Mirror of Justice

Tuesday, August 12, 2008

Dante and Homophobia

You should check out Rick Hills' post over at PrawfsBlawg on the possibility of non-homophobic opposition to same-sex relationships, as seen through the lens offered by Dante. Here's the opening:

A conservative friend of mine protested my recent post that used the term “homophobia” to refer to persons who disapprove of same-sex sexual relationships. He noted that such disapproval is not necessarily “phobic”: It could simply be based on some perfectly rational theory of sexual morality. As a theoretical matter, I tend to think that my friend is correct: Disapproval of homosexuality is not necessarily phobic, as a matter of logical necessity. But much –- probably most -- modern disapproval is, in my view, probably phobic as a matter of fact.

UPDATE: To be clear, while Hills' post is worth reading, his reasoning is, in my view, far from air-tight, as I've tried to indicate in the comments.

The Death of the Mainline (and Why It Matters)

By Rob Vischer

I just returned from a week at Lake Okoboji in northwest Iowa, where, since my birth, I have gathered with my extended family for an old-fashioned evangelical Bible conference every August. This sort of gathering used to be found all over the place, but it's a dying breed. The Okoboji Conference (founded by my great-grandfather in 1935) is still vibrant, attracting roughly 2000 people each year for morning classes and evening services. This year I co-taught a class with my brother Phil, titled Christ and Culture: Christian Perspectives on Law, Entertainment, and Business. While my brother handled the entertainment and business sides, I spent three days exploring modern law with 160 evangelicals. It was challenging for me, and undoubtedly jolting for them, in part because I encouraged them to look beyond scriptural texts to find intellectual resources for engaging our culture on issues like human dignity, the family, and economic justice. (At a minimum, I guarantee that there is a deeper working knowledge of "subsidiarity" today among northwest Iowa's evangelicals than at any time in history.)

So engagement between Catholics and evangelicals is on my mind, and that might explain why I found Joseph Bottum's The Death of Protestant America so interesting. Bottum places Mainline Protestantism's decline in a broader cultural context, focusing on Mainline denominations' abandonment of any serious theological work and capitulation to secular trends. An excerpt:

[T]he denominations were often engaged in what later generations would scorn as narrow sectarian debates: infant baptism, the consequences of the Fall, the saving significance of good works, the real presence of the Eucharist, the role of bishops. And yet, somehow, the more their concerns were narrow, the more their effects were broad. Perhaps precisely because they were aimed inward, the Protestant churches were able to radiate outward, giving a characteristic shape to the nation: the centrality of families, the pattern of marriages and funerals, the vague but widespread patriotism, the strong localism, and the ongoing sense of some providential purpose at work in the existence of the United States.

Which makes it all the stranger that, somewhere around 1975, the main stream of Protestantism ran dry. In truth, there are still plenty of Methodists around. Baptists and Presbyterians, too—Lutherans, Episcopalians, and all the rest; millions of believing Christians who remain serious and devout. For that matter, you can still find, soldiering on, some of the institutions they established in their Mainline glory days: the National Council of Churches, for instance, in its God Box up on New York City’s Riverside Drive, with the cornerstone laid, in a grand ceremony, by President Eisenhower in 1958. But those institutions are corpses, even if they don’t quite realize that they’re dead. The great confluence of Protestantism has dwindled to a trickle over the past thirty years, and the Great Church of America has come to an end.

And that leaves us in an odd situation, unlike any before. The death of the Mainline is the central historical fact of our time: the event that distinguishes the past several decades from every other period in American history. Almost every one of our current political and cultural oddities, our contradictions and obscurities, derives from this fact: The Mainline has lost the capacity to set, or even significantly influence, the national vocabulary or the national self-understanding.

Can Catholics and/or evangelicals fill the void? Bottum has his doubts:

The evangelicals may have too little church organization, and the Catholics may have too much. Besides, both are minorities in the nation’s population, and they arrive at our current moment with a history of being outsiders—the objects of a long record of American suspicion, which hasn’t gone away despite the decline of the churches that gave the suspicion its modern form.

