Sunday, January 29, 2006
Sigh (from the Times (UK)).
A UNIVERSITY Christian Union has been suspended and had its bank account frozen after refusing to open its membership to people of all religions.
The Christian Union, an evangelical student organisation, has instructed lawyers and is threatening court proceedings against the Birmingham Guild of Students.
The point came up often in the post-Kelo commentary that local governments were likely to regard churches as attractive candidates for taking-and-redevelopment. This recent New York Times story, "Humble Church is at the Center of Debate on Eminent Domain," suggests that the commentariat was on to something:
With bulldozers churning up the earth at the front door, the small Centennial Baptist Church in this struggling industrial hub west of Tulsa seems about to fall to the wrecker.
But the construction is just roadwork, for now. And that is all it will ever be if the congregation has its way.
"The Lord didn't send me here to build a minimall," said the longtime pastor, the Rev. Roosevelt Gildon.
In what a local newspaper called "a battle between God Almighty and the almighty dollar," Sand Springs is moving ahead with a redevelopment plan to clear the church and other occupants from the rundown district near downtown to make way for superstores like the Home Depot.
Professor Dawn Johnson -- an expert on, among other things, the law relating to abortion -- published a few days ago on Slate an essay called "The Outer Shell: The Hollowing Out of Roe." In Johnson's view, "[t]he Senate's focus on the formal status of Roe, while understandable, masks the extent to which the court has already gutted the right to choose and what the confirmation of Alito most immediately would mean for reproductive liberty." Commenting on the "literally hundreds of abortion restrictions" that, it is reported, state governments have enacted in recent years, she warns:
Abortion restrictions often sound superficially reasonable and appealing: They include such benign-sounding requirements as waiting periods, "informed consent," special physical specifications for buildings in which abortions are performed, and special hospital admitting privileges for the physicians who perform them. They are designed to sound reasonable while also limiting the number of abortions performed, ultimately as completely as would a criminal ban.
I wonder if "restrictions" like waiting periods, informed consent, parental notice, etc., "sound reasonable" because, well, they are?
[Vince Rougeau, who is in London this semester, saw this article and thought MOJ-readers would be interested.]
The Observer [London]
Sunday January 29, 2006
Women demand tougher laws to curb abortions
Denis Campbell and Gaby Hinsliff
A majority of women in Britain want the abortion laws to be tightened to make it harder, or impossible, for them to terminate a pregnancy.
Evidence of a widespread public demand for the government to further restrict women's right to have an abortion is revealed in a remarkable Observer opinion poll. The findings have reignited the highly-charged debate on abortion, and increased the pressure on Tony Blair to review the current time limits.
The survey by MORI shows that 47 per cent of women believe the legal limit for an abortion should be cut from its present 24 weeks, and another 10 per cent want the practice outlawed altogether. Among the population overall, reducing the upper limit was the preferred option backed by the largest proportion of respondents, 42 per cent, made up of a 36-47 per cent split among men and women.
Only one person in three agreed that 'the current time limit is about right', with slightly fewer women (31 per cent) than men (35 per cent) saying that. Just 2 per cent of women and 5 per cent of men think the last possible date after which a woman can end a pregnancy should be increased from 24 weeks.
The leader of the 4.1 million Catholics in England and Wales, Cardinal Cormac Murphy O'Connor, called on politicians last night to heed the evidence of a growing demand for a rethink on abortion policy, to include The Observer's findings. 'There has been a moral awakening over the last few years about abortion; the British public have been undergoing a reality check,' said his spokesman, Dr Austen Ivereigh. 'The Cardinal sees in this moral awakening a growing unease with, and erosion of, the idea of abortion as simply a woman's right.'
Increased awareness of the realities of abortion, and the impact of ultrasound images of a 23-week-old foetus smiling and grimacing, have made people change their views, said Ivereigh. The latter 'very dramatically showed that what had been depersonalised in many people's minds as a foetus was clearly seen to be a baby, a human being in formation, and that has come as a shock to many people', he added.
Abortion became a key issue in last year's general election campaign when Michael Howard, then the Conservative leader, said he wanted to see the maximum time limit cut to 20 weeks.
Former Liberal leader David Steel, the architect of the pioneering 1967 Abortion Act which made abortions legal for the first time in Britain, wants the upper limit reduced to 22 weeks.
