Civil society is built on the right of association, which is inseparable from the right to exclude. Sometimes the decision to exclude is based on high-minded ideals and core moral convictions; sometimes it's not.
Saturday, February 24, 2007
The Delta Zetas: Defenders of Subsidiarity!
The Jurisprudential Implications of the Anna Nicole Case
It's no simple task to link Catholic legal theory and Anna Nicole Smith, but here goes: Legal Realism has helped us discern the human dimension of a judge's decision-making, and at least one thoughtful scholar has recently called for judges' own values to "reenchant" the law. Can we all agree that Judge Larry Seidlin's handling of the Anna Nicole case provides the most compelling case yet for a return to formalism?
Culture Watch: The New Tupperware Party
It's been interesting to watch strip clubs and the rest of the "adult entertainment" industry go from shady and disreputable to mainstream and acceptable. (Is there any sitcom that has not featured a "visit to the strip club" episode?) Now, apparently, our fascination with strippers has spawned a new cultural phenomenon: pole dancing parties. I'll be the first to acknowledge the warped view of gender and sexuality reflected in a previous generation's expectation that women's social lives could flourish around the quest to keep leftover food fresh. But I'm not sure that this is an improvement.
Thursday, February 22, 2007
Religious Freedom Based on Equality?
I've posted on SSRN a draft book review, forthcoming in the Texas Law Review, of the new book by Chris Eisgruber (provost at Princeton) and Lawrence Sager (dean at Texas), Religious Freedom and the Constitution -- a book that I think is quite impressive even though mistaken in several ways. From the review abstract:
Eisgruber and Sager are the most sophisticated proponents of an approach to the Religion Clauses that emphasizes equality and nondiscrimination as opposed to any distinctive substantive liberty or autonomy in religious matters. . . . The book is commendable because, among other things, it confronts the central problem for an equality-based theory of religious rights: how to square it with the special treatment of religion reflected in a good deal of constitutional case law, in widely held intuitions, and in the very fact that the First Amendment contains two clauses singling out religion for concern - one of which, the Free Exercise Clause, speaks by its terms of freedom rather than equality.
This essay argues, however, that Eisgruber and Sager fail to show that special treatment of religion can be explained as nondiscrimination without reference to religious autonomy. Thus, although their theory generates many normatively attractive results - offering, for example, a rationale for potentially strong protection of free exercise rights - they can only generate them by surrendering a focus on equality and nondiscrimination. I first argue that Eisgruber and Sager cannot give religious liberty the robust protection they claim without giving it more protection than some deeply felt nonreligious reasons for acting, and without showing some special concern for religious autonomy. I next turn to the special limits that Eisgruber and Sager reaffirm on government assistance to religion - especially government expression of religious sentiments - and conclude that Eisgruber and Sager cannot defend these special Establishment Clause limits and still object to giving exemptions to religious exercise but not secular beliefs. Finally, I discuss the primary alternative to an equality-based theory - the principle that government should respect and promote the choices of individuals and groups in religious matters - and present a brief case for it, both affirmatively and in response to Eisgruber and Sager's criticisms.
Tom
Equality, Privacy, and Roe
Yale law prof Jack Balkin argues that, in light of rapidly expanding genetic technology, it is important to interpret Roe as being grounded in gender equality rather than reproductive privacy. Here's an excerpt:
If Roe is about reproductive choice in the abstract, about the rights of people to reproduce (or not reproduce) without interference from the state, future litigants will demand that courts insulate new reproductive technologies from regulation on the grounds that individuals should be free to have children by any means that science permits. Currently, there is no clear boundary that makes a generalized right to reproductive autonomy inapplicable to new reproductive technologies like cloning or genetic engineering. One might argue that only traditional methods of reproduction are protected, but such arguments may be unavailing precisely because the technology never existed before. The question will be whether the privacy principle applies in the new technological context, just as courts have asked whether the free speech principles apply to the Internet, or whether the Fourth Amendment's prohibition against unreasonable searches applies to infrared sensors directed at people's homes. Nor can we easily draw lines between "natural" methods of reproduction protected by the right to privacy and technologically assisted methods that are not. By now, the process of reproduction for many couples is thoroughly imbued with various forms of medical and technological assistance, including fertility clinics and in vitro fertilization. Assuming for the moment that the right to reproduce extends to using fertility clinics and in vitro fertilization, it will be difficult for courts to draw lines. The privacy interpretation of Roe may have a stopping point, but it may not be the one we now imagine, or it may simply be unprincipled and ad hoc.
