Thanks to Michael P. for posting Fr. Greg Kalscheur's new paper on the Lawrence case. I had a chance to read closely, and comment on, the paper this summer, and thought it was very insightful.
One thought that I shared with Fr. Kalscheur -- a thought that might serve as a caveat -- is that, in my view, it is important that we distinguish between (a) the criteria we might use to evaluate the justice or wisdom of a law and (b) the criteria we might use to evaluate the soundness of a judicial decision invalidating, on constitutional grounds, a law.
In my view, the "public morality" standard (and the several other factors Fr. Kalscheur identifies) are indeed quite useful for (a). That is, like Fr. Kalscheur, I am inclined to think that the law struck down in Lawrence, and laws like it, are unwise, even unjust. Still, I do not believe this necessarily authorizes their invalidation, on federal constitutional grounds. It seems to me that Fr. Kalscheur provides us with very good reasons for agreeing, on policy grounds, with the outcome in Lawrence; I'm not sure, though, that this does much to answer those critics who insist that Lawrence was not a justified use of judicial power. (It is worth noting that Justice Thomas wrote a short opinion in Lawrence that is quite consonant with Fr. Kalscheur's argument but that the paper does not discuss).
Professor Kaveny's response did not respond to - and perhaps confirms - what I pointed out about her conduct. She is behaving hypocritically by engaging in the very behavior for which she condemns others.
During the 2004 campaign, Dean Roche argued in the New York Times that pro-life Catholics could and indeed should vote for John Kerry despite the fact that – in Dean Roche’s words – “History will judge our society's support of abortion in much the same way we view earlier generations' support of torture and slavery - it will be universally condemned.”Picking up on Roche’s equating abortion with slavery, Professors George and Bradley published a careful, logically rigorous, point-by-point refutation of Dean Roche's claim that pro-life Catholics should vote for John Kerry. Roche and George/Bradley used argument for their respective positions.They did not insult their intellectual adversaries.They did not call them names.They did not accuse them of being dupes.They did not resort to caricature.Both pieces were attempts at persuasive argument.Since I rarely if ever engage in partisan political discussion on MOJ (if someone wants to know my reasons for this, I’ll be happy to oblige in a separate post), I’ll refrain from saying who I think was more persuasive.In contrast to Roche and George/Bradley, Professor Kaveny, instead of engaging the arguments of George and Bradley in a scholarly and responsible way, wrote an abusive reply in which she even sank to calling her opponents names – “Rambo Catholics” and “bullies.” She continues to refuse to apologize for her misconduct or even acknowledge it. The most she is willing to say is that her reply to George and Bradley was "heated."
Why is this important today, two years later?Because, in her recent Commonweal article in which she calls for a new civility - a new rhetoric, Kaveny continues to call her now unnamed interlocutors names even as she condemns them (without evidence) of name calling and demonizing.If Professor Kaveny cannot see that her tactics violate the civil discussion she wants, perhaps it is because, to use her own words, “You can’t argue someone out of a culture war mindset – on either side.”
In an effort to turn the tables on me, she professes to be "saddened that Catholics like Professor Scaperlanda can't see how deeply hurtful" it was to people like her that unnamed "prominent conservative Catholics" were suggesting at the time that voting for pro-abortion candidates was a mortal sin. This tactic of Professor Kaveny's will not substitute for either (1) an acknowledgment that her reply to George and Bradley was an example of the sort of abusive rhetoric she now condemns, or (2) an argument to show that it wasn't. Indeed, this "rhetorical strategy," as Professor Kaveny would label it if it were to be used by an intellectual adversary against her, merely compounds her offense.
I hope that readers will go back and read Kaveny’s 2004 response to George and Bradley to judge for themselves whether I have accurately portrayed that response. (Rick has provided links to all the relevant documents) I also hope that readers will go back and read George and Bradley's critique of Roche so that they will be able to evaluate for themselves the credibility of the following claim by Professor Kaveny: "I thought then, and continue to think now, that the rhetorical strategy Bradley and George used was not a helpful way to conduct a discussion of complicated issues involving prudential judgment. It shuts down conversation, it doesn't open it up."