The limit was originally set in 1967 at 28 weeks, because that was then taken to be the age at which a foetus would not be 'viable', but it was reduced to 24 weeks in 1990. Around 200,000 women a year undergo an abortion in Britain, although between 85 and 90 per cent occur within 12 weeks and only about 1.5 per cent after 20 weeks. Abortion is still illegal in Northern Ireland.
David Cameron, Howard's successor, backs a new limit of between 20 and 22 weeks. 'He thinks because of the advances in medical science there's now a case for it being lowered, although not dramatically. He would support it being reduced. That is his personal view,' said his spokesman.
Moves to reduce the time limit are now beginning to win the support of liberal-minded MPs who support the right to abortion. Dr Evan Harris, the Liberal Democrat MP and a former GP, called for an in-depth parliamentary inquiry to examine the scientific evidence about the survival rates of babies born at under 24 weeks, and then recommend any necessary changes to the law. 'The question has been raised about whether we are going to base the limit on viability - that was the basis under the existing law - and if it's on viability then viability is subject to change based on medical advances,' he said.
'The longer we don't debate this, the less confidence the public will have that Parliament is doing its job which is reviewing and keeping in mind how scientific advances impact on public policy.'
Abortion law has always been altered through private members' bills tabled by backbenchers rather than by government in the past, with MPs voting according to their conscience. However the tacit support of the government is vital to get private members' bills through, making the views of the Prime Minister and Health Secretary crucial.
Amid the debate last year, prompted by the images of unborn babies in the womb, Blair indicated that the government could be prepared to review the limits on abortion law. The then Health Secretary, John Reid, personally supports a lower time limit.
However, Patricia Hewitt, the current Health Secretary, seemed yesterday to rule out any reduction: 'I think it is very difficult for a woman contemplating a late termination and they need to be given very clear advice and support.'
Toni Belfield of the Family Planning Association, which opposes any reduction, said: 'The argument about medical advances misses the point. There needs to be access to late abortion after 20 weeks because a woman may not find out she is pregnant until 18 or 19 weeks, or be in a non-consensual relationship, or be told about a foetal abnormality.'
Julia Millington, of the Pro-Life Alliance of anti-abortion groups, said the findings were 'very encouraging'.
Ipsos MORI interviewed 1,790 people aged 16 to 64 by online questionnaire between 6 and 10 January.
_______________
mp
Over at Professor Balkin's blog, Ian Ayres and Jennifer Gerarda Brown have a post up called "Judge Alito, the Boy Scouts, and Associational Fraud." They comment on the questions asked, and answers given, during Judge Alito's confirmation hearings concerning "Concerned Alumni of Princeton" and articles in the CAP's magazine that "expressed sexist and racist views of Princeton’s changing demographics." And, they suggest that just as Judge Alito -- "like the Inspector in Casablanca" -- was "shocked to learn of CAP's . . . racist and sexist policies," many were "shocked to learn" -- after the Court's decision in Boy Scouts of America v. Dale -- that "their beloved Boy Scouts had taken an anti-gay policy."
They said, as Judge Alito says now, “that certainly was not any part of my thinking in whatever I did in relation to this group.” They regretted the time, money, and talent they had devoted to the Boy Scouts over the years. Steven Spielberg resigned from the national advisory board of Boy Scouts of America.
This sad, “if I’d only known” reaction from both Alito and former Boy Scouts suggests that organization members can be victims of a kind of associational fraud when they are induced to join a group without being fully informed of the group’s discriminatory policies.
Having identified this phenomenon -- i.e., "associational fraud" -- Ayres and Brown continue:
How could we prevent such associational fraud? We can all start by demanding to know more about the policies of organizations before we join them.
But the law can help. Government has a constitutional interest in promoting informed association. A state like New Jersey might pass an “Informed Association” statute that would require organizations to disclose discriminatory policies to prospective members before they are allowed to join. The statute might even require that members sign a statement acknowledging that they have been fully informed of the organization’s policies and still choose to join.
These written acknowledgements would not need to be made public. An organization with discriminatory policies might only be asked to retain evidence that its prospective members had signed the required acknowledgements.
Many people couldn’t bring themselves to sign a statement acknowledging that they were choosing to associate with a discriminatory group.
