This one from the Sixth Circuit. As described here, the court ruled that, although a hospital had agreed, as part of its accreditation, not to discriminate on the basis of disability, this agreement did not constitute a waiver of its right to invoke the ministerial exception in the face of a claim that it had, in fact, discriminated on the basis of liability.
Thursday, January 11, 2007
Another "ministerial exception" case
Wednesday, January 10, 2007
Executing the Insane
The United States Supreme Court has agreed to review a case, Panetti v. Quarterman, which presents a question about the constitutionally required standard for deciding when a convicted murderer is competent to be executed. More than 20 years ago, in Ford v. Wainwright, the Justices -- though splintered -- ruled that the Eighth Amendment, which prohibits "cruel and unusual" punishment, does not permit the government to execute a prisoner who is, at the time of his execution, insane. But what, exactly, does this requirement mean?
Panetti understands, apparently, that the state of Texas wants and plans to kill him. He believes, though, that this is not really because of his conviction for fatally shooting his in-laws in the presence of his estranged wife and their 3-year-old child, but is instead really part of a conspiracy among the state and others to prevent him from preaching the Gospel. So, is his awareness of what's coming enough to satisfy Ford? Should it satisfy us?
The answer depends, it appears, on why we think we ought not to execute -- or, why we think the Constitution does not permit us to execute -- an insane person. In the insanity-defense or death-penalty-for-juveniles context, our concerns have to do primarily with the defendant's culpability for the crime. Here, in contrast, we are assuming that the defendant was convicted of a crime for which he is legally responsible and for which the death penalty is legally authorized.
Justice Marshall, in Ford, discussed the common-law bar against executing a prisoner who had lost his sanity and concluded that "whether [the common-law bar's] aim [was] to protect the condemned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance, [it] finds enforcement in the Eighth Amendment." He suggested. among other things, that executing a person who is insane (a) has questionable retributive value because such a person "has no comprehension of why he has been singled out and stripped of his fundamental right to life" and (b) has no deterrence value because it does not serve as an example for others. What's more, he added, "the natural abhorrence civilized societies feel at killing one who has no capacity to come to grips with his own conscience or deity is still vivid today."
Are these arguments and claims persuasive? Or, put differently, do they retain the persuasive force they might have had in earlier times? And, if they are, then what do they suggest about the "sanity standard" the Court ought to embrace in Panetti?
More on Law and Christian Feminism
I agree with both Rick and Susan that Saturday's Lumen Christi/Christian Law Professor' Fellowship annual conference was a wonderful and energizing experience. Of course I thought the contributions by MOJ'ers Susan and Patrick Brennan were highlights, and I'm certain Michael Scaperlanda's contribution would have been a similar highlight had the schedule not been rearranged to delete it! But I was struck most vividly at this conference by a sort of epistemological insight that is probably self-evident to those of you who have been engaged in inter-religious dialogue for a long time. It seemed to me that all three of the panels highlighted very distinctly fundamental differences between the Catholic and Protestant perspectives on some basic theological or anthropological notions -- such as how original sin affects our ability to perceive the truth. The different faith traditions seem to offer entirely different angles of approach to the issues -- different starting points and different prisms through which the concepts were examined. And yet, despite these differences, we all seemed to be tending toward the same sorts of final conclusions about the topics we were addressing. I've never seen that demonstrated so vividly before, and I found it quite exhilerating.
As Susan explained, my contribution to the Christian Feminism panel was an exploration of the philosophical foundations of the concept of complementarity. Borrowing heavily on the work of Sister Prudence Allen, I described the evolution of philosophical thought about gender relations as weaving back and forth between the unisex view (no difference, total equality) to the polarity view (significant differences, either men or women superior to the other). Complementarity represents a third view, a view largely developed through the work of Catholic philosophers, which posits both significant differences between men and women AND fundamental equality. The philosophical foundations for complementarity were set down by (1) Catholic phenomenologists, the von Hildebrands and St. Edith Stein and (2) Catholic personalists, the Mauritains, Mounier & Marcel. Of course, both schools of thought heavily influenced the most significant philosopher of complementarity, Pope John Paul II. While JP2's complementarity is, of course, deeply enriched by his theology of the body, I argued that there's a need to elucidate the philosophical, as well as the theological, arguments for complementarity, if we want to make the concept more accessible to non-Catholic Christians and secular feminists.
