Mirror of Justice

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

Tuesday, March 7, 2006

Going to be in New York City on April 4?

If so, come on over to Brooklyn to say hello, and to learn why, although capital punishment is (contrary to what my friend Rick Garnett would have you believe) unconstitutional, the Supreme Court should not rule that it is unconstitutional.  Click here and here for details.
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More from Robert George

I received from Professor George another contribution to the conversation about the public witness of Catholics -- on the political left and political right -- on issues like the abuse of detainees, same-sex marriage, and abortion:

Michael Perry is puzzled that I would propose a joint statement by Catholic scholars across the political spectrum affirming and defending the Church’s teaching on torture, the death penalty, abortion, and sexual morality. I’m puzzled that he’s puzzled.  His perplexity arises from my inclusion of Catholic teaching on sexual morality.  This teaching, he says, “lacks credibility” for most American Catholics. “Robby knows that very many of us cannot in conscience affirm that teaching.”  Indeed, I do know (and regret) that.  But I also know (and regret) that a great many American Catholics cannot in conscience affirm the Church’s teaching on the death penalty.  They, too, observe that the teaching they reject lacks credibility for most Catholics in the United States.  I also know (and regret) that there are many American Catholics who in conscience oppose the Church’s teachings on abortion, regarding it as a woman’s right.  And I know (and regret) that there are many Catholics who in conscience oppose the Church’s teaching on torture, regarding torture as licit and possibly even required where resort to it is the only way to obtain urgent life-saving information from terrorists.  Catholics who dissent from the Church’s teachings in any of these areas could say what Michael said:  “Robby knows that very many of us cannot in conscience affirm the Church’s teaching on [fill in the blank], so why would he propose to include that teaching in a joint statement?”

There are Catholics—conservatives and Republicans as well as liberals and Democrats—who hold that it is permissible for them to dissent even from what the magisterium of the Church proposes as authoritative Catholic teachings.  Michael is one.  For him, the Church’s teachings on sexual morality are merely “official,” not authoritative.  William F. Buckley, Jr. is another.  For him, the Church’s developed teaching on the death penalty, for example, is “prudential” but not authoritative.  He dissents.  Despite the wide ideological gulf separating Michael and Bill, they are in the same camp in denying that Catholics are responsible to form their consciences in line with norms of morality proposed by the magisterium as binding (whether infallibly proposed or not).  (This is not to suggest that the Church’s teachings on the death penalty are on the same plane of authority as her teachings on marriage and sexual morality.  The latter teachings have been clear, firm, and constant over the centuries. Germain Grisez and others have argued that many of them are infallibly proposed by the universal ordinary magisterium pursuant to the criteria set forth in Lumen Gentium of the Second Vatican Council.  This is plainly not true of the developed teaching on the death penalty.)  But there are Catholics—liberals and Democrats as well as conservatives and Republicans—who take a different view.  We understand the norms of Catholic faith as demanding from us assent of intellect and will to teachings proposed by the magisterium as binding.  For most who share this understanding, assent is intellectually unproblematic, however much it may detract from our popularity in the social environment we inhabit or the “political circles” in which we travel.  We are open to the teachings and find their point and justification intelligible and persuasive.  We are not surprised to find them rationally defensible, since these are matters that the Church herself teaches can be understood by the light of natural reason, and we believe that the Holy Spirit guides the Church in ways that enable her to teach reliably on such matters.

Now there is no point here in rehearsing the argument between people in these two camps.  That argument is interesting and important, to be sure, but it is beside the point of this discussion.  (Anyone wishing to examine what has been said by leading theologians on the competing sides would do well to look at writings by Francis Sullivan and Germain Grisez.  For those who prefer reading the works of law professors, John Noonan and John Finnis have written on the subject from opposing vantage points. In the course of analysis, they offer competing understandings of the development of the Church’s teaching on slavery, usury, religious freedom, etc.)  The important thing here is simply to note the fact that there are two camps, but they do not divide along partisan or ideological lines.  There are liberals and conservatives in both camps.