But at least part of this predictable decline in membership should be seen as an enhancement in association freedom. The freedom of association also means the freedom not to associate. And associational decisions are impaired if people are duped into joining.
Put another way, the law must give meaning to associational silence. If a group remains silent, what does this silence signal: that the group implicitly represents that it respects the state’s non-discrimination norm, that the group might not, or that group does not respect the norm? Any potential legal inference burdens some members’ associational rights, in that it forces either the members or the organization to speak to assure that their associational preferences are met.Clearly, government cannot and should not force associations to clarify every position they hold. But anti-discrimination laws of general application (like New Jersey’s Human Rights Statute) are fundamental state policies. It’s reasonable for a state to insist that organizations taking contrary positions disclose their true colors to potential members before people join up.
The Ayres / Brown proposal is intriguing and provocative, but is it really one that we'd want to endorse? For starters, I'm not sure about the premise that "[g]overnment has a constitutional interest in promoting informed association," if "constitutional interest" means "an interest that can justify a regulation, like the ones proposed, that burdens individuals' expressive-association rights or the rights of expressive associations." I suppose it would be entirely legitimate to apply generally applicable anti-fraud laws to "expressive associations," as to everyone else, but I'm not so sure about the idea that government may, in effect, compel speech by associations -- that is, require them to state their positions on matters thought by the government to implicate "fundamental state policies" in order to make sure individuals' decisions-to-associate-expressively are, in the government's view, "fully informed."
Now, it seems right to say that "[t]he freedom of association also means the freedom not to associate. And associational decisions are impaired if people are duped into joining." The trick, I guess, is distinguishing "duping" from "not stating explicitly or anticipating accurately every position that the association will take, going forward, particularly in response to coercive regulation."
As for the writers' final claim -- i.e., that "[i]t’s reasonable for a state to insist that organizations taking contrary positions [to fundamental state policies] disclose their true colors to potential members before people join up": It is not (yet) clear to me that an association should be required to "disclose [its] true colors", if this means "spell out explicitly, with the clarity demanded by the government, every position they do profess, or will profess to hold in future litigation."
I suppose a lot of this comes down to what we think the "freedom of association" is and is for. My own view, which might account for some of my hesitation about the Ayres / Brown proposal, is one that tends to emphasize the "structural" role of associations, rather than their function as vehicles for individuals' expression. In any event, I'd appreciate others' reactions to, and thoughts about, their post.
Saturday, January 28, 2006
My former student, Bill Whitman, is running for Congress, as a Democrat, in Tennessee's the Ninth District. (Rep. Harold Ford is vacating the seat, to run for Congress). Here is his statement, taken from his web site, describing his pro-life stance:
I follow the "Consistent Life Ethic" approach to life issues. The Consistent Life Ethic calls us to defend and protect all persons who are threatened or marginalized by forces such as abortion, the death penalty, economic injustice, euthanasia, violence and war. It requires us to a build a culture that affirms and defends life from conception to death.
I am opposed to abortion. Protecting the sanctity of life is one of my first priorities as a legislator. Being pro-life and being a Democrat are not mutually exclusive. As Democrats, our first and most important principle should be to fight for those who cannot fight for themselves. This charge does not exclude unborn children. There are at least ten pro-life Democrats in Congress, including one from Tennessee. Democratic leaders are rethinking their strict adherence to the pro-choice agenda.
Memphis is a great city for many reasons, not the least of which is the strong moral and religious convictions of our citizens. Virtually all of our religious institutions teach us that life begins in the womb, as does biology. Therefore, we must protect unborn children who cannot defend themselves.
Protecting unborn children does not just mean opposing abortion. We must ensure comprehensive health care to pregnant women; we must provide resources to parents who experience unplanned pregnancies; we must create a culture that welcomes children; and we must encourage adoption.
Other related issues have surfaced recently in Congress. My positions: I oppose partial-birth abortion; I support restricting access to abortions in federally-funded hospitals; I believe that religious-affiliated hospitals should not be required to perform abortions; and I will defend the free-speech rights of all. Furthermore, I am in favor of a constitutional amendment defining the right to privacy, which excludes the right to an abortion.
And, here is what Bill has to say about capital punishment:
I am opposed to capital punishment, and will work to abolish this practice with respect to federal crimes.