I also tried to develop more concretely what JP2 thought the complementarity means for the development of the "new feminism" that he challenged women to pursue, and why he thought that "new feminism" was particularly necessary for the transformation of culture to support life. I argued that many of the goals of "new feminism" and many of the issues JP2 suggested were the particular province of the "genius of women" were the same sorts of issues that are the logical subjects of much of Christian legal theory. I suggested that the list of topics identified in paragraphs 32 and 33 of Ex Corde Ecclesia as of particular concern to Catholic Universities might identify the core issues for both Christian legal theory and the new feminism.
I also threw in a couple of observations about the topic of mutual obsession by Susan and me these days -- the need to rehabilitate the image of Mary as an empowered icon of feminism and the need to explore the ways in which Mariology could enrich Christian legal theory.
The dialogue between Susan and our fellow panelist Marie Failinger, who presented a stirring Lutheran critique of secular feminist legal theory, was really exciting. It provided just a glimpse of what I expect we're going to see at the upcoming University of St. Thomas Law Journal symposium on "Restructuring the Workplace to Accommodate Family Life" in Minneapolis on March 16. That conference is going to continue the dialogue between feminists approaching these issues from the faith perspective -- like Susan, Marie, and Sr. Prudence Allen -- and feminists approaching them from the secular perspective -- like Joan Williams of UC Hastings, Kathy Baker of Chicago Kent, and Michael Selmi of George Washington. And we're going to be addressing more general workplace barriers to family life, like immigration laws (Michael Scaperlanda) and effects of poverty on the working poor (Gregory Acs of the Urban League) and family wage (Allan Carlson of the Howard Center for Family, Religion and Society). It's going to be great. Save the date. I'll post further details as soon as we have them on our website.
Lisa
Thoughts about Amniotic Fluid
What a rather extraordinary conjunction of two amniotic fluid-related news items over the past week. On the one hand, we have the disturbing news of the American College of Obstetricians and Gynocologists' new recommendations that all pregnant women, regardless of all age, undergo prenatal testing (including amniocentesis, if they choose) to help prevent the public health tragedy of letting a baby with Down Syndrome slip through alive into this otherwise perfect world of ours. On the other hand, we have the enouraging news about amniotic fluid as a possible source of stem cells every bit as filled with medical potential as those hitherto only obtainable by the destruction of embryos.
With respect to the first news item, I wonder if it is really newsworthy. I don't know if this was just because the fact that I was a lawyer was noted in my medical files, but prenatal testing was strongly encouraged in all my pregnancies, including the ones I experienced before the age of 35. I'd be curious to hear what kind of experiences the rest of you (or your wives) had in that regard. I suppose what is most revolutionary about this new proposal is that it is supposed to be less directive about the type of testing offered younger or older women, presumably leading more younger women to have the more invasive (and potentially harmful to the fetus) amniocentesis rather than the less invasive blood tests. But, honestly, I have rather mixed feelings about that, too. The blood tests provide only statistical probabilities that the baby has various conditions; I often wonder how many abortions are performed based on a wrong bet about those statistics. At least the results of amniocentesis are conclusive.
And with respect to the risks posed by amniocentesis, doesn't this wonderful news about amniotic fluid as the possible source of pluripotent (AND genetically compatible) stem cells provide compelling incentive to work on medical procedures to minimize the risks inherent in the extraction of amniotic fluid?