I don’t think it would add much value to our national politics for a group of Catholics including those who regard themselves as free to pick and choose among the authoritative (as I said, Michael would reject this term in favor of the term “official”) teachings of the Church on issues dividing secular liberals and conservatives to issue a joint statement.  I do think, however, that Catholics who understand and affirm what I referred to as the “seamless garment” of Catholic moral teaching—that is, those who believe, as I believe, that the teachings across the spectrum of issues from those that vex most secular liberals to those that trouble many secular conservatives derive from the Church’s profound understanding of the dignity of the human person—can add something important to the national debate by laying aside partisan and ideological differences to affirm what we regard as the moral wisdom of the Church, regardless of whose partisan or ideological ox is being gored.

I’m sorry that those Catholics—conservatives and liberals alike—who regard themselves as entitled to dissent from the Church’s moral teachings on the death penalty, sexual morality, or whatever would in conscience be unable to join the effort.  But to try to bring them in would be to render the effort pointless.  Either the statement would say nothing very interesting, or the list of signatories would read like the list of justices in a fractured Supreme Court ruling:  Professor Jones joins the statement on torture and the death penalty, but not on abortion and sexual morality; Professor Smith joins on abortion and sexual morality, but dissents on torture and the death penalty; Professor Wilson joins on torture and abortion, but declines to join on sexual morality and the death penalty; and so forth.  What good would that do?

The distinguished political scientist and public policy scholar John DiIulio (himself a Democrat) has argued that what is needed from Catholic intellectuals, be they Democrats or Republicans, is fidelity across the spectrum of issues on which the Church authoritatively teaches.  Conservatives should form their consciences in line with the wisdom of the Church even where, in terms of contemporary politics, that leads to judgments generally regarded as “liberal.”  Liberals should form their consciences in line with the wisdom of the Church even where that leads to judgments regarded as “conservative.”  (Professor DiIulio’s teaching is much in the spirit of the late philosopher Elizabeth Anscombe, who to the annoyance of many on the right condemned the dropping of atomic bombs on Hiroshima and Nagasaki and the Cold War strategy of nuclear deterrence, and who to the annoyance of many on the left spoke out against contraception, abortion, fornication, and sodomy.)  Like me, Professor DiIulio believes in the seamless garment of Catholic moral teaching.  If we are right, then there is everything to be said for joining together across the lines of partisan and ideological division to confront what passes as wisdom in the world (or, perhaps I should say, in the worlds of secular liberalism and conservatism and in the Democratic and Republican parties) with what we are convinced (though we are aware that not all of our fellow Catholics share our view) is the wisdom of Christ alive in His Church.  Many secular liberals would, to be sure, be scandalized by what they would regard as the “intolerance” of Catholic liberals who joined our act of witness.  Many secular conservatives would, no doubt, be annoyed by what they would view as the “soft-headedness” of Catholic conservatives in our group.

We Catholic liberals and conservatives could all be “fools for Christ” together.

I should say -- with respect to Professor George's posts and also Michael's and Eduardo's -- that I am grateful for the forum that Mirror of Justice provides for thoughtful scholars, citizens, and Christians to work through these questions and debates.  As I imagine we all know well, such forums (I don't like the word "fora") are too rare.

Still more on Daniel Dennett on God

John Haldane, the highly respected philosopher at the University of St. Andrew's in Scotland, reviews Daniel Dennett's book on religion in this week's COMMONWEAL (3/10/06).  (Haldane, as it happens, is Roman Catholic.)  Well worth your time.  Click here.
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Terri Schiavo and End-of-Life Decisions

An excellent piece appears in this week's COMMONWEAL (3/10/06):  Paul Lauritzen,  Caring at the End: How the Schiavo Case Undermined Catholic Teaching.  To read the whole piece, click here.   The concluding paragraphs follow:

Thus, to say that removing a feeding tube from a PVS patient is necessarily to aim at death is to conflate human action and natural events. It is to fail to recognize that dying is commonly associated biologically with a natural inability to eat or drink. If we do not conflate human and natural causality, it is perfectly sensible to say that a person suffering from a severe brain injury who cannot eat or drink is in fact dying, even if we can intervene and postpone that dying for years. Not starting or stopping artificial nutrition and hydration in such a case is not necessarily to aim at death, though one could intend death in such circumstances.