Capital punishment should be abolished for several reasons. First, there are extreme racial disparities in the application of the federal death penalty. Second, there always exists the possibility that we will execute innocent persons. Furthermore, the death penalty encourages us as a society to resort to violence to solve our most difficult problems.
As many religious leaders have implored, we cannot teach that killing is wrong by killing. As a country, we have the capability to punish criminals with life imprisonment without parole, and this is how we should punish the most heinous crimes. We need to work toward a more just society by ending the death penalty.
If elected, I will support a bill to end the federal death penalty. I will work tirelessly to persuade this community to abandon the use of the death penalty.
The Democratic Party's nominee will almost certainly win the seat, and so those of us who might be reluctant to support even a pro-life Democrat, because of (what we perceive to be) the downsides of tipping the House to the Democrats, might want to consider supporting financially Bill's campaign. Bill's campaign strikes me as a powerful witness.
It is interesting to contrast Bill's straightforward pro-life position with those of Virginia's newly elected governor, Tim Kaine. Kaine is a practicing Catholic, and was often described, during the raise, as a pro-life Democrat. Kaine opposes capital punishment -- and worked actively against it as an attorney -- but told Virginia's voters that (quoting CNN) "his moral objections to capital punishment are rooted in his Roman Catholic faith and . . . [pledged] to carry out death sentences 'because it's the law.'" And, on abortion, Kaine's position was:
I have a faith-based opposition to abortion. As governor, I will work in good faith to reduce abortions by:
We should reduce abortion in this manner, rather than by criminalizing women and doctors.
Too often politicians are interested in scoring political points, rather than in reducing the number of abortions. Many of the legislative proposals introduced in the General Assembly, like the ones to require unnecessary building standards for doctor's offices that perform abortions, are just political grandstanding. They encourage division and lawsuits rather than contributing to the goal of reducing abortions.
The Feast of St. Thomas Aquinas (Jan. 28) certainly should not go unnoticed on this blog. Here's a link to a painting that might be appropriate for the occasion.
Over at the First Things blog, Professor Hadley Arkes has a long post (scroll down a bit) on the Court's recent decision in Oregon v. Gonzales. He addresses, among other things, the disagreement between Justices Kennedy and Scalia on the question whether (and how one should decide whether) assisted suicide is a "legitimate" medical purpose. As Professor Solum would put it, here's a taste:
Our libertarian friends have shown an indecorous enthusiasm for this decision on the case from Oregon. It is not, in many cases, because they welcome the involvement of doctors in suicide, but because of their attachment to federalism. I share the attachment to federalism, but we run the risk there of replicating Justice Kennedy’s mistake on the large question. When we talk about the regulation of commerce or anything else, we may easily overlook the fact that the regulation of commerce cannot be detached from a sense of what is rightful or wrongful commerce.
As Scalia has recognized, the regulation of commerce encompassed, quite early, the regulation of lottery tickets, and in later years, the barring of prostitution, as the Congress has been drawn in persistently to mark off the boundaries of rightful and wrongful commerce. We’ll save for another day the tangled question of federalism; I’d simply post a caution that the libertarians are headed on a path of incoherence if they think that federalism offers a way of putting aside the moral questions that vex our politics.
Still, what has not been fully appreciated by the votaries of federalism is the way in which this decision by the Court cannot be cabined in Oregon. The scheme offered to us in the name of federalism asks us to incorporate the view that assisted suicide is just another, tenable view about the proper ends of doctors and medicine. Justice Kennedy plants the premise when he remarks that the Attorney General had sought to bar a policy in Oregon merely “because it may be inconsistent with one reasonable understanding of medical practice.”
The aversion to self-killing or self-murder, the enduring concern about doctors using their powers to end life—all of that is simply diminished now as “one reasonable understanding of medical practice,” no more right or wrong than anything else. To incorporate that understanding at the top of the State, in the national government, is to do nothing less than to erode the conviction that has firmed up the laws for the protection of life at the center and the periphery in this country. If the assistance of suicide is regarded as just another “reasonable understanding of medical practice,” why should that view of things not begin to seep into parts of the federal establishment? Why should it not come to affect the understandings that prevail in military hospitals or in divisions of the National Institutes of Health?
