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.

Wednesday, May 10, 2006

Can a Catholic defend legal equality?

I would have thought so but, apparently, some in the United Kingdom have their doubts.  Ruth Kelly, The Independent reports, the U.K.'s "Secretary of State for Communities," is a "committed Catholic and a member of the Opus Dei group."  And, some are questioning her ability to enforce the U.K.'s anti-discrimination laws.  (Here is the Telegraph's story).  The (great) Christianity Today weblog has more:

Devoutly Catholic British Labor MP Ruth Kelly is at the center of a national fight on homosexuality. Critics say that Kelly's religious views make her incapable of supporting equal rights for homosexuals in her new post as Minister for Women and Equality. Among the complainers is fellow MP Evan Harris, who told the gay U.K. news site PinkNews, "It doesn't help that the cabinet sponsor for gay rights who, through her religious views, does not support full equality."

Kelly told the same site, "People should be allowed to decide how they live their lives. I believe in a tolerant, diverse, multicultural society where everyone is protected from discrimination. I will fight discrimination, whether it be on the grounds of race, gender, disability or sexual orientation."

But it wasn't enough that Kelly said she would fight discrimination. For the last day or so, she has been hounded with one question: Does she believe homosexual behavior is sinful?

According to The Times, Kelly didn't respond directly, but turned the question around:

Is it possible to be a practicing Catholic and hold a portfolio in government. The answer is yes. Why? Because I am collectively responsible for Cabinet decisions, I firmly believe in equality and that everyone should be free of discrimination and I will fight to the end to make sure that's the case. I think everyone in society should be given the opportunity to fulfill their potential.

When asked again whether she thinks homosexual behavior is a sin, Kelly said, "I don't think it's right for politicians to start making moral judgments about people, it's the last thing I want to do or want to get into." The British press will likely be giving this saturation coverage for another day or so.

Fr. Guevin versus Fr. Rhonheimer on Humanae Vitae

Now you can read the debate for yourselves.  Click here.  To get a further sense of the competing positions on Humanae Vitae, click here (the Rhonheimerian view) and here (what I take to be the traditional view, defended by Fr. Guevin, Janet Smith, et al.).

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Fr. Rhonheimer, an Opus Dei priest (!) and professor of ethics and political philosophy at Rome’s Pontifical University of the Holy Cross, is a very interesting man.  He writes, in a First Things article on the Holocuast back in 2003:

I am a Catholic priest—but I come from a family that is three-quarters Jewish. I love my Church. I believe in the truth that the Church proclaims. I proclaim that truth myself. Yet I also have an emotional bond to Judaism, and to my Jewish relatives. I am pained by unfair Jewish attacks on the Catholic Church. But I am also pained by a one-sided Catholic apologetic that minimizes the injustice done by Christians to Jews in history, or seeks to relegate it to oblivion. I am especially aware of the Jewish sensitivity to topics that Catholics often pass over either too quickly or in silence. Even if some of the Church’s present-day critics are clearly more interested in promoting their own careers or ideological agendas than in seeking the truth, some of the blame for their “success” clearly rests on Catholic shoulders.

Rhonheimer concludes his First Things article with these comments:

Well-intentioned Catholic apologists continue to produce reports of Church condemnations of Nazism and racism. But these do not really answer the Church’s critics. The real problem is not the Church’s relationship to National Socialism and racism, but the Church’s relationship to the Jews. Here we need what the Church today urges: a “purification of memory and conscience.” The Catholic Church’s undeniable hostility to National Socialism and racism cannot be used to justify its silence about the persecution of the Jews. It is one thing to explain this silence historically and make it understandable. It is quite another to use such explanations for apologetic purposes.

Christians and Jews belong together. They are both part of the one, though still divided, Israel. This is why Pope John Paul II has called Jews, in exemplary fashion, our “elder brothers.” Brotherhood includes, however, the ability to speak openly about past failures and shortcomings. This is true, of course, for both sides. But in view of all that Christians have done to Jews in history, it is Christians who should take the lead in the purification of memory and conscience.

