Michael notes that, according to Jeff Toobin, Sen. McCain's recent speech on judges and constitutional interpretation reveals that he (the Senator) is being advised by "extrem[ists]." In answer to Michael's question, I plead "guilty" to having a different view of the Court's role and work than the view held by Jeff Toobin. Unfortunately, in Mr. Toobin's world (and in the world inhabited by not-a-few others commentators and Judiciary Committee members), "extreme" is defined as "disagrees with me." (To paraphrase David Lee Roth, "I don't *feel* 'extreme'.")
Wednesday, May 21, 2008
"Extremism": Answer to Michael
Tuesday, May 20, 2008
Conference on Catholic Legal Thought: Seattle U. May 28-30
This is a reminder to Catholic law professors interested in attending the 3rd annual meeting of the Conference on Catholic Legal Thought to be held May 28-30 (next week) at the Seattle University School of Law. Please feel free to submit a registration form if you are interested in attending. Also, anyone interested in presenting a work in progress related to Catholic legal thought, please email me at [email protected]. Complete information can be found at http://www.law.seattleu.edu/news/archive/2008/summerinstitute?mode=standard.
McCain's "extremist" advisors
In a New Yorker article entitled “McCain’s Court,” Jeffry Toobin writes “Senator [McCain] has long touted his opposition to Roe, and has voted for every one of Bush’s judicial appointments; the rhetoric of his speech [on the judiciary] shows that he is getting his advice on the Court from the most extreme elements of the conservative movement.” If I am not mistaken Toobin is labeling our own Rick Garnett, along with MOJ friends Robby George and Gerry Bradley and other distinguished members of McCain’s “Justice Advisory Committee,” as extremists. Rick, how do you plead?
Senator Ted Kennedy
[from the NYTimes online.]
May 20, 2008, 3:57 pm
Kennedy’s Sanctum
Even a conservative like Jim Geraghty of National Review is driven to pay tribute to Ted Kennedy upon hearing the news that the Massachusetts senator has been diagnosed with a malignant brain tumor.
Geraghty writes of visiting Kennedy’s Senate office: “It’s like a museum of the second half of the last century. You name a major political issue in the past four decades, and chances are Ted Kennedy had a central role in it.”
A reader response to: Why Should a Catholic Vote Against Same-Sex Marriage (in 2038)?
A friend of MOJ, Professor Scott FitzGibbon of Boston College Law School has sent me the following response to Rob’s posting on the matter “Why Should a Catholic Vote Against Same-Sex Marriage (in 2038)?” Here is Scott’s response:
Professor Vischer presents, for the year 2038, an imagined future in which legally recognized same-sex marriage has been prevalent for a while and children have been raised in such situations. By then, studies have “established to a reasonable degree of certainty” that various bad outcomes have not transpired. Notably:
children raised in households headed by same-sex couples are indistinguishable from children raised in traditional households in terms of emotional and intellectual development, rates of physical and sexual abuse, self-esteem, and other measures of well-being.
Why not then, asks Professor Vischer, go ahead and legalize SSM in a remaining non-SSM jurisdiction?
All of this stands to suggest the possibility—never quite stated by Professor Vischer—that today in 2008, opposition to legal recognition rests on some suppositions about outcomes which might eventually prove to be unfounded. But the case against legal recognition of same-sex marriage rests on firmer ground that this line of thought suggests.
First, Professor Vischer’s hypothetical outcomes are highly unlikely actually to occur, or so we can predict based on common sense and strong indirect evidence. The likelihood is remote that children will be “indistinguishable” who are raised in sharply distinguishable parenting situations. Social science establishes, what common sense would in any case suggest, that childrens’ characters are formed on a basis of “modeling” on their parents. Girls raised by two men have no close model of the feminine. Boys raised by two women have no close model of the masculine. Girls raised by two women have no close model of how a woman conducts an intimate affiliation with a man. Boys raised by two men experience a similar privation. It should also be noted that same-sex couples break up at a higher rate than the average (even, as a 2007 study by Andersson et al. indicates, in Norway and Sweden where legal recognition is established). Divorce is associated with numerous well-documented adverse effects on child development.
Professor Vischer’s hypotheticals speak to studies of “children.” What about outcomes once they have reached adulthood? One major effect concerns their own marriages and other procreative affiliations. Judith Wallerstein (The Unexpected Legacy of Divorce (2000)) reports:
A central finding of my research is that children identify not only with their mother and father as separate individuals but with the relationship between them. They carry the template of this relationship into adulthood and use it to seek the image of their new family.
Most offspring will grow up to attempt stable procreative opposite-sex affiliations rather than same-sex ones. Those brought up by same-sex couples lack the necessary template.
