, who addressed religious outreach lunch at the Democratic convention this year. "The culture is not ready for that. The principle is legal protection for same-sex couples. It would take the issue away and that issue wouldn't win or lose elections anymore."

But it is Mr. Bush's careful stance on abortion that has generated the most soul searching. Although he ended federal financing for international groups that provide abortions, he has never explicitly committed to opposing the main abortion rights court precedents. Instead, he refers to the less explicit notion of a "culture of life." And he counts as a major achievement the ban on the type of procedure its opponents call partial-birth abortion, which passed with bipartisan support.

"He lets himself take credit for a hard-line stance on abortion that he has never really endorsed," Mr. Wallis said, arguing that Democrats could "change the whole landscape" by moderating their own position.

Representative Tim Ryan, Democrat of Ohio, argued that in the pivotal Midwest the appearance of inflexibility on abortion rights was a heavy burden on Democratic candidates. Like most Democrats, Mr. Ryan said he supported the court precedents establishing abortion rights, but he argued that the party should relax its opposition to the partial-birth abortion ban, parental notification laws and the bill making it a second crime to harm a fetus when harming a pregnant woman.

"In middle America, how do you argue that killing a pregnant woman is not a double homicide?" he said.

It might take only a few alterations for Democrats to start gaining traction with orthodox Christians, Father Neuhaus of First Things said.

"To be perfectly cynical about it,'' Father Neuhaus said, "what would a leading Democrat, even a Hillary Clinton, have to do? She could come out against partial-birth abortion, she could come out for parental notification. She could begin to represent herself as moderately pro-choice, maybe even with some linguistic sleight of hand, moderately pro-life."

Pollsters say Democrats might well find fertile ground among theological conservatives, if the party could get around those divisive social issues and its secular reputation.

Many conservative Christians who vote Republican because of their views on abortion and same-sex marriage are working class or middle class, and they often hold liberal views on economics, social welfare and the environment, said John Green, a political scientist at the University of Akron who conducts polls on religion and politics. But to reach religious voters, Mr. Green said, the Democrats "have their work cut out for them.''

Some Democrats worry that the party might bend too far to please religious voters. Representative Jerrold Nadler of New York, a Democrat and a Jew, argued that there was no evidence that more people voted "based on faith" this year than four years ago. If Mr. Bush renews his popular calls for federal financing of social services that hired on the basis of religion, Mr. Nadler contended, Democrats still need to oppose it. "If you use federal funding, you can't discriminate," he said. "We can't compromise on that."

Wolfe, Brooks, MacIntyre, and Leff

By Rick Garnett

In today's New York Times, David Brooks reviews Tom Wolfe's latest novel, "I Am Charlotte Simmons," which is about "a young woman who leaves Sparta, a small town in North Carolina, and enters an elite university. She finds all the rules of life there are dissolved: the rules of courtship, the rules of decorum and polite conversation."  Along the way, Brooks observes: 

The social rules have dissolved because the morality that used to undergird them dissolved long ago. Wolfe sprinkles his book with observations about how the word "immoral" now seems obsolete, about how sophisticated people now reject the idea of absolute evil, about a hypermaterialistic neuroscience professor who can use the word "soul" only when it is in quotation marks.

Wolfe describes a society in which we still have vague notions about good and bad, virtue and vice, but the moral substructure that fits all those concepts together has been washed away.

This observation echoes, in a way, the powerful first chapter ("A Disquieting Suggestion") in Alasdair MacIntyre's "After Virtue," in which MacIntyre identified what he regarded as a "moral catastrophe", namely, that the "language of morality is in . . . [a] state of grave disorder," in that, "while "[w]e possess indeed, similacra of morality [and] continue to use many of the key expressions[,]" "we have -- very largely, if not entirely -- lost our comprehension, both theoretical and practical, or morality."  And, turning to this blog's legal-theory focus, both Brooks and MacIntyre would seem to underscore the urgency of Arthur Leff's 1979 essay, "Unspeakable Ethics, Unnatural Law":

All I can say is this: it looks as if we are all we have. Given what we know about ourselves and each other, this is an extraordinarily unappetizing prospect; looking around the world, it appears that if all men are brothers, the ruling model is Cain and Abel. Neither reason, nor love, nor even terror, seems to have worked to make us "good," and worse than that, there is no reason why anything should. Only if ethics were something unspeakable by us, could law be unnatural, and therefore unchallengeable. As things now stand, everything is up for grabs. Nevertheless: Napalming babies is bad. Starving the poor is wicked. Buying and selling each other is depraved. Those who stood up to and died resisting Hitler, Stalin, Amin, and Pol Pot-- and General Custer too--have earned salvation. Those who acquiesced deserve to be damned.  There is in the world such a thing as evil. [All together now:] Sez who? God help us.

Rick

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