Perhaps some joining of Catholics and evangelicals, in morals and manners, could achieve the social unity in theological difference that characterized the old Mainline. But the vast intellectual resources of Catholicism still sound a little odd in the American ear, just as the enormous reservoir of evangelical faith has been unable, thus far, to provide a widely accepted moral rhetoric.

Monday, August 11, 2008

California homeschooling decision

By Richard Myers

On Friday August 8, 2008, the California Court of Appeals issued its decision in the home-schooling case. Here. The court removed the cloud over home-schooling by interpreting California law to permit home-schooling as a form of private school education. The court also made it clear that the decision of parents to home-school could be overridden (without violating the Constitution) to protect the safety of the children involved.

The decision seems a laudable effort to resolve, at least temporarily, the crisis in California that the earlier decison had threatened. Although I'd like to think about this a bit more, the constitutional discussion also seems sound, despite a few statements in the opinion that give a bit too much deference to state power. Even the strongest advocates of parental rights agree that the state may step in to protect the health and safety of children. Here, the parents who were carrying the banner of parental rights had been found, according to the published opinions, guilty of physical abuse and of a failure to protect one of the children from sexual abuse. The court of appeals ended up remanding the case and asked the lower court to consider whether the safety of the children required removing them from home schooling.

Richard M.

Obama's "Messiah Complex" (Or is it Bush's?)

By Rob Vischer

Over at Beliefnet, Steven Waldman critiques efforts by the conservative media (and the McCain campaign) to create evidence of Obama granting himself Savior-like significance. They do so, according to Waldman, by taking statements wildly out of context. For example:

The line used in the McCain ad, a campaign memo, and on just about every conservative blog in America is Obama's quote: "I have become a symbol of the possibility of America returning to our best traditions."

Witnesses who attended the closed-door talk at which Obama suposedly said this have claimed that Obama's actual words were:

"It has become increasingly clear in my travel, the campaign -- that the crowds, the enthusiasm, 200,000 people in Berlin, is not about me at all. It's about America. I have just become a symbol. I have become a symbol of the possibility of America returning to our best traditions."

Waldman also compares the current rhetoric with the 2004 Bush campaign's efforts to signal that God had orchestrated Bush's election in 2000.

"Tropic Thunder" and People with Intellectual Disabilities

By Elizabeth Schiltz

Timothy Shriver has a great op ed piece in the Washington Post about the portrayal of people with intellectual disabilities in the film due out this week, "Tropic Thunder." This film has been vaguely on my radar screen as containing potentially offensive racial characterizations, but what sounds like some truly offensive characterizations of people with intellectual disabilities doesn't appear to be raising much objection. Shriver's piece includes this heart-breakingly realistic description of the continuing systemic discrimination against people with intellectual disabilities in our society:

People with intellectual disabilities are routinely abused, neglected, insulted, institutionalized and even killed around the world. Their parents are told to give up, that their children are worthless. Schools turn them away. Doctors refuse to treat them. Employers won't hire them. None of this is funny.

For centuries, they have been the exception to the most basic spiritual principle: that we are each equal in spirit, capable of reflecting the goodness of the divine, carriers of love. But not people with intellectual disabilities. What's a word commonly applied to them? Hopeless.

Let's consider where we are in 2008. Our politics are about overcoming division, our social movements are about ending intolerance, our great philanthropists promote ending poverty and disease among the world's poor. Are people with intellectual disabilities included in the mainstream of these movements? For the most part, no.

Why? Because they're different. Their joy doesn't fit on magazine covers. Their spirituality doesn't come in self-help television. Their kind of wealth doesn't command political attention. (The best of the spirit never does.)

Sunday, August 10, 2008

Kmiec's question, and other things . . .

By Rick Garnett

At Michael P.'s suggestion, I surfed over to the Commonweal blog for David Gibson's post on "abortion and the Catholic voter". I have to admit, I'm not sure there's all that much to be said or done, or much movement to be expected, on the "Catholic voter" question. We are where we are, and that's where I expect we'll stay. Still . . .