This post, over at Professor Althouse's (excellent) blog, is well worth a read, particularly for "Daily Show" and "Colbert Report" watchers. She reproduces (and comments on) this exchange, between Steve Colbert and Terry Gross (of "Fresh Air"):
GROSS: Now you grew up in a family with--What?--11 children?
Mr. COLBERT: Yeah, I'm one of 11 kids. I'm the youngest.
GROSS: And was it a religious family? You say you go to church and...
Mr. COLBERT: Oh, absolutely.
GROSS: Yeah.
Mr. COLBERT: We're, you know, very devout and, you know, I still go to church and, you know, my children are being raised in the Catholic Church. And I was actually my daughters' catechist last year for First Communion, which was a great opportunity to speak very simply and plainly about your faith without anybody saying, `Yeah, but do you believe that stuff?' which happens a lot in what I do.
GROSS: Can I ask you a kind of serious question about faith?
Mr. COLBERT: I've been turning all of your funny questions into serious things for an hour or so. I don't see why you can't do the same to me.
GROSS: In the sketch we heard earlier from "This Week In God," you talked about the Christian pharmacist who refused to fill a prescription for birth control.
Mr. COLBERT: Right.
GROSS: Now the Catholic Church opposes birth control, which...
Mr. COLBERT: They do.
GROSS: ...I presume you do not and...
Mr. COLBERT: Presume away.
GROSS: ...so how do you deal with contradictions between, like, the church and the way you live your life, which is something that a lot of people in the Catholic Church have to deal with?
Mr. COLBERT: Well, sure. You know, that's the hallmark of an American Catholic, is the individuation of America and the homogenation of the church; homogenation in terms of dogma. I love my church and I don't think that it actually makes zombies or unquestioning people. I think it's actually a church that values intellectualism, but certainly, it can become very dogmatically rigid.
Somebody once asked me, `How do you be a father'--'cause I'm a father of three children--`and be anti-authoritarian?' And I said, `Well, that's not nearly as hard as being anti-authoritarian and being a Roman Catholic,' you know? That's really patting your head and rubbing your belly at the same time. I don't know. You know, I don't believe that I can't disagree with my church and I'll leave it at that.
It seems to me that "anti-authoritarian" needs to be unpacked a bit. I mean, it is hard to see how a Catholic, a father, or anyone else, can really be "anti-authority" in any kind of across-the-board way. But, I guess I don't immediately see the conflict between being Catholic and being "anti-authoritarian" in the sense that Colbert is (or seems to me to be) "anti-authoritarian" -- i.e., being irreverent, being willing to puncture myths, platitudes, and pieties, being suspicious of power and "political correctness", etc.
UPDATE: Cathy Kaveny kindly called my attention to this piece, by Celia Wren, in the latest Commonweal, about Colbert, his show, and the Faith. While I suspect that Ms. Wren and I might disagree about the extent to which Colbert actually shows "the sheer inanity of some right-wing beliefs" -- as opposed to the inanity of beliefs that some people imagine conservatives hold -- I think the essay is a good complement to the Althouse post.
This is from the January 26 issue of The Tablet [London]. Just as the Church was once wrong about the the nature of the solar system, it is now wrong about the nature of homosexuality. I wonder what some future historian will make of the parallels? By the way, the esteemed Ernan McMullin, editor of the book under review, is an Irish priest and longtime member of Notre Dame's Department of Philosophy.
The Church and Galileo
Ed. Ernan McMullin
University of Notre Dame Press, £23..50
Tablet bookshop price £21.60.
In 1633, the Holy Office found Galileo to be “vehemently suspected of heresy, that is to say, of having held and believed that the Sun is the centre of the world and immoveable”, and this despite a formal warning in 1616 that he must do no such thing. On his knees before the cardinals, Galileo swore an oath in which he abjured this and other errors and heresies; he promised to do nothing in future to give rise to such a suspicion. The penalty for breaking this oath would be death by burning.
The wound the Church thereby inflicted on herself has done incalculable harm. No matter the glorious history of Jesuit astronomers down the centuries; no matter that the papal residence in Castel Gandolfo has two telescopic domes on the roof; no matter that the Vatican Observatory now boasts a major telescope in Arizona: the treatment of Galileo is cited day by day as proof that the Church fears science.