(In the interests of full disclosure -- I did choose to undergo amniocentesis before the birth of my third child, based on noninvasive blood tests that indicated a high probability that he had Down Syndrome. The amnio revealed that he did. He does. He's wonderful. I did not choose to undergo amniocentesis before the birth of my fourth child. At that time, we didn't feel anything we might learn about her before she was born would be worth any sort of risk. And in the interests of further disclosure, as I've argued elsewhere (here and here), although I think the knowledge that can be obtained by prenatal testing can be positive and useful, I deplore the genocidal intent that motivates most prenatal testing.)
Lisa
UPDATE: The news gets better and better. Carter Snead tells me that the research regarding the derivation of pluripotent stem cells from amniotic fluid "also suggests that the same cells could be obtained from the placenta at birth, thus posing no risk to mother or child." It seems to me that the case for breeding and harvesting embryos for their stem cells gets weaker and weaker.
Screen 'em all
The American College of Obstetricians and Gynecologists now recommends that all pregnant women undergo screening for Down syndrome, regardless of age. (HT: Open Book) The New York Times reports:
In explaining the new recommendation, several physicians said the cutoff age of 35 had always been somewhat arbitrary. “Many women are unhappy with it, because it doesn’t mean anything to them; it’s kind of being put upon them,” said Dr. James Goldberg, a former chairman of the obstetrics college’s committee on genetics, who helped develop the new guidelines.
For example, Dr. Goldberg said, a 29-year-old woman and her partner might now choose amniocentesis instead of a blood test. In the past, the more invasive procedure was seldom recommended for younger women because it could sometimes result in miscarriage. Now the risk is considered to be quite low, and in any event, Dr. Goldberg said, for some couples “losing a normal pregnancy secondary to the procedure is not as problematic as the birth of a Down syndrome child, so they’re willing to take that risk.”
Even the March of Dimes is on board:
“The new guidelines are much better for the broader group of women who are having babies,” said Dr. Nancy Green, the organization’s medical director, “and that’s public health: doing the most good for the biggest number, the good in this case being the information people need to make decisions.”
Who could oppose giving people information needed to make "decisions?" And at least she's refreshingly candid in offering a utilitarian definition of "public health." "The most good for the biggest number" works great unless you happen not to be included in "the biggest number," in which case the public health doesn't require the public to give any consideration to your good.
The Sin of Aquafina
By contributing to water's privatization, does drinking bottled water ignore our obligation to practice solidarity with the poor?
Tuesday, January 9, 2007
Harvard and Benedict in the Dock
It's not often that Pope Benedict and Harvard University stand accused as accomplices in a scheme to overemphasize the importance of faith to reason. This op-ed in the Chronicle of Higher Education does so, focusing on the Pope's Regensburg speech and Harvard's (now abandoned) proposal to include religion in the core curriculum. Here's an excerpt:
Of course one may attempt to apply reason to the study of faith, as the pope remarked. Because of my own efforts to defend science against religious attacks, I have had the opportunity recently to learn a tremendous amount from distinguished theologians. For example, I find fascinating the intellectual machinations that the Roman Catholic Church has used to accept historical facts associated with the evolution of life and, at the same time, to insist that the facts are consistent with a divine plan and free will.
But such analyses are esoteric at best. Why should college students or the religious faithful be held accountable for connecting reason and faith when reason is as irrelevant to the experience of religious faith as it is to, say, romantic love? As the French have known since Blaise Pascal's day, nearly four centuries ago, "the heart has its reasons which reason does not know."
It is true that religious faith has profoundly affected human history, and that students need to understand the role of religion in both the past and the present — for example, its impact on current American politics. But if Harvard feels that its graduates need such knowledge, should the university not expect them to get it through required courses in world or American history?