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Some final thoughts on BC and the Cardinal Newman Society, from Elizabeth Brown

Comments from Elizabeth (via Tom):

I will make this brief as I think that this issue has been almost exhausted on MoJ.  I am very glad to see that Greg agrees that the additional information, which I posted to MoJ, is relevant and helpful with regard to both the issue of whether the BC professors should have objected (publicly or privately) to the past speakers and award recipients cited on MoJ and the issue of whether the BC professors are actling consistently when they invoke Catholic Social Teachings to object to Secretary Rice. 
I agree that, if one did a thorough search of the Cardinal Newman Society website, one could find references to the fact that Breyer, Drinan, Dellinger, and Cellucci were given awards or spoke at BC Law School.  Nevertheless, the Cardinal Newman Society is not always so accurate.   For example, the Culture of Death report, which I previously cited, does contain errors and omissions.  The report only mentions Sara Lawrence-Lightfoot as being the Chair of the MacArthur Foundation and does not mention her service for ten years as a member of the Board of the MacArthur Foundation.  It does not indicate that Stephen Breyer was the Law School's commencement speaker, not the University's, and it does not indicate that Justice Breyer received an award from the Law School, as I indicated in my post.  The report does not discuss the objections raised against Paul Cellucci by Cardinal Law, among others, for his support of the death penalty.  The Culture of Death report is available here

Opus Dei Fr. Martin Rhonheimer

[The following excerpt is from the May 5th edition of John Allen's The Word from Rome.  (For the whole letter, click here.)

From the earlier posts on contraception, you may remember that Opus Dei Fr. Martin Rhonheimer is the moral theologian according to whom Humanae Vitae teaches this position:  It is not intrinsically immoral for a married couple to use a condom during sexual intercourse.  Their intent in using the condom makes all the difference.  If their intent is to prevent conception, their action--i.e., their engaging in condomized sexual intercourse--is immoral; but if their intent is to prevent the spread of HIV, their action is not immoral.

Now, the excerpt:]

One footnote from the Vienna gathering. Opus Dei Fr. Martin Rhonheimer, widely recognized as a provocative and unpredictable thinker, argued for a kind of "Christian secularity," by which he meant the capacity of Christians to recognize democratic institutions as legitimate and accept their outcomes even when they contradict Christian religious convictions.

Paradoxically, Rhonheimer said this act of humility actually facilitates a Christian "superiority complex," in the sense that once the secular world accepts the universality of human dignity and the bundle of absolute human rights it implies, it will sooner or later discover that the Christian gospel provides the strongest cognitive basis for explaining and defending those rights.

As part of this discussion, Rhonheimer got tongues wagging by suggesting that American Catholics have made a mistake by exalting the abortion issue above virtually everything else, neglecting other important human and social rights issues. As one participant later said, it sounded reminiscent of the "seamless garment" argument once made by the late Cardinal Joseph Bernardin of Chicago.
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Abortion/Contraception

I'm not really qualified to debate the statistics cited in the NY Times article.  They appear to be based on studies by the Guttmacher Institute, which several MOJ readers have e-mailed me to criticize.  I'm willing to take them with a grain of salt.  But I think the more interesting question is what, if true, these statistics suggest about the proper legal responses to the Church's moral teaching on abortion.  If it were the case that prohibition of abortion does not actually decrease the number of abortions but simply drives abortion underground (with resultant harm to women who choose to procure illegal  -- and often unsafe -- abortions), as appears to be the case in at least some countries, then does categorical moral opposition to abortion require support for its legal prohibition?

Bottum on "Censorship Envy"

Over at the First Things blog, Jody Bottum has some thoughts on Cardinal Arinze's recent remarks in which he appeared to called for state censorship of The Da Vinci Code.  Bottum responds also to Eugene Volokh's post, criticizing Arinze, on "censorship envy."  Check it out.

