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.

Thursday, March 15, 2007

Volunteering for execution

The term "death-row volunteer" probably sounds strange -- do people really "volunteer" to be on death-row? -- but, nonetheless, it describes reasonably accurately a not-insubstantial number of those convicted murderers who have been executed in the United States since 1976.  (For more detail on the death-row-volunteer issue, see this paper of mine from a few years ago.) 

Today, the indefatigable Howard Bashman reports, the en banc United States Court of Appeals ruled that Robert Charles Comer, who was sentenced to death in Arizona, was "competent" to waive further proceedings relating to his federal habeas corpus petition and that he had, in fact, "voluntarily" waived those proceedings.  In a nutshell, the Ninth Circuit ruled that, notwithstanding the possibility that legal errors had infected his capital-sentencing proceedings, Comer could prevent judicial correction of those errors by "volunteering" to be executed, in accord with his death sentence.  (The court rejected the argument, advanced by Comer's counsel -- who were arguing, obviously, against Comer's stated wish to volunteer -- that Comer's "volunteering" was the product of harsh prison conditions.)

What should we think about this case?  How should we think about death-row volunteers generally?

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Templeton Prize

Admirers of the Catholic philosopher Charles Taylor -- whose work on identity is essential to Catholic legal theory, in my view -- will be pleased to know that he has been announced as the recipient of this year's Templeton Prize.  (HT: Open Book)

The Future of Marriage

Yesterday's USA Today profiled David Blankenhorn, who has a new book coming out called The Future of Marriage.  Here's an excerpt from the article:

He may sound like a conservative Christian, but Blankenhorn says he's a liberal Democrat.  "I'm not condemning homosexuality. I'm not condemning committed gay relationships," he says. But "the best institutional friend that children have is marriage, and if grownups make a mess of it, the children are going to suffer."

Wednesday, March 14, 2007

Religious Illiteracy

For those interested in our conversation about teaching religion (see here, here, here), The Washington Post hosted an on-line debate this afternoon between Stephen Prothero and Barry Lynn over whether religion should be taught in public schools.

The effects of Liberation Theology

As we all know, the Liberation Theology movement -- or, some strands of the movement -- prompted some responses and corrections from the Magisterium.  I'm curious, though -- does anyone know of (or can anyone tell me where to look for) particular legal reforms that were put into place as a result of the witness and challenge of Liberation Theologians?

"Law and the Catholic Social Tradition"

I'm teaching a seminar this upcoming quarter (8 weeks) at the University of Chicago called "Law and the Catholic Social Tradition."  I'm very grateful to all those MOJ readers and bloggers who e-mailed suggestions about readings and structure.  (Although I wondered if any students would be interested, it appears that it will fill up.) 

Obviously, there are serious limits to what can be done in 8 weeks, and I'm sure there are tons of issues (e.g., the death penalty, abortion, environmentalism) that I'm missing.  I ended up trying to focus on themes rather than issues.  I ended up relying on the Compendium more than on particular encyclicals.  (Clearly, something is lost by doing this.)  And, I also tried, where appropriate, to incorporate both the "progressive" and "conservative" takes on the tradition, and to put them in conversation with each other (e.g., Bainbridge v. Sargent).  We'll see how it goes!  (Note:  This is still subject to change, so if you have suggestions, feel free to pass them on.)

If anyone is interested, the readings follow the jump . . .

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Reader Response re Canon Law and Marriage

I received the following response from MOJ reader Rob Driscoll to my post concerning Canon Law's recognition of ages 14 and 16 for females and males, respectively, as the age for a valid marriage:

"It seems to me that the case for the age differences (and youth) is two-fold.  First, to the extent that normal families are to emulate the Holy Family, we take into consideration that Mary was extremely young (13 or 14 I think is what most believe) while Joseph was not much older (16 – 18).  While in today’s society, maturity is put off far longer (sometimes I think it is not until people are in their 30’s!) it is still possible and conceivable for a young couple to marry at a young age, particularly in poorer societies and those which have a shorter life-span.  For prudential reasons I can see American or Western Bishops encouraging waiting until 18, but as a general matter it seems that 14 & 16 should form the “floor.”