It seems to be a premise of many of these "for whom should Catholics vote?" discussions that "on every issue that matters, other than abortion, the election of Sen. Obama will actually yield meaningful policy actions that are edifyingly in concert with the Church's social teaching, while the election of Sen. McCain will actually yield meaningful policy actions that are distressingly in conflict with the Church's social teaching." But, this premise is false.

It is false because it ignores, or at least downplays, the political, social, cultural and economic realities that will almost certainly prevent dramatic changes with respect to most matters, and so it overestimates the "good" stuff about an Obama administration that, it is proposed, outweighs the "bad" stuff. It is also false because Sen. McCain's views (or, more precisely, the policies likely to be pursued by his administration) on a number of matters -- not just abortion -- are, in terms of consonance with the Church's social teaching, preferable to Sen. Obama's. Or, so a faithful, reasonable, informed, non-duped, non-Republican-hack, Commonweal-and-First Things-reading Catholic could conclude. It's a sad thought, but . . . I'm not sure that productive conversations -- even among friends -- are possible so long as this false premise is assumed.

David Gibson's post is a discussion of this New York Times piece -- read my colleague Gerry Bradley's analysis of the piece, here -- which quotes my longtime friend Doug Kmiec as urging Catholics to ask, "not ‘Can I vote for him?’ but ‘Why shouldn’t I vote for the candidate who feels more passionately and speaks more credibly about economic fairness for the average family, who will be a true steward of the environment, and who will treat the immigrant family with respect?’”? (I assume Doug is not talking here about Gov. Romney, the previous object of his enthusiasm? Sorry. Couldn't resist.) Put aside, but just for now, the facts that it is not at all obvious that Sen. Obama's "feel[ings]" -- on anything -- are more admirable than Sen. McCain's, that Sen. McCain's record on environmental "stewardship" is a responsible and reasonable one, and that Sen. McCain -- who has taken real political risks supporting fairness for immigrants, while Sen. Obama (feelings and all) has not yet served out a full term in the Senate -- would not "treat the immigrant family with respect". For what it's worth, here's a possible answer to Doug's question: Because Sen. Obama voted against a law banning the killing of infants that survive abortions, he voted to filibuster Justice Alito (in a context where the leading arguments against the nominee involved his vote upholding abortion regulations) and would probably nominate judges and justices who, though entirely competent and decent, would have misguided views on religious-freedom and church-state matters, he opposes school choice, he would roll back the faith-based initiative, and his election means the certain passage into law of the awful Freedom of Choice Act. He looks great when he raises his chin, and some of what he says -- when he is not thundering in support of abortion rights -- sounds nice, but that's just not enough. For me. For what it's worth. . . .

On an entirely different matter . . . I've been vacationing in the Pacific Northwest, am returning to "Michiana" tomorrow, and can report that (a) Whistler is beautiful and (b) the Kautz route up Mt. Rainier was -- for this aging law prof, anyway -- too hard. Back to the drawing board . . . .

Thursday, August 7, 2008

A Trend from the Land Down Under?

By Thomas Berg

Jim Wallis reports from Australia that in their election of a Labor government last November, a "pivotal" cause was the swing in votes of some evangelicals and pentecostals (see here), based on "new" issues like climate change, global poverty, and the Iraq war and on the presence of an openly religious (Catholic) party leader. Those factors are operating here, although we don't know how strongly and you'd want to compare Obama's specific positions with how Kevin Rudd as PM has handled similar issues.

At any rate, the Australian headline "On a swing and a prayer" is clever.

Abortion and the Catholic Voter

By Michael Perry

Interesting post (including comments) over at dotCommonweal: here.