A further point looks beyond outcomes in parenting and notes the discontinuity which arises when the law defines marriage in one way and the social and moral order of the society to which the law applies thinks and speaks in a divergent fashion. A striking example is afforded by an Ontario statute which defines the term “spouse” to include “either of two persons who . . . live together in a conjugal relationship outside marriage.” A sort of cognitive dissonance must emerge when people, asked whether they are married, must say “yes” according to one normative order, “no” according to another; “yes” according to the law of one state, “no” according to the law of many countries; “yes” according to the definitional portions of the university’s married student housing brochure (reflecting the requirements of anti-discrimination law), “no” according to their brothers and sisters; “yes” according to their law professors, “no” according to their parents. Confusion is spread within an institution which is already badly troubled, to the disadvantage of marriage and the family generally.
Of course Professor Vischer might amend his hypothetical and add the supposition that by the year 2038 same-sex marriage has become traditional and orthodox nor just as a matter of U.S. law, but internationally, and not just as a matter of law, but of social and religious morality as well. But such a supposition seems most unlikely to be realized. Orthodox Judaism, Eastern Orthodox Christianity, Islam, and the familial morality of societies more conservative than those which spring from Northern European backgrounds are not likely to move in that direction.
Looking into a crystal ball which displays events in Rome, for example, we discern Pope John Paul III in 2038, approving the words of the Congregation for the Doctrine of the Faith of 2003 ( in N. 11 of its Considerations Regarding Proposals to Give Legal Recognition to Unions between Homosexual Persons):
The Church teaches that respect for homosexual persons cannot lead in any way to … legal recognition of homosexual unions. The common good requires that laws recognize, promote and protect marriage as the basis of the family, the primary unit of society. Legal recognition of homosexual unions or placing them on the same level as marriage would mean not only the approval of deviant behavior, with the consequence of making it a model in present-day society, but would also obscure basic values which belong to the common inheritance of humanity. The Church cannot fail to defend these values, for the good of men and women and for the good of society itself.
Humanitarian intervention and just war theory
Fr. Araujo recently posted an excerpt of Pope Benedict's address to the UN in which he affirmed a nation's duty to protect its citizens and the corresponding obligation of the international community to intervene when that duty is not fulfilled. I'm wondering if others have thought about how just war theory applies to cases of humanitarian intervention when that intervention is likely to trigger an armed conflict. The Bush administration's version of preemptive war does not easily fit within traditional just war theory, but does a preemptive humanitarian war qualify? Specifically, would it be permissible for an international force to topple the military rulers of Myanmar if the international community concludes that effective aid cannot be delivered as long as they remain in power?
Also, Pope Benedict cautioned that the international community's duty to intervene should not be understood as a limitation on a nation's sovereignty. That confuses me -- how could it not be a limitation on a nation's sovereignty? If we're establishing a principle stating that, if you engage in purposeful and systematic neglect of your citizens' basic needs, you forfeit the right to exclude foreign governments from your country, and perhaps your right to govern, isn't that a limitation on sovereignty (and a prudent one at that)?
Women, Work, and Leadership
Sunday's NY Times magazine contained an article discussing what we and our daughters should learn from the fact that opposition to Sen. Clinton's candidacy has included some expressions of sexism and misogyny (e.g. the "Life's a Bitch, Don't Vote for One" T-shirts) along with, the author recognizes, legitimate grounds for opposing her. The author then talks about the obstacles women still face in entering "male" occupations like firefighter and in rising to the top as large-company CEOs, large-firm law partners, etc. I was struck not by the article's emphasis on obstacles -- it took a pretty middle position recognizing the "possibilities" for young women and the "vitriol" they may face in working to realize them -- but by the fact that all the obstacles described were flat-out sexist expressions or attitudes (facing "the b- and c- words," surveys showing lots of men prefering to have male bosses etc.). There was no mention of the structural obstacles that exist because women remain the dominant family caregivers while also trying to provide the long work hours and intense work availability that it typically takes to rise high in a workplace. Again, I don't discount the sexism or misogyny aspect of the problem, and maybe the article focused on sexist expressions because it was trying to draw lessons from the Clinton candidacy (or maybe the author as a contributing (free lance?) writer hasn't experienced the structural workplace-demands problem herself). But it struck me again how often the structural side of the "glass ceiling" problem is ignored -- that if we value both mothers' caregiving and women's professional leadership, then changes in the competition-driven workplace are needed -- and therefore how important are the ideas discussed in this symposium, at St. Thomas Law last year, to which Lisa, Susan, and Michael S. (see link on symposium page) contributed.