Secondly, the difference in ages between the sexes (as opposed to one age for both men and women) seems to me to mirror the biological fact or tendency for women to mature earlier then men.  This is true in both their capacity to bear or conceive children (women go through puberty first) and their psychological/mental maturity.  It seems to me that women tend to mature a couple of years more quickly than men and are thus ready, both biologically and mentally, to bear children first.  Since the Church ties marriage to children, the disparity in ages between men and women makes sense."

Conscience at the Cash Register

Another skirmish in the conscience wars: some Muslim cashiers at Target are refusing to handle pork.  I think that this is a front-page story only because of recent controversies involving pharmacists, taxi drivers, and bus drivers.  The remedy here is simple -- as with underage cashiers faced with a customer purchasing alcohol, the cashier who cannot handle pork in good conscience can call over another cashier, or in the unlikely event that no other cashiers are on duty, ask the customer to scan the pork and place it in the grocery bag.  (It is more of a burden to ensure that more than one pharmacist is on duty, and customers obviously cannot help themselves to prescriptions.)  My general approach in this area is to allow employers some latitude to craft a conscience policy that keeps with their own institutional mission.  This example, though, shows the limits of that approach.  Unlike a pro-choice or pro-life pharmacy, it would be hard to discern an institutional mission that rises or falls on the requirement that cashiers handle all products.  The available accommodation is so easy that it would be reasonable, in my view, to infer that the employer simply did not want to be inconvenienced, not that it was pursuing a particular moral identity.

Allan Simpson Responds to Peter Pace

Washington Post
March 14, 2007

Bigotry That Hurts Our Military
By Alan K. Simpson

[The writer was a Republican senator from Wyoming from 1979 to 1997.]

As a lifelong Republican who served in the Army in Germany, I believe it is critical that we review -- and overturn -- the ban on gay service in the military. I voted for "don't ask, don't tell." But much has changed since 1993.

My thinking shifted when I read that the military was firing translators because they are gay. According to the Government Accountability Office, more than 300 language experts have been fired under "don't ask, don't tell," including more than 50 who are fluent in Arabic. This when even Secretary of State Condoleezza Rice recently acknowledged the nation's "foreign language deficit" and how much our government needs Farsi and Arabic speakers. Is there a "straight" way to translate Arabic? Is there a "gay" Farsi? My God, we'd better start talking sense before it is too late. We need every able-bodied, smart patriot to help us win this war.

In today's perilous global security situation, the real question is whether allowing homosexuals to serve openly would enhance or degrade our readiness. The best way to answer this is to reconsider the original points of opposition to open service.

First, America's views on homosexuals serving openly in the military have changed dramatically. The percentage of Americans in favor has grown from 57 percent in 1993 to a whopping 91 percent of 18- to 29-year-olds surveyed in a Gallup poll in 2003.

Military attitudes have also shifted. Fully three-quarters of 500 vets returning from Iraq and Afghanistan said in a December Zogby poll that they were comfortable interacting with gay people. Also last year, a Zogby poll showed that a majority of service members who knew a gay member in their unit said the person's presence had no negative impact on the unit or personal morale. Senior leaders such as retired Gen. John Shalikashvili and Lt. Gen. Daniel Christman, a former West Point superintendent, are calling for a second look.

Second, 24 nations, including 12 in Operation Enduring Freedom and nine in Operation Iraqi Freedom, permit open service. Despite controversy surrounding the policy change, it has had no negative impact on morale, cohesion, readiness or recruitment. Our allies did not display such acceptance back when we voted on "don't ask, don't tell," but we should consider their common-sense example.

Third, there are not enough troops to perform the required mission. The Army is "about broken," in the words of Colin Powell. The Army's chief of staff, Gen. Peter Schoomaker, told the House Armed Services Committee in December that "the active-duty Army of 507,000 will break unless the force is expanded by 7,000 more soldiers a year." To fill its needs, the Army is granting a record number of "moral waivers," allowing even felons to enlist. Yet we turn away patriotic gay and lesbian citizens.