Steven Pinker, a professor of psychology at Harvard, voiced similar concerns in The Harvard Crimson shortly after the Task Force on General Education released its report. Religious faith may have been a powerful historical force, but, Pinker argues, "so are nationalism, ethnicity, socialism, markets, nepotism, class, and globalization. Why single religion out among all the major forces in history? ... For us to magnify the significance of religion as a topic equivalent in scope to all of science, all of culture, or all of world history and current affairs, is to give it far too much prominence. It is an American anachronism."
Bainbridge on Minimum Wage
THat IS a very interesting comment thread over at ProfBainbridge, and well worth reading. I have a nit to pick, though, with the nit Stephen is picking with the Nit Picker (you'll have to go to his site to understand that line). Stephen takes issue with the minimum wage on the following ground: "By setting a floor below which employers may not go, the minimum wage fails the just wage condition of individual determination." It's true that the Catechism says that in determining what is a "fair" or "just" wage, there must be an individual determination, and I think it is plausible that, as Stephen obsreves, a college student working for beer money might be entitled to less of a wage than a father of two working to put food on the table. But that does not mean, that, as he puts it, "the minimum wage fails the just wage condition of individual determination."
This might only be true if you thought that (1) the floor and the ceiling of the just wage calculation could be determined with precision such that paying someone any more than their just minimum would be an injustice to the employer AND (2), assuming the first to be true, the state intended to do an injustice in the case of the overpaid college student rather than accepted the overpayment as an unintended side-effect of its efforts to ensure the just compensation of the father of two. Law can never perfectly track the demands of justice, but that does not mean that we can't have any laws. In other words, I think Stephen is conflating the need for a case by case determination of the JUSTICE of a particular wage with the state's legitimate need to operate on the basis of generalities when constructing prospective legislation that it intends to operate to eliminate injustice in the wage market.
We can all think of exmaples of situations in which the minimum wage might indirectly contribute to injustice (in both directions, since there will also be cases where someone's needs are GREATER than what a realistically state-imposed minimum wage could provide without, say, damaging the labor market and leading to a great deal of unemployment). But, confronted by the even graver injustice of the laissez faire labor market, the state is permitted to do the best that it can in combatting wage injustice, even to the point of formulating a compromise, best-guess minimum wage that overpays a few and underpays a few others but does justice in the vast majority of cases. Clearly, the state cannot do it all through the minimum wage. The minimum wage is, after all, just one tool in the quiver, and, for that matter, the state cannot be expected to perfectly guarantee economic justice. The state will, however, have other ways to make provision for those who are underpaid, minimum wages notwithstanding. But the minimum wage is certainly one of the state's key tools, and I do think it's incorrect for Stephen to suggest that its generality somehow runs afoul of the Catechism's teaching on just wages. (I understand that Stephen brackets the question of whether CST calls for a minimum wage and is more interested in taking apart the Nit Picker's argument, but he does so by arguing that a minimum wage law violates the Catechism's teaching on just wages, and so he seems to be answering the question he brackets or at least pointing to an apparent inconsistency within CST. I, on the other hand, see no inconsistency; not even a tension.)
I do agree with Stephen's complaint that the Catechism passage cited by the Nit Picker does not do the work the NitPicker says it does: that is, it does not, by itself, rule out Catholic opposition to the minimum wage. But I think that at least some of that work is done by the many, many magisterial statements over the years on the insufficiency of the unregulated market in this area and the responsibility of the state to work for economic justice. Here, for example, is what the Pius XI said about unregulated markets in Quadragesimo Anno:
"[T]he right ordering of economic life
cannot be left to a free competition of forces. For from this source,
as from a poisoned spring, have originated and spread all the errors of
individualist economic teaching."
And:
"But free competition, while justified
and certainly useful provided it is kept within certain limits, clearly
cannot direct economic life - a truth which the outcome of the
application in practice of the tenets of this evil individualistic
spirit has more than sufficiently demonstrated. Therefore, it is most
necessary that economic life be again subjected to and governed by a
true and effective directing principle."