New York Times Online
February 22, 2007, 11:38 am
Senator John McCain calls himself a “Teddy Roosevelt Republican,” and both Rudolph W. Giuliani and Mitt Romney, the other perceived frontrunners for the G.O.P. nod, have tried to tie themselves to Ronald Reagan.
Sam Brownback (Photo: Charlie Riedel/Associated Press)But the latest comparison might be a bit of a head-scratcher for most, especially those who don’t identify as evangelicals.
Senator Sam Brownback: William Wilberforce Republican.
If you don’t know who he is, never fear—Hollywood is coming to the rescue with Friday’s release of “Amazing Grace.” The film details Mr. Wilberforce’s successful, 20-year effort as a British member of parliament to abolish the slave trade in the British Empire. He was inspired by his evangelical Christian beliefs. And Mr. Brownback, a devout Catholic who was previously an evangelical Protestant, “is deeply inspired by William Wilberforce,” said Brian Hart, his campaign spokesman.
A March 2006 article in The Economist first named Mr. Brownback a “Wilberforce Republican,” referring to his faith-grounded efforts to end human trafficking, fight genocide and AIDS in Africa and to reform prisons.
The Kansas senator is running with the association. Last Thursday, he introduced a bill to honor the British abolitionist, and on Friday, he’ll participate in a panel discussion following a screening of “Amazing Grace” in Los Angeles.
“We must continue to follow Wilberforce’s example and fight for the
dignity and freedom of every person,” Mr. Brownback said in a press
release about the bill. “It is intolerable that 200 years after Britain
banned its slave trade, there are still hundreds of thousands of
victims of human trafficking who are used as bonded labors, sex slaves,
and in other horrifying capacities.”
“This will help him in the sense that Senator Brownback comes across as this sweet gentleman, but here he is saying forthrightly, ‘I am a conservative on many issues, but I’m also for the downtrodden and the oppressed,’” said Michael Cromartie, vice president of the Ethics and Public Policy Center, a Washington think tank. “Claiming the mantle of Wilberforce this early on and around the time of this movie is all to the good, and now the others who are doing it will be following him.”
Other social conservatives, such as Mike Huckabee, the former Arkansas governor, wouldn’t be the only ones to potentially follow Mr. Brownback. Mr. Wilberforce is familiar to evangelicals (i.e. Republican voters in the Iowa caucuses and South Carolina primary) because people like Charles Colson and James Dobson mention him on their radio shows, said Mr. Cromartie. But he’s also “invoked all the time” at Capitol Hill prayer meetings attended by a diverse group that includes Mr. Brownback and Senator Hillary Rodham Clinton. Plus, as an abolitionist, Mr. Wilberforce would have appeal to potential supporters of the Democratic candidates as well.
“I see him as somebody who could be claimed by anybody but someone with business interests,” said Mr. Cromartie, because big British business wanted to keep the slave trade alive. Indeed, sponsors of “Amazing Grace” include Mr. Dobson’s Focus on the Family, Sojourners, a liberal evangelical group, and Wilberforce University, a predominantly black school in Wilberforce, Ohio.
Joseph Loconte, a senior fellow at E.P.P.C. who wrote an op-ed in Wednesday’s Los Angeles Times calling for contemporary politicians to follow Mr. Wilberforce’s example with a faith-based approach to human rights, wrote in an email to The Times that it is fair to call Mr. Brownback a “conviction politician” in the Wilberforce vein.
But, he continued, it won’t necessarily help him in his presidential bid:
Americans don’t normally vote for a presidential candidate because they want a great social reformer (think about the failed presidential bids of Democratic contender William Jennings Bryan). In post-9/11 America, they probably want a leader who understands the deepest threats to our national security–the existential threat of radical Islam, for example–and what to do about them. Anyone seeking the presidency now is going to have to persuade Americans that he, or she, is the best person to take on this task.