To conclude otherwise, it seems to me, is to succumb to a sort of hubris that repudiates any natural limits on human action. Callahan has captured the irony of this situation perfectly. “In the name of the sanctity of life, many who would consider themselves conservative and supporters of traditional religious values are forced into a slavery to medical possibilities, held in thrall by the false gods of technology.” The irony is particularly striking in relation to the Catholic commentators (Meilaender is not Catholic) who appear to adopt the Promethean attitude toward human embodiment and finitude that the tradition has long rejected.

There was a time when it would have been possible for Catholic writers, with the full weight of magisterial teaching behind them, to say that a life lived in a state of permanent unconsciousness with no apparent hope for a spiritual or social life was a terrible prospect, one that no person was obligated to embrace. In traditional Catholic teaching about the end of life, letting nature take its course in such a case made sense, not because such a life was regarded as worthless, but because in such a circumstance we confront the limits of human powers in the face of human vulnerability.

Both the view that providing nutrition and hydration for PVS patients is morally obligatory, and the position that providing a feeding tube is a form of care and not treatment, represent a shift in Catholic teaching. Understandably, commentators who have noted this shift have sought to downplay its significance, perhaps hoping that the change will be confined to cases involving persistent vegetative states. My own view, though, is that the changes are much more profound than anyone has acknowledged. They threaten to dismantle not simply Catholic teaching on end-of-life issues but much of Catholic moral theology generally. When natural constraints on human actions are treated so cavalierly, when what we can technically do appears to determine what we ought to do, the wisdom of the tradition that recognizes the goodness of our embodied existence and the fact that mere existence is not an ultimate good, seems to have been lost. If the ordeal of the Terri Schiavo case helps us to recognize the possibility of such a loss, it will not have been in vain.
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"When Would Jesus Bolt?"

Amy Sullivan visits Alabama to explore the GOP's increasing restlessness over whether it can keep evangelical voters in the fold.

Rob

Monday, March 6, 2006

Conservative Judaism and Same-Sex Unions

New York Times
March 6, 2006

Conservative Jews to Consider Ending a Ban on Same-Sex Unions and Gay Rabbis

In a closed-door meeting this week in an undisclosed site near Baltimore, a committee of Jewish legal experts who set policy for Conservative Judaism will consider whether to lift their movement's ban on gay rabbis and same-sex unions.

In 1992, this same group, the Committee on Jewish Law and Standards, declared that Jewish law clearly prohibited commitment ceremonies for same-sex couples and the admission of openly gay people to rabbinical or cantorial schools. The vote was 19 to 3, with one abstention.

Since then, Conservative Jewish leaders say, they have watched as relatives, congregation members and even fellow rabbis publicly revealed their homosexuality. Students at the Jewish Theological Seminary in New York City, the movement's flagship, began wearing buttons saying "Ordination Regardless of Orientation." Rabbis performed same-sex commitment ceremonies despite the ban.

The direction taken by Conservative Jews, who occupy the centrist position in Judaism between the more liberal Reform and the more strict Orthodox, will be closely watched at a time when many Christian denominations are torn over the same issue. Conservative Judaism claims to distinguish itself by adhering to Jewish law and tradition, or halacha, while bending to accommodate modern conditions.

"This is a very difficult moment for the movement," said Rabbi Joel H. Meyers, a nonvoting member of the law committee and executive vice president of the Rabbinical Assembly, which represents the movement's 1,600 rabbis worldwide.

[To read the whole article, which is quite interesting, click here.]
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More on parental notification laws

Notre Dame law prof Carter Snead has forwarded me a study on the efficacy of pro-life abortion laws that diverges significantly from the conclusions reached by The New York Times.

Rob

UPDATE: The author of the study responds directly to the Times article here.

Of Interest to Some MOJ-Readers ...