The Galileo Affair, as it has come to be known, took place at a pivotal moment in the histories of both astronomy and of the Church. The task of mathematical astronomers since antiquity had been to save the appearances, to devise geometrical models for the planetary motions that would allow the calculation of accurate tables. That a model – Ptolemy’s or Copernicus’ – worked well for this purpose was no reason for supposing that it corresponded to the underlying reality. But Kepler in 1609 set astronomy on a new path, from the how to the why, from saving the appearances to discerning the physical truth about the heavens. This led in 1687 to Newton’s Principia, after which it would be foolish to maintain that the massive Sun orbited the tiny Earth.
Galileo wished his Church to be in the forefront of the new movement, but his judges understood nothing of this. What they did understand was that when Christ was quoted as saying, “This is my Body”, Protestant reformers had chosen not to take his words at face value. This was no time for invoking the Augustinian doctrine of “accommodation”, that the sacred author was using words accommodated to the understanding of his readers; and yet this was exactly what Galileo was doing when he argued that, despite Joshua’s report that God made the Sun stand still for a very special purpose, in fact it never did anything else but stand still.
The episode is hugely complex, and never a year passes without yet more books on the subject. It was therefore greatly to the credit of John Paul II in 1979 that he asked for a commission to explore the affair in depth, in order to lay the matter to rest by arriving at “a loyal recognition of wrongs from whatever side they come”.
The project was ill-fated from the start. It seems that the members of the resulting Galileo Commission were chosen for the positions they held, not for their knowledge of Galileo (the only member with some expertise in the history of astronomy being Fr George Coyne SJ, director of the Vatican Observatory). One member was soon appointed to a major see and so attended only the first meeting. Others suffered ill-health, among them the president, and it is probably because of his indisposition that after 1983 the commission never once met. A number of historical studies were published under the auspices of an editorial board that included this reviewer, but otherwise the work languished.
Eventually the authorities thought it time to bring the project to some sort of conclusion. Confronted by a subject of such immense complexity, even a well-informed and hard-working commission might have struggled to reach an agreed verdict. It was Cardinal Paul Poupard who drew the short straw. On 31 October 1992, he read out at a Vatican ceremony what purported to be the commission’s findings. They were in fact no such thing: Fr Coyne, for one, had not been consulted and knew nothing of what Poupard was to say.
The “findings” laid the blame not on any of the Church authorities involved but on (unnamed) theologians. According to Poupard, when the motion of the Earth was scientifically proved, which he bizarrely dates to 1741, the Church quickly responded by authorising an edition of Galileo’s opera omnia, and by removing from the Index works advocating the heliocentric theory. In fact, the 1744 edition of the opera had to omit Galileo’s brilliant work on the interpretation of Scripture, now recognised as a classic statement of the Church’s position; and his Dialogo, the book for which he was condemned, could be included only if it was prefaced with both the Holy Office decree and Galileo’s oath of recantation, and further doctored to make the work appear hypothetical. And when the 1757 edition of the Index appeared, Copernicus’s De revolutionibus, Kepler’s Epitome and Galileo’s Dialogo were there, just as before. So much for the Vatican’s eighteenth-century response to the advance of science, and so much for the disinterested scholarship of the twentieth-century “findings”.
Historians worldwide were dismayed by Cardinal Poupard’s address, and by the speech written for the Pope to read in response. Eventually, a conference of Galileo scholars was held at Notre Dame University in 2002. The resulting volume, edited by Fr Ernan McMullin, a leading scholar in the field, must serve in place of the findings of the Galileo Commission. It is a splendid work. Many of the chapters are definitive of our present understanding of these very complex issues, and Fr McMullin’s summary of the affair is itself worth the cover price. All but one of the contributions deal with times past, but Fr Coyne tells the depressing story of the official Commission as far as he has been able to determine it. He concludes: “The picture given in the discourses of October 31, 1992, does not stand up to historical scrutiny … In fact it was the Congregation of the Index, the Congregation of the Holy Office, and Paul V who enacted a hasty decree in 1616, and the Congregation of the Holy Office and Urban VIII who proclaimed a hasty condemnation of Galileo in 1633.”
When the Galileo Commission was constituted in 1981, Poupard was named head of one section and Coyne head of another. They have come to very different conclusions. I, and most historians, believe the evidence supports Coyne. If so, the Vatican has lessons to learn from the Galileo Affair concerning the proper exercise of authority in the Church today.
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