Tom
George on Marriage as an Intrinsic Human Good
In response to my question about voting for same-sex marriage in 2038 if the consequentialist arguments have lost their persuasive power, Prof. Robert George kindly forwarded me his contribution to the book, The Meaning of Marriage. He attempts to reclaim "a sound understanding of marriage, especially in its sexual dimension, as an intrinsic, rather than merely instrumental, human good." An excerpt:
According to the traditional understanding of marriage, then, it is the nature of marital acts as reproductive in type that makes it possible for such acts to be unitive in the distinctively marital way. And this type of unity has intrinsic, and not merely instrumental, value. Thus, the unitive good of marriage provides a noninstrumental (and sufficient) reason for spouses to perform sexual acts which by uniting them as bodily persons (that is, one flesh) consummate and actualize their marriage. At the same time, where the central defining good of marriage is understood to be one-flesh unity, children who may be conceived in marital acts are understood not as ends extrinsic to marriage . . . but rather, and uniquely, as gifts that supervene on acts whose central defining and justifying point is precisely the marital unity of spouses.
If we recognize this intrinsic value of marriage, then the law must support that recognition:
The law is a teacher. It will teach either that marriage is a reality in which people can choose to participate, but whose contours people cannot make and remake at will (e.g., a one-flesh communion of persons united in a form of life uniquely suitable to the generation, education, and nurturing of children), or the law will teach that marriage is a mere convention, which is malleable in such a way that individuals, couples, or, indeed, groups, can choose to make of it whatever suits their desires, interests, or subjective goals, etc.
I very much appreciate (and recommend) Prof. George's analysis, as he has thought more deeply and coherently about this issue than I ever will. I also agree that maintaining marriage as a meaningful social institution requires limitations on its malleability. (Dale Carpenter has offered some thoughts, and linked to others' work, on drawing boundaries between same-sex marriage and polygamy.) I wonder, though, if privileging opposite-sex couples based on their participation in acts that are "reproductive in type" can carry the weight that is being placed on it in this analysis.
Monday, May 19, 2008
Politicians to Watch
Here are two politicians that almost make me want to move to the West Coast, just so I could vote for them: Congresswoman Cathy McMorris Rodgers, WA: (watch the whole clip -- it's adorable: http://www.youtube.com/watch?v=WfNAiBj-Hvs&feature=related ) and the Governor of Alaska, Sarah Palin: http://www.breitbart.com/article.php?id=D90EECIO0&show_article=1
Why should a Catholic vote against same-sex marriage (in 2038)?
I've been listening to conservative talk radio again, and after hearing another caller announce his plan to move out of California so his marriage is not associated with what the California Supreme Court hath wrought, it can be hard to keep sight of the line where reasonable argument ends and irrational prejudice begins. I'm trying to separate out the various strands of opposition to the ruling. I understand (and am highly sympathetic to) the democratic legitimacy argument, so let's put that to the side for now. Let's flash forward in time.
Imagine it's the year 2038. Same-sex marriage has been legalized by a combination of judicial rulings and legislation in every state except Kansas, and now Kansas voters face a referendum on the issue. Let's assume, for the sake of this exercise, that many studies conducted over the previous 30 years have established, to a reasonable degree of certainty, that:
- children raised in households headed by same-sex couples are indistinguishable from children raised in traditional households in terms of emotional and intellectual development, rates of physical and sexual abuse, self-esteem, and other measures of well-being;
- children raised in households headed by same-sex couples are no more likely to exhibit same-gender attraction than the general population is, and that the overall percentage of gays and lesbians in society has remained fairly constant;
- rates of sexual promiscuity among gays and lesbians have been reduced in states legalizing same-sex marriage, and rates of committed, monogamous relationships have correspondingly increased in the GLBT community;
- marriage and divorce rates in the general population have not been impacted by the legalization of same-sex marriage;
- state legislatures and courts legalizing same-sex marriage have uniformly rejected calls to extend the concept of marriage to encompass multiple partners.
These are big assumptions, I realize. But if the experience of same-sex marriage ends up eviscerating the usual consequentialist arguments against same-sex marriage, what are the reasons why the Catholic voter in Kansas should reject same-sex marriage? Is the ontological argument the only fall-back? If so, what does that ontological argument look like -- given ancient societies' embrace of polygamy and 2038 America's apparently successful embrace of same-sex marriage -- and why should a Catholic voter find it persuasive? Does it come down to Church authority, or is there something else?
UPDATE: Just to be clear, I'm not asking why the Catholic voter should support the Church's understanding of marriage. I'm asking why the Catholic voter should vote to extend the Church's understanding of marriage to the entire society through the civil law, assuming the state of knowledge as it might exist in 2038.
Recent Posts
Categories
Monthly Archive
StatCounter
PageViews
Since February 19, 2008