Kaveny goes on to say "I didn't know -- and still don't know -- how one can effectively protest what one believes is an attack on one's fundamental integrity as a Catholic."I have a suggestion for Professor Kaveny. But since this suggestion also applies to me (and all who profess to be Catholics and/or scholars), I will state it in the "I" form. When I encounter serious arguments by serious scholars with whom I disagree, I should not hurl abuse at them or call them names. I should try my best to answer their arguments (just as George and Bradley answered the arguments advanced by Mark Roche). If I can formulate a credible answer, then there is no need for name-calling. If I can't, perhaps I should consider the possibility that my opponents are right.
The topic of women on corporate boards if one of great interest to me, both as someone who has written on matters of corporate goverenance and as someone who has served on the board of directors of a public company.
My starting point is that there is value to having women being represented on corporate boards of directors, just as there is value in representation on boards by members of racial minorities. That is, that we should be just as bothered by having corporate boards comprised exclusively or virtually exclusively by white males only, as by having the Supreme Court or the highest positions in other branches of government or the highest positions in the hierarchy of any other institution so comprised. I'm not sure I think it is just a question of equity, as Mark suggests. Rather, I tend to agree with Lisa's broad point, based on my experience in various walks of life, including both academic and business, that groups with a critical mass of women are different from groups without such a critical mass.
Whether that difference would translate into "better" corporate governance (a term we haven't defined, as Mark points out) is a different matter. Based on my limited board experience (serving on the board of one public company, during the first couple of years of which service I was the only woman) and the boards with which I dealt when in legal practice, I don't disagree with Mark that women bring the same professional, business and fiduciary ethos to the position as do men. However, it is also my (completely nonscientific, anecdotal) sense that there may be issues women are more likely to raise than are men.
One thing I think is beyond dispute is that there are a number of well-qualified women to serve on corporate boards. The comment of Michael's colleague that women such as academics have experience on some but not all issues that a board may face doesn't seem to me a persuasive one. That is true of virtually all board members. When I was on that board (as an academic who in my prior legal practice had handling executive compensation and benefits matters), no other person on the board approached my experience and knowledge in those areas. So there I brought more to bear in our discussions, whereas on other matters, other board members were more knowledgable. The pool of qualified candidates is there.
In this post-election season, I have reflected on some of the previous posts as well as various goings on in the political world of public life in the United States. I am sincerely grateful for the various exchanges, sometimes passionate, about Catholics and their participation in public life that have recently appeared in MOJ. I recognize the importance of discussion and debate. These are crucial to public life.
However, there are times—especially in political life—where the debate and discussion lead to the need to make decisions about public life. Often times this means that there will likely be a compromise. I am not adverse to compromise—on some issues. For example, I might be able to compromise on the minimum wage. If it were ever to be introduced in public debate, I might be able to make a compromise on whether a particular sum of money is a “family wage.” I could probably enter compromises on tax matters that involve national debt. But there are some issues in our public life on which compromise eviscerates the very thing being discussed. I find this true in “debates” on some of the most pressing issues of our time when they deal with human life. When the right to life becomes subject to compromise, political and otherwise, then anything else we may hold dear is in peril.RJA sj
I find myself increasingly frustrated by the conversation about the Wellesley "study" regarding women on corporate boards. That "study" was worse than useless; it's silliness makes it difficult to take as seriously as we should the question of whether the presence of women on boards would make a difference to corporate governance. Why is the study silly? Let me count the ways: the sample size is absurdly small; it is a survey of opinion, rather than anything measurable; the survey has no clear idea of how a critical mass of women would make a difference; it also has no clear idea of what the difference between good governance and bad governance might be; so the opinions it elicits are incommensurable with each other let alone anything coherent or tangible. The fatuousness of the study makes it look like