"Ghost Prisoners and Black Sites: Extraordinary Rendition Under
International Law"
      Case Western Reserve Journal of International Law, 2006

      BY:  LEILA N. SADAT
              Washington University School of Law

Document:  Available from the SSRN Electronic Paper Collection:
http://papers.ssrn.com/paper.taf?abstract_id=886377

Paper ID:  Washington U. School of Law Working Paper No. 06-02-01

Contact:  LEILA N. SADAT
   Email:  Mailto:[email protected]
  Postal:  Washington University School of Law
           Campus Box 1120
           St. Louis, MO 63130  UNITED STATES
   Phone:  314-935-6411
     Fax:  314-935-5356

ABSTRACT:
This Essay examines the contentions of U.S. government lawyers
that the U.S. should abandon the provisions of the Geneva
Conventions in favor of a de novo legal regime that would govern
the capture, detention, treatment and trial of enemy prisoners
taken in the Global War on Terrorism (GWOT), whether captured in
the U.S. or abroad. In particular, it examines the question of
extraordinary rendition - transferring detainees abroad for
detention and interrogation either from the United States, on
behalf of the United States, or from occupied Iraq. Although the
numbers of prisoners rendered abroad has been relatively few,
the covert nature of the operations, and the allegations of
prisoner mistreatment raise very troubling questions about the
wisdom and the legality of the U.S. rendition program. It
concludes that extraordinary rendition is not permissible under
existing, applicable and well-established norms of international
law. Additionally, because renditions are carried out in secret,
employ extralegal means, and often result in prisoner abuse,
including cruel treatment, torture, and sometimes death - they
appear to be emblematic of the larger human rights concerns that
trouble many of the detention and interrogation practices
employed by the U.S. government since September 11, 2001. Of
particular concern is that rather than explicitly amending the
law or articulating clear, narrowly tailored justifications for
derogating from the law, derogations that would presumably be
temporary and specific, such as the derogations permitted under
international human rights treaties, government officials have
sought to redefine legal norms in an exceptional burst of
�executive activism� in ways that are neither particularly
plausible or persuasive. This use of legal subterfuge is deeply
troubling in and of itself, as well as in regards to it
potentially harmful consequences. Finally, the Essay questions
the efficacy, as well as the wisdom, of these extralegal
policies.
          

The Progressive William Jennings Bryan

If this NYTimes review is accurate, a new biography of William Jennings Bryan, A Godly Hero, is both interesting in its own right and relevant to the questions today about the lost connection (and possible reconnection?) between traditional religion and progressive politics.

Bryan is mainly remembered as the fanatical old fool Fredric March played in "Inherit the Wind." Michael Kazin's valuable biography of the Great Commoner, "A Godly Hero," aims to dust him off and resurrect him as a political model for small-p progressives in the new century. Kazin [a Georgetown history prof] presents a compelling case that Bryan, at his zenith, was not only a powerful and effective leader of a political-moral crusade but also a pioneering advocate of progressive ideas still with us today. . . .

Kazin also contends that Bryan's opposition to evolution was in part aimed at social Darwinism, which contemporary proponents used to justify war, exploitation by the strong and eugenics. . . .

The author criticizes current liberals who have sought to "quarantine the sacred from the realm of politics" and have lost the trust of the majority who "yearn . . . for a society run by and for ordinary people who lead virtuous lives" — Bryan's people.

Yet many of these people have presumably found a home on the religious right, where they support a narrow pro-business program that omits the concern for economic justice that galvanized Bryan. How could Bryan's Christ-inspired populism thrive in today's multicultural society? Still, there is a religious left that shows signs of reviving.

Tom

Solomon Amendment Unanimously Upheld

The Supreme Court has unanimously upheld the government's power to withhold funds from law schools that refuse to accept military recruiters.  The reports indicate that Chief Justice Roberts' opinion

said there are other less drastic options to protest the policy [of "don't ask, don't tell" concerning gays].

''A military recruiter's mere presence on campus does not violate a law school's right to associate, regardless of how repugnant the law school considers the recruiter's message,'' he wrote.

Earlier MOJ posts on the case, and its relation to issues like subsidiarity, are linked to here.

Tom