"Killing in Good Conscience"

Here is a paper that should be of interest, "Killing in Good Conscience:  Comments on Sunstein's and Vermeule's Lesser Evil Argument for Capital Punishment and Other Human Rights Violations":

In a recent article, Cass Sunstein and Adrian Vermeule argue that capital punishment is morally required if it will deter significantly more killings than it inflicts. They claim that the state’s duty is to minimize murders, and that recent deterrence research shows that state executions, even if deemed murders themselves, can do so. If these findings are true, they argue, the state is morally obligated to undertake such “life-life tradeoffs.”

The logic of Sunstein and Vermeule’s argument justifies not only state executions, but any state-perpetrated injustice that promises to reduce the incidence of similar injustices overall. Recently such lesser evil arguments have been invoked to justify state torture, detention without trial, and warrantless wiretapping. In this article, I identify problems that are common to all of these arguments. My aim is to demonstrate that, however valid the lesser evil approach may be in some domains, it fails when invoked to defend state violations of the right to life and other fundamental human rights.

Tuesday, May 9, 2006

British Abolitionism and Christian Fervor

In the latest Books and Culture, John McGreevy of Notre Dame reviews Adam Hochschild's Bury the Chains, which John finds "a riveting history of the British anti-slavery movement" that secured the abolition of the slave trade in the Empire in 1807.  But John also finds that the book has a significant blind spot.  Surprise, surprise, it's the centrality of Christian religious fervor to this "first global human rights campaign."  (NOTE: The sarcasm there is not aimed at John; rather it's because this is hardly the first time that modern proponents of human rights have overlooked the role of religion in their development.)

Unfortunately Hochschild's first lesson is to make an anachronistic distinction between religious (bad) and secular (good) reform. The anti-slavery moment, he opines, marks the moment when reformers moved from reliance on "sacred texts" to "human empathy." High praise goes to Thomas Clarkson for writing a report "more like a report by a modern human rights organization" instead of a "moralizing tract." . . .

[W]e must banish the image Hochschild perhaps inadvertently forwards: of anti-slavery activists as proto-Amnesty International members straining to escape a culture blighted by religious obscurantism . . . .

In all this Hochschild reflects our own time. Arguably the most important religiously based "reform" effort of the last generation has been the anti-abortion campaign, a movement not high on the agenda of most professional human rights activists. (It's not coincidental that "reproductive rights" has become a pro-choice slogan.) If the achievement of Bury My Chains is to offer a gripping account of the campaign to eliminate slavery in the British empire, its limitation is to read current cultural divisions into a more complex, even alien past.

Tom

P.S.  It's terrific to see John, a great historian who is Catholic, writing in the evangelically-based Books and Culture.

Boston College Commencements, Cardinal Newman Society, Etc.: Correcting the Record and Again Affirming the Value of Questions About Catholic Identity

Over the weekend, in the wake left by both a colleague and former law student here at the University of St. Thomas, I waded into what Mark Sargent accurately has called a “kerfuffle” about objections raised by Boston College faculty to an honorary degree to Secretary of State Condoleezza Rice (arguing that her position on the war in Iraq contradicted fundamental Catholic teachings), together with a supplemental inquiry about whether objections to speakers and honors based on fundamental conflicts with Catholic principles were being made consistently. The heart and soul of my weekend posting affirmed the great value of asking such questions about Catholic character in our academic communities, addressing fundamental Catholic values and striving always for consistency in principle, but not insisting upon my own particular answers on every occasion to those questions. As I stated, in my view, the Catholic character of an institution is strengthened and highlighted by the very asking of the questions.

Yesterday, at the request of my colleague, Elizabeth Brown, I posted a message in which she challenged the accuracy of a partial list of pro-abortion Boston College speakers and honorees obtained from the Cardinal Newman Society. Allowing my colleague Elizabeth to present her message without interruption, I promised any response would be separate and subsequent.