special interest pleading supported by pseudo-scientific data. This is unfortunate, because feminist legal scholars have raised interesting questions about whether corporate law, and our models of corporate governance, are gender determined in some pernicious ways. I will add, however, that some distinguished female corporate law scholars find this whole line of inquiry fruitless. I will leave that debate to others. It strikes me as more important to figure out how we can get more women into the boardroom as a matter of equity, not because we should assume that corporations will be run differently, let alone "better" if more of them were there. In any event, I actually have spent a lot of time as a member of corporate boards and the boards of SROs (such as the New York Stock Exchange and the NASD) in the financial/securities world. I have served with many female co-directors. One cannot generalize from personal experience, but I can testify that my experience with highly professional, accomplished and hard nosed female directors from that world is that they were absolutely no different in any respect from their male colleagues ijn the way they approached their responsibilities and in the types pf decisions they made and the issues they considered important. They weren't "men in dresses"; they were people who adhered to the same professional/business/fiduciary ethos as the men. I was also delighted to see in the recent Hewlett Packard imbroglios with first Carly Fiorina and then Patricia Dunn that they are also equally prone to the same temptations of power as us guys. I think it is very dangerous to fall into a kind of essentialism about what women are like -- and I know some feminists would agree with that -- and to assume that a "critical mass" of women would produce a particular type of "better" corporate governance. As I stated above, it is silly to even begin this discussion without a very clear idea of what "better" governance is, or to continue it without a plausible explanation of how women would be more likely to produce it than men.
Michael -- Thanks for sharing your colleague's comments on my post about the Wellesley study finding that the presence of three or more women on corporate boards enhances governance. I haven't read more than the abstract of the study, either, and I agree that it doesn't sound like a particularly rigorous study. I will freely admit that my deeply held belief that the presence of some critical mass of women in any group engaged in any sort of enterprise -- from organizing an academic conference to running a parish committee to conducting a book club to acting as an advisory panel for Thompson/West's Selected Commercial Statutes Supplement -- perceptibly changes the dynamic, the process, and the experience, is based on personal experience and anecdote. Whether it has a measurable impact on the outcome or the success of the enterprise is a different question, and your colleague is probably right that this study doesn't prove that, one way or the other. I can't help but think that it would, but I also think it would be impossible to test this proposition at this time, given the dearth of critical masses of women on corporate boards.
I can appreciate your colleague's frustration at the dearth of women with credentials usually associated with board members, such attaining positions as CEO's and CFO's of public companies. Indeed, a couple of the articles posted under my name on the sidebar document the dearth of women in the upper echelons of the workplace generally, as well as in academia.
Your colleague asks: "Does a woman have a different take on issues of drug development than a man? I can't see how - we do our research in limited areas - HIV and Hepatitis drugs, where gender doesn't seem to play a role." Although I'm certainly not an expert on drug development, it seems to me that gender does play a significant role in choices about what sorts of drugs are developed and how they are marketed. I'm not going to be able to point to specific cites, and I'm open to being proved to have been foolishly swayed by "urban myths" by MOJer's and readers who know more about this than I, but isn't there some controversy about basic drugs having different effects on women's body's than mens, and about the prevalence of female contraceptive drugs that are much more intrusive on women's body's than men's contraceptive drugs might need to be on theirs? And isn't there significant concern about the spread of HIV among women in Africa and the marketing and sale of HIV drugs in Africa? It seems to me there might be some significant gender issues involved in drug development. Of course that doesn't establish that having a significant number of women on the board of a drug company might change the direction the company might take, or the eventual stock price of that company.
Finally, your colleague does suggest that "There may be companies where gender might matter.", speculating that "Consumer product companies where the market is largely composed of women is an obvious example. There may be other companies faced with charges or complaints involving gender, such as discrimination, where women's insights could be valuable."