The Urban Institute estimates that 65,000 gays are serving and that there are 1 million gay veterans. These gay vets include Capt. Cholene Espinoza, a former U-2 pilot who logged more than 200 combat hours over Iraq, and Marine Staff Sgt. Eric Alva, who lost his right leg to an Iraqi land mine. Since 2005, more than 800 personnel have been discharged from "critical fields" -- jobs considered essential but difficult in terms of training or retraining, such as linguists, medical personnel and combat engineers. Aside from allowing us to recruit and retain more personnel, permitting gays to serve openly would enhance the quality of the armed forces.

In World War II, a British mathematician named Alan Turing led the effort to crack the Nazis' communication code. He mastered the complex German enciphering machine, helping to save the world, and his work laid the basis for modern computer science. Does it matter that Turing was gay? This week, Gen. Peter Pace, chairman of the Joint Chiefs, said that homosexuality is "immoral" and that the ban on open service should therefore not be changed. Would Pace call Turing "immoral"?

Since 1993, I have had the rich satisfaction of knowing and working with many openly gay and lesbian Americans, and I have come to realize that "gay" is an artificial category when it comes to measuring a man or woman's on-the-job performance or commitment to shared goals. It says little about the person. Our differences and prejudices pale next to our historic challenge. Gen. Pace is entitled, like anyone, to his personal opinion, even if it is completely out of the mainstream of American thinking. But he should know better than to assert this opinion as the basis for policy of a military that represents and serves an entire nation. Let us end "don't ask, don't tell." This policy has become a serious detriment to the readiness of America's forces as they attempt to accomplish what is arguably the most challenging mission in our long and cherished history.

Defending the Survey Approach

When you make sweeping pronouncements about the value of a survey-of-religions course, you can probably expect a response from someone who teaches the survey-of-religions course.  Patrick O'Donnell does not disappoint in that regard, offering a long and thoughtful email detailing his method.  He first emphasizes the importance of "bracketing":

[I was taught that] one could learn about religions, learn interesting, meaningful, important things about religious traditions in a manner that is descriptively true and phenomenologically rich while temporarily 'bracketing' one's own religious and/or philosophical worldview in the sense that one withholds (value) judgments and questions of truth insofar as same might interfere with an accurate portrayal of the religion(s) under question. In Ninian Smart's words, 'it is such bracketing that lies, methodologically, at the heart of the modern study of religion. The jargon is drawn from Husserl, but the practice and message differ from his. The practice, which is somewhat dialectical, involves trying to present the beliefs, symbols and activities of the other...from the perspective of the other. The presuppositions, feelings and attitudes of the explorer of the other's world must be bracketed out as far as possible. That is, we should not bring external judgments to bear upon the other's world.' After all, 'our views are not facts about them [say, Buddhist, Muslims, Confucians, etc.], but facts about us.' Judgments and questions of truth are not dismissed, however, for 'Later, when we have found out what Buddhist Buddhism is we can shape our own [views about this tradition].'

He notes that such bracketing "is perfectly compatible with students learning some of the intra-traditional resources for possible normative critiques of views and practices within a particular tradition."  He also challenges the suggestion that immersion in a comprehensive worldview is necessary to provide an authentic taste of the religion:

We study religions as 'ideal-types' because, after all, if we are honest with ourselves, it behooves us to acknowledge that virtually any worldview held by an individual (what I would term, after Habermas, a "lifeworld") is more or less a motley: 'There is not Calvinism in Scotland, but there is Scottish Calvinism (or there was!).' That is to say, 'Critical analysis will suggest that we tend to live in a certain amount of aporia. Do we, when it comes to the crunch, really have a systematic worldview? We have an amalgam of beliefs, which we may publicly characterize in a certain way. I may say that I am an Episcopalian, but how much of my real worldview corresponds to the more or less official views of the Episcopal Church? How much in any case is left out by an "official worldview" which tells me nothing directly about cricket, being Scottish, having a certain scepticism about nationalism, thinking that there is life on other worlds, shelving the problem of evil or other matters. Our values and beliefs are more like a collage than a Canaletto. They do not even have consistency of perspective' (quoting Ninian Smart).