Benedict on the Law
Last week Pope Benedict addressed the participants who gathered at the International Congress on Natural Law convened here in Rome. The English translation of his addressed delivered in Italian is [HERE]. Interestingly, the Holy Father began his address by discussing topics he has examined earlier that deal with the problems presented by the fragmentation of knowledge tolerated by some intellectuals. In the context of the law, he stated that rules and the structure of law and legal systems need to be understood in the context of their human application. Thus, it is essential for the Pope that the law never be divorced from the ethical messages that it must contain and advance. While the empirical study of humans and the political and legal institutions that they establish is important, the work of those involved with the examination of law must not forget the vital role of the metaphysical. There are transcendent values essential to the law that need to be taken into account; if these are absent from the work of those involved with the study or the making of the law, there is not anything to preclude the lawmaker, or anyone else for that matter, from relying upon nothing but the will of the lawmaker or those special interests influencing the lawmaker. The touchstone needed is the moral, natural law that provides the necessary ethical imperatives that guard against the reign of pure positivism. In this regard, those who make the law need to be mindful of the danger presented by political compromises that take no account of these ethical imperatives, which guarantee the protection of all, not just some members of society. For those of us interested in Catholic Legal Theory, the Pope’s address—and, I am sure, his future elaborations of it—will continue to be an important source for our study, thought, teaching and writing. RJA sj
Wednesday, February 21, 2007
At the heart of liberty
This is an excerpt of Zenit’s translation of Benedict XVI’s Wednesday audience today. Liberty
“Dear Brothers and Sisters: St. Augustine St. Augustine
…
Lent is an opportunity to "be" Christians "again," through a constant process of interior change and of progress in knowledge and love of Christ. Conversion never takes place once and for all, but is a process, an interior journey of our whole life. Certainly this journey of evangelical conversion cannot be limited to a particular period of the year: It is a journey of every day which must embrace our whole existence, every day of our lives.
… Lent is the appropriate spiritual season to train with greater tenacity in the search for God, opening the heart to Christ.
…This conversion of the heart is above all a free gift of God, who created us for himself and has redeemed us in Jesus Christ: Our happiness consists in remaining in him (cf. John 15:3). For this reason, he himself anticipates our desire with his grace and supports our efforts of conversion.
But what does conversion really mean? Conversion means to seek God … to be converted is not an effort to fulfill oneself, because the human being is not the architect of his own destiny. We have not made ourselves. Therefore, self-fulfillment is a contradiction and is too little for us. We have a higher destiny.
We could say that conversion consists precisely in not considering ourselves "creators" of ourselves, thus discovering the truth, because we are not authors of ourselves. Conversion consists in accepting freely and with love that we depend totally on God, our true Creator, that we depend on love. This is not dependence but liberty. …
A good Lent to all!”
Benedict XVI on Lent 2007
MESSAGE OF HIS HOLINESS
BENEDICT XVI
FOR LENT 2007
“They shall look on Him
whom they have pierced” (Jn 19:37)
Dear Brothers and Sisters!
“They shall look on Him whom they have pierced” (Jn 19:37). This is the biblical theme that this year guides our Lenten reflection. Lent is a favourable time to learn to stay with Mary and John, the beloved disciple, close to Him who on the Cross, consummated for all mankind the sacrifice of His life (cf. Jn 19:25). With a more fervent participation let us direct our gaze, therefore, in this time of penance and prayer, at Christ crucified who, dying on Calvary, revealed fully for us the love of God. In the Encyclical Deus caritas est, I dwelt upon this theme of love, highlighting its two fundamental forms: agape and eros.
For the rest, click here.
Forced Abortion
Minors have no “right to choose” life in Catholic nation
By Peter J. Smith
TURIN, Italy, February 19, 2007 (LifeSiteNews.com) - An Italian judge ordered a 13 year-old girl to undergo an abortion, despite the girl's pleas to let her keep her child reports the Italian news agency, La Stampa.
The girl, Valentina, had become pregnant by her 15 year-old boyfriend, however rather than let her choose to keep her child, her parents demanded she have an abortion on the grounds that she was ruining her life by becoming a mother.
"You cannot hold this child ... you must abort, and father will never have to know,” Valentina's mother told her, saying that she did not have the money to support the child.
Despite Valentina's repeated attempts to make her parents understand she wanted to choose to keep her baby, the case went to the Court of Minors. Judge Giuseppe Cocilovo then issued the ruling to abort Valentina's child.
Under Italian law, a minor may not decide whether to keep or abort her child, and may be forced by her guardians or parents to undergo an abortion.
However, the abortion has meant nothing less than disaster for Valentina, who was confined to the psychiatric unit of Regina Margherita children's hospital in Turin after the abortion for wanting to commit suicide.
“You have made me kill, and now I kill myself, I kill myself”, cried Valentina. "I do not want here to be," Valentina repeated. "I am not crazy, I am only evil like a dog for what my parents and the judges have obliged to make to me."
HT: Kris Tate
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