And:
"Free competition, kept within definite
and due limits, and still more economic dictatorship, must be
effectively brought under public authority in these matters which
pertain to the latter's function. The public institutions themselves,
of peoples, moreover, ought to make all human society conform to the
needs of the common good; that is, to the norm of social justice."
More specific to the minimum wage in the U.S. context, the US Bishops in Economic Justice for All said that:
Because work is this important, people have a right to employment. In return for their labor, workers have a right to wages and other benefits sufficient to sustain life in dignity. As Pope Leo XIII stated, every working person has "the right of securing things to sustain life" [56]. The way power is distributed in a free market economy frequently gives employers greater bargaining power than employees in the negotiation of labor contracts. Such unequal power may press workers into a choice between an inadequate wage or no wage at all. But justice, not charity, demands certain minimum wage guarantees. The provision of wages and other benefits sufficient to support a family in dignity is a basic necessity to prevent this exploitation of workers. The dignity of workers also requires adequate health care, security for old age or disability, unemployment compensation, healthful working conditions, weekly rest, periodic holidays for recreation and leisure, and reasonable security against arbitrary dismissal [57]. These provisions are all essential if workers are to be treated as persons rather than simply a "factor of production." . . .
In recent years the minimum wage has not been adjusted to keep pace with inflation. Its real value has declined by 24 percent since 1981. We believe Congress should raise the minimum wage in order to restore some of the purchasing power it has lost due to inflation.
Law and Christian Feminism
I've been meaning to say something about Saturday's Lumen Christi program in D.C. since I returned home Sunday morning, so I was glad to see Rick's post on the subject. The entire day was energizing.
I participated in a panel entitled Law and Christian Feminism, that also included presentations by Lisa Schiltz and Marie Failinger. Marie brought what she describes as a "Luteran sort-of-feminist perspective, whereas Lisa and I both speak as Catholics.
My talk had two parts. The first was an exploration of what a Catholic Feminist Legal Theory can contribute to discussions of the law that is unique and different from the contributions of secular feminist theory. The second was a discussion of some of the challenges articulation of a Catholic Feminist Legal Theory faces. As to the first, CFLT brings to the table (1) a different understanding of he nature of the human person than that underlying secular feminist thought (that is, an understanding of the human being as relational by nature, and not by choice); (2) a different understanding of sex and gender; and (3) the benefits flowing from viewing God through feminine eyes. As I continue to develop these three themes in my writing, I will also explore particular legal issues on which CFLT has something important to contribute.
I also spent some time talking about the challenges to articulation of a CFLT, that is, those things that need to be addressed in order for non-Catholics to take seriously a CFLT. The four I identified and spoke briefly about are (1) the exclusion of women from certain positions in the Church, specifically the question of ordination; (2) the Church's position on contraception; (3) the historical narrative of subordination of women; (4) a misportrayal of Mary.
I hope Lisa will add some comments about her talk, which included a wonderful discussion of complementarity and why it is significant for non-Catholics, men and secular feminists as well as for Catholic women.
Congrats to Lumen Christi
This past Saturday, the annual Lumen Christi / Christian Law Professors' Fellowship conference was -- once again -- the highlight of "AALS week." MOJ-folks -- Patrick Brennan, John Breen, Lisa Schiltz, Susan Stabile -- were invaluable contributors.
Patrick's talk, in the context of a panel on the nature and future of Christian legal scholarship, explored -- among other things -- the way great legal scholars like Mary Ann Glendon and John Noonan have served as Christian legal scholars not so much by treating Christianity as a "theory of everything," but simply by example. John Breen offered a spirited critique of the Skeel / Stuntz argument against legal moralism in the context of abortion regulation. Susan Stabile and Lisa Schiltz -- 2/3 of a fabulous panel on Christian feminism-- really did "Catholic legal theory," exploring the potential contributions to feminism and feminist theory of Pope John Paul II's work and Catholic anthropology.
There's a lot more to be said about these (and others') talks at the conference. Take it away, friends . . . .
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