I'd be curious to hear more about the particular difference in men's and women's perspectives that your colleague thinks might make a difference in those situations. Are women swayed by different kinds of marketing or advertising than men? Are women going to have different analysis of appropriate institutional reactions to certain charges and complaints than men, when faced with the same facts and the same legal schemes? I think probably so, and I think that these insights and the different reactions flowing from those insights might be equally valuable in almost every corporation in almost every situation. I'd be interested to hear more about why your colleague would limit the value of women's different insights to those two situations.
Abstract:
A persistent American confusion regarding the proper relationship
between law and morality is manifest in the opinions in Lawrence v.
Texas. The Second Vatican Council's Declaration on Religious Freedom
provides the foundation for an analytical framework that can bring
clarity to that confusion. The heart of this framework is the moral
concept of public order. This concept offers a principled explanation
of both the holding in Lawrence and the limitations the Court placed on
that holding. The Court could clarify the confusion manifest in
Lawrence by explicitly acknowledging that a state interest only becomes
legitimate for purposes of rational basis review when the asserted
interest constitutes a public order concern. A constitutional
jurisprudence that aspires to be faithful to the sort of limited
government that is demanded by respect for human dignity should
recognize that the state can only use law to restrain human freedom
when that limitation serves a public order function.
Here is an article about New Haven's "Veterans Memorial Coliseum, which for the past three decades has occupied -- some say blighted -- a downtown block of this oft-maligned city, [and which] is expected to be demolished next month."
The coliseum's destruction will be a depressing coda for Urban Renewal, the controversial nationwide movement that reshaped dozens of American cities from the late 1940s through the 1970s, claiming large swaths of rundown neighborhoods for huge government public works projects. Its foremost laboratory was New Haven, where officials spent $745 per resident on urban renewal projects from the 1940s through the late '60s, more than twice as much as the next most ambitious city (Newark, $277). The coliseum was the showpiece.
Urban renewal spread quickly after a 1949 housing act authorized and partly funded the taking of private land by eminent domain. Flush with federal money, states and cities rushed to adopt the model perfected by Robert Moses, a mid-20th-century power broker responsible for most of New York City's modern infrastructure of bridges and tunnels, parkways and highways. His imitators around the country seized entire neighborhoods, bulldozed them flat, and constructed new roads and grandiose civic buildings.
I'm sure my thinking on these matters is shaped (or distorted) by my reading of, and admiration for, Jane Jacobs. But, much of the "urban renewal" discussed in the piece, and for which Moses and his ilk were responsible, seems -- hindsight being 20-20, perhaps -- disastrously misguided. What are the lessons for today's urban planners, particularly the "urbanists" and neo-traditionalists?
In the case of Savanna Club Worship Service, Inc. v. Savanna Club Homeowners' Ass'n, Inc., 2005 U.S. Dist. LEXIS 43775 (S.D. Fla. 2005), a homeowners' association adopted a rule prohibiting any religious services in the subdivision's common areas, responding to complaints about the use of the club house by a group of association members for a worship services. The religious "club" alleged a violation of the Fair Housing Act's prohibition on religious discrimination. The court rejected the claim in the following sentences:
The club has a large membership and has impeded the rights of other members in their enjoyment of their facilities. The right to religious freedom must encompass the right to be free from religion. In this case, the Associations' member voted 714-434 to prohibit religious services in their common areas.
I'm not sure about the second sentence. Yes, I take it that religious-freedom-under-law should include legal protection from state-sponsored burdens on religious conscience (i.e., "freedom from religion"). But it seems very different to suggest that "religious freedom" includes the right not to be exposed or bothered by other private citizens' (peaceable) religious expression and activities.
Professors Alan Brownstein and Vik Amar have posted a two-partessay on what we might expect in the future -- i.e., from the Roberts Court, after O'Connor -- in terms of Religion Clauses doctrine, particularly the doctrine dealing with religious messages that are sponsored by the government or that are expressed in public forums. Brownstein and Amar are always thoughtful, and worth reading.
