A few thoughts with respect to Rob's two posts, and Michael's, on the question whether we, or CLT, really have anything useful or illuminating to say about the decision and questions presented in Boumediene.
First, it strikes me as quite unlikely that any particular separation-of-powers arrangement is required by Catholic teaching. It seems a stretch to think that, say, Catholic teaching dictates, with any specificity, the reach of the federal courts' jurisdiction or the content of the judicial power vested in the Court by Article III. Yes, of course, we can find support in Church teaching for human-dignity-promoting rule-of-law norms -- and a meaningfully independent judiciary would certain seem necessary for the vindication of such norms -- but I don't think the passages Rob [Correction: Albert Brooks, who wrote in to Rob] cites put to rest concerns one might (in my view, should) have about Justice Kennedy's opinion, its premises about judicial power, and whether the majority responsibly (or constitutionally) exercised that power, in striking down portions of two acts of Congress without providing meaningful guidance to lower courts and legislators going forward.
Next, we all agree that the Church's teachings rule out torture. That torture is immoral, and should also be illegal, does not answer questions about, say, the sufficiency of the review-process at issue in Boumediene, or about the meaning of the Eisenstrager precedent -- a meaning which, one could reasonably think, the majority evaded, without admitting as much.
That the four dissenting Justices are -- like Justice Kennedy -- Catholic does not suggest to me (as it perhaps does to Rob '[correction: Mr. Brooks]) that they missed or ignored their obligations as Catholics. (Nor do I necessarily take their dissents as reflecting a conscious application of Catholicism-inspired rule-of-law values in the case at hand.) The Faith does not tell us how far the Great Writ reached at the Founding, or how much process is required to substitute adequately for the writ, or whether, in a case like this, where the Executive and Congress are on the same page and therefore, at least since Youngstown, have enjoyed judicial deference, it is appropriate for the Court to nevertheless announce -- without, again, providing much guidance for the future -- that their joint determination is constitutionally invalid. I am inclined to think, that the Faith neither requires nor authorizes willful judging, even in the service of, on balance, wise and humane policies. The dissenters, on my reading, are reacting to what they perceive as willful judging; they are not dissenting from Catholic teaching.
Albert Brooks responds to my question about MoJ's relative silence regarding the Boumediene case:
In response to your MOJ inquiry about what, if any, the CST perspective on Boumediene should be, I think we absolutely have something to say. First, the Chuch validates the role of the Judiciary as a check and balance on the power of the Executive (with the Legislature's assistance) to imprison and punish individuals:
The Church recognizes the responsibility of the State to defend its citizens, but insists that "In a State ruled by law the power to inflict punishment is correctly entrusted to the Courts; 'In defining the proper relationships between the legislative, executive and judicial powers, the Constitutions of modern States guarantee the judicial power the necessary independence in the realm of law.'" (Compendium of the Social Doctrine of the Church at Para. 402, quoting JPII's Address to the Italian Association of Judges)(emphasis in original).
Further, "In carrying out investigations, the regulation against the use of torture, even in the case of serious crimes, must be strictly observed: 'Christ's disciple refuses every recourse to such methods, which nothing could justify and in which the dignity of man is as much debased in his torturer as in the torturer's victim.' Likewise ruled out is 'the use of detention for the sole purpose of trying to obtain significant information for the trial.' Moreover, it must be ensured that 'trials are conducted swiftly: their excessive length is becoming intolerable for citizens and results in real injustice.'" Id. at Para 404 (emphasis added). Well, you might ask, isn't Terrorism different? NO.
"This right [to defend oneself from terrorism] cannot be exercised in the absence of moral and legal norms, because the struggle against terrorists must be carried out with respect for human rights and for the principles of a State ruled by law. The identification of the guilty party must be duly proven, because criminal responsibility is always personal, and therefore cannot be extended to the religions, nations or ethnic groups to which the terrorists belong.
The recruitment of terrorists in fact is easier in situations where rights are trampled and injustices are tolerated over a long period of time." Id at Para 514. I believe Justice Kennedy's Majority opinion is fully in line with all of these principles that the Church insists upon. The four Justices who dissented? Four Catholics appointed by Republican Presidents.
1. Yes.
2. No. But the fact that heterosexual coupling is--or, at least, can be--"different in kind" does not entail that same-sex coupling is morally problematic. See generally Margaret Farley, Just Love.
3. Who said "SSM is analogous to interracial marriage"? I didn't. I said that a state's allowing for marriage, understood as a legal category, for same-sex couples is not more "statist" than its allowing for marriage, as a legal category, for interracial couples.
In a recent post, Rob writes: "At MoJ, we tend not to have much to say, for the understandable reason that Catholic legal theory, whatever value it has in some contexts, is wildly indeterminate when it comes to analyzing judicial decisions that do not directly implicate natural law principles (e.g., abortion, marriage, parental rights)."
It may be that CLT is wildly indeterminate when it comes to judging the outcome of a case, order, or piece of legislation, especially in those cases where prudential judgment must be exercised and reasonable people can disagree on how best to proceed. The value of Catholic Legal Theory is not in judging outcomes (although this may be called for in some cases) but in providing a framework for the legal aspects of our common life together; a framework that is built on a sturdier - more real - foundation than the currently prevelant alternative. In other words, our anthropology - our account of the human person - provides a method for judging the method by which judges and others come to their decisions.
First, do you agree with the way Rob Miller frames the SSM debate in this post? If not, how would you frame it?
Second, do you reject the notion that the biological reality (1+1=1 for heterosexual couples) signifies a deeper reality about the complementarity of the sexes, which makes hetersexual coupling different in kind from same-sex coupling? If so, on what basis?
Third, and this goes back to Tom's question, which you don't really answer here. If SSM is analogous to interracial marriage on what grounds does the state extend its tolerance to religious groups who disagree with the new order of SSM while discriminating against religious groups who disagree with racial integration?
Rumours from the Telegraph.
Sunday, June 15, 2008
one of my favorite stories of fatherhood, from 100 Years of Solitude:
The children . . . insisted that their
father take them to see the overwhelming novelty of the sages of
Memphis that was being advertised at the entrance of a tent that,
according to what was said, had belonged to King Solomon. They insisted
so much that José Arcadio Buendía paid the thirty reales and led them
into the center of the tent, where there was a giant with a hairy torso
and a shaved head, with a copper ring in his nose and a heavy iron
chain on his ankle, watching over a pirate chest. When it was opened by
the giant, the chest gave off a glacial exhalation. Inside there was
only an enormous, transparent block with infinite internal needles in
which the light of the sunset was broken up into colored stars.
Disconcerted, knowing that the children were waiting for an immediate
explanation, José Arcadio Buendía ventured a murmur:
“It’s the largest diamond in the world.”
“No,” the gypsy countered. “It’s ice.”
José Arcadio Buendía, without understanding, stretched out his hand
toward the cake, but the giant moved it away. “Five reales more to
touch it,” he said. José Arcadio Buendía paid them and put his hand on
the ice and held it there for several minutes as his heart filled with
fear and jubilation at the contact with mystery. Without knowing what
to say, he paid ten reales more so that his sons could have that
prodigious experience. Little José Arcadio refused to touch it.
Aureliano, on the other hand, took a step forward and put his hand on
it, withdrawing it immediately. “It’s boiling,” he exclaimed, startled.