In my weekend posting, I deliberately focused upon the general subject of Catholic identity in higher education, while pausing only briefly to address the controversy of the moment that initiated this debate. Because I do not wish us to miss the forest for the trees, I am wary of entering a tit-for-tat exchange, that could spiral down into increasingly fine factual distinctions of diminishing importance. And, as what follows shows, correcting the factual record is meticulous work requiring a protracted explanation, which is ill-suited for a blog. At the same time, we cannot truly explore the meaning of a principle without seeing it in actual application. To belabor the metaphor, the forest cannot be fully appreciated without giving attention to each tree and, on occasion, examining the health of individual leaves. So here is a more specific response and some corrections to the factual record as explored by Elizabeth’s posting. And then I’ll withdraw for a while so as not to dominate the conversation with these lengthy postings.

In yesterday’s posting, Elizabeth Brown listed each pro-abortion public figure identified by the Cardinal Newman Society (CNS) as having been a commencement speaker or award recipient at Boston College—and then outlined what she viewed as the crucial errors and omissions in that CNS list. As an engagement with and as one plausible answer to the consistency question, I find Elizabeth’s message to be a qualified success. As an exercise in exposure of error, I respectfully submit she falls short and actually introduces error in ascribing error. Still, given that I am more interested in progress in encouraging and addressing questions about Catholic identity, the successful dimension of Elizabeth’s message largely outweighs the failure in my mind, although both deserve some further discussion below.

Elizabeth asserts essentially three mistakes or omissions in the Cardinal Newman Society’s listing of speakers or honorees. First, in the case of one Boston College honorary degree recipient, CNS identified the person as the chairwoman of a particular organization with a public record of promoting abortion, whereas Elizabeth emphasizes that she did not become the chair until the month following the college recognition. However, as it turns out, this individual had been named chair months earlier, as evidenced by numerous news reports dating months before the college event, although she did not officially step up to that post until shortly after the college honor. Moreover, she had been a prominent member of the organization’s board for more than a decade previously and had been named fellow of that organization nearly two decades earlier. In other words, at the time of the honor, she most definitely did have the "ability to shape or influence the policies" of the organization.

The second objection Elizabeth raises is that all but one of the pro-abortion advocates CNS identifies were commencement speakers or honorees at the Boston College law school rather than for the college as a whole. She’s certainly correct about this, but mistaken in attributing error to CNS. In its published reports and on its web site, the Cardinal Newman Society accurately reports that each of the individuals that Elizabeth discusses indeed were speakers at the law school commencement or received an honor at the law school.

Moreover, even if CNS had not carefully and accurately reported these cases as law school recognitions (as it did), the indelible fact would remain that the institution had bestowed such an honor. Now I do think the fact that these honors were located in a particular department of the college is relevant to the question of consistency by faculty in raising objections (as I discuss below). But from an institutional standpoint, a commencement speaker at a law school or graduate school or business school commencement is a commencement speaker at that college of university. If it is objectionable for a college or university to honor a public official whose position or conduct arguably stands in egregious contradiction to Catholic teaching, then it does not become less so because the figure is honored at one school rather than another. Indeed, while Secretary Rice is to be the commencement speaker for the entire university, I understand that the honor to be conferred is an honorary doctor of laws.

Elizabeth also attributes error to CNS’s listing because she emphasizes that the commencement speakers were not selected for that honor because of their pro-abortion stance. But this reflects no error on the part of CNS. Neither CNS nor anyone else has suggested that Boston College affirmatively endorsed pro-abortion advocacy as the actual reason for these recognitions. Thus, Elizabeth’s listing of achievements by and quotation of commendations to the specific commencement speakers or honorees does not contradict the description by CNS of the prominent roles played by these same public figures in promoting the abortion license.

So the Cardinal Newman Society passes the accuracy test with flying colors. And somewhat ironically, given the matter that provoked the "kerfuffle" in the first place, that same organization actually has joined in objecting to any honor to Secretary Rice at Boston College, focusing upon Secretary Rice’s support for the abortion license.

Still, while Elizabeth may have gone awry in identifying errors, I do think she succeeds, at least in part, in offering a fuller context in support of a plausible answer to the consistency question. In particular, after explaining that most of these arguably pro-abortion figures were commencement speakers at the law school, Elizabeth suggests that faculty from elsewhere in a college or university might feel constrained from voicing a protest. To be sure, one could argue that principled objections, at least those framed in terms of a fundamental conflict with Catholic teaching, ought be projected beyond the hallways of one’s particular department or school. Moreover, the post that raised the consistency question on this blog was directed to all protesting faculty at Boston College, which as a group apparently numbers around 150 and quite probably includes members of the law faculty.

Yet Elizabeth further submits that faculty from elsewhere in a university (and I would bolster her point here by saying that the same could be said for those within a particular component) might be inclined to voice any objection to an honor or speaker in another department in a private communication. Given that respect and decorum often counsel the private expression of concerns, the possibility that some of the presently-objecting faculty may have raised private objections in the past strikes me as a fair answer. In any event, as Elizabeth concludes, absent further information to the contrary, we ought to assume good faith on the part of all concerned. I would include as well those who raise questions.

In sum, while I understand that Elizabeth viewed her message as a correction to what she (mistakenly) viewed as inaccurate information, I believe that her message served better as a decent if not dispositive answer to the underlying merits of the consistency question. In other words, rather than exposing the consistency question as inherently flawed in the asking or undermining the legitimacy of the inquiry, she inadvertently affirmed the question by attempting to answer it. And I see that as a quite good thing.

In the end, what matters most is that we confront the consistency question, not as a substitute for addressing the merits of the objection at hand but as a supplemental inquiry. After all, a perfectly understandable answer to the consistency question would be simply to say, well, there has to be a first time for any one of us to raise a principled objection, that is, for any of us to call upon an institution to live up to its Catholic identity. That due to reticence or ignorance or neglect or simply being distracted I may have failed to stand up for principle in the past surely is no reason to continue to do so. The acid test is whether, now that I have spoken up for Catholic character, will I continue to do so in the future.

And so I end where I began over the weekend: Both lines of inquiry—about objections to honors in specific cases and about consistency in treatment in general—are honorable and fairly posed and legitimately explored on the Mirror of Justice and elsewhere. When we assume good faith on the part of all participants in the debate, the introduction of a dialogue about affirming the Catholic character of our institutions should in itself have the salutary effect of strengthening that character.

Greg Sisk

Conscience and School Choice

I've just posted a new paper, The Sanctity of Conscience in an Age of School Choice: Grounds for Skepticism.  Here is the abstract:

A certain degree of deference to the individual consciences of both students and teachers makes sense under our traditional “common school” framework. Where students and their families are presented with a single option of publicly financed schooling, and where public school teachers’ employment opportunities are fungible in terms of the moral content of the curriculum and pedagogical mission, the school is functionally equivalent to the state. As such, invoking the sanctity of conscience can bolster the individual’s authority in what otherwise would be a pronounced power disparity in the state’s favor.

But the rise of school choice in many places gives students and teachers an important tool that may change the power dynamic in their relationship with any particular school: an exit option. Even in school districts that have not embraced private school vouchers, an array of charter, magnet, and other schooling options have created paths by which like-minded teachers and students can affirmatively choose to invest themselves in one school instead of another based on distinct normative claims embodied in the schools’ respective missions. As school choice bolsters the ability of a school to create its own identity, the ability to maintain and defend that identity presupposes a reduced authority for the individual consciences of the school’s prospective constituents.

Under these circumstances, schools no longer function as fungible components of an educational monopoly backed by coercive state power. Schools instead begin to serve a mediating function, linking students and teachers together in common support of a mission that is not shared by every school. The viability of this mediating function has two implications for individual conscience: first, to the extent that a teacher’s conduct is inconsistent with the school’s deliberately chosen mission, the school has a stronger claim to control it; and second, to the extent that the implementation of a school’s mission creates tension with a dissenting student’s conscience, the student’s exit option gives the school a stronger claim to maintain its mission. Conscience is by no means erased from the religious liberty analysis in an era of school choice, but its relevance and authority must be viewed from a different perspective. This article aims to begin tracing the contours of that perspective.

Feedback is, as always, much appreciated.

Rob