Wednesday, August 6, 2008

More on the AALS Boycott

By Thomas Berg

I think that Susan and Greg have articulated well the reasons why the proposed boycott at AALS is a bad thing, and they help me put details on my not-fully-articulated question about whether the presence of "market power" makes this wrong. (I think we agree that the boycott is legal -- an exercise of the boycotters' own speech and other freedoms -- except perhaps for Fr. Araujo; I'm not sure how to read his argument that the boycotters "are challenging [Mr. Manchester's] right to exercise his political voice"). I do think we have to be careful about saying that "it's not within [an organization's] nature or purpose" to engage in a given expression of conscience in the marketplace. That's the argument that's used to say landlords shouldn't refuse to rent to unmarried couples, pharmacists shouldn't refuse to dispense Plan B, and federally funded soup-kitchen program shouldn't consider religion in hiring: their purpose, the argument goes, is simply to provide commercial and social services, not to express conscience. But I agree that the presumption should be different when a scholarly organization with a wide membership, i.e. encompassing the whole legal academy in a given subject matter, takes an official stance based on someone's expression of views. Such organizations should have a much stronger ethos of maintaning a neutral stance between people (including their own members) of fundamentally different political views. I was pointing toward something like that with the "market power" question, but the others articulate it much better.

I think Greg is also right to recognize that SALT, which is an an ideologically grounded rather than an umbrella subject-matter organization, presents different questions. In response to Greg's charge that SALT is contradicting its professed commitment to freedom of speech, I imagine SALT would say that if Mr. Manchester's giving his money to a cause based on his belief is speech, then so is their members' withholding their money based on their beliefs.

Now if Mr. Manchester repeatedly expressed racist views, or contributed $125,000 to a constitutional-amendment drive to reverse the right to interracial marriage, would Greg, Susan, et al. respond differently to a proposed boycott? If so, that would bring us back again to the argument, which recurs in all of these disputes, that opposing same-sex marriage and seeking to reflect that opposition in the law, should not be treated the same as racism. There is, at the least, enough room for good-faith debate about this issue that those with whom one disagrees ought not to be marginalized, not just in the academic sphere directly -- this is not a boycott against academic speakers who oppose same-sex marriage -- but in closely related spheres like where to hold a conference. Thus Patrick's post on the same-sex marriage/racism comparison is highly relevant.

Tuesday, August 5, 2008

Ending the possibility of civil discourse

By Patrick McKinley Brennan

Tom Berg and Susan Stabile have raised some important questions about decisions by groups that are eager to boycott the hotel the AALS, long before the California Supreme Court decided that there is a right in law to same-sex marriage, chose to house the organization's January 2009 meeting. The stated object of the boycott is the hotel owner's use of his personal resources to influence political judgments and law. I'm sure reasonable minds can differ on many of these questions.

A statement by my distinguished Villanova colleague Louis Sirico, who in his capacity as an AALS section chair speaks for many, raises a question of a different order of magnitude. Here's what the National Law Journal Reports:

'Also on Monday, Louis Sirico, chairman of the AALS Section on Legal Writing, Research and Reasoning, said that if the AALS does not move the meeting, his group will not attend events at the hotel. "It's a matter of principle," he said. "We just don't believe in this kind of discrimination." Sirico is director of the legal writing program at Villanova University School of Law.

"Discrimination?" Does Professor Sirico -- and do those for whom he (apparently) speaks -- believe that those who adhere to the traditional view that marriage is the union of a man and a woman engage in "discrimination?" It would seem so, if the NLJ and Professor Sirico are telling the truth.

But there's discrimination (I discriminate between ripe and overripe tomatoes), and there's discrimination. The latter is of the sort condemned in Loving v. Virginia (1967), in which the Court declared Virginia's anti-miscegenation statute a violation of our Constitution. Is the suggestion, allegation of Sirico et al. that those who oppose legal recognition of same-sex marriage engage in the invidious sort of discrimation that Loving outlawed?

Cannot reasonable minds differ on the question of whether same-sex marriage should be recognized in law? The crazy-quilt of national discourse would indicate a positive answer. The reactionary hurling of epithets only tends to preempt the possibility of civil discourse on a question that is vigorously and vibrantly disputed in our society.

But perhaps it's more than the hurling of epithets. Perhaps Sirico et al. are sitting in solemn moral judgment on all those people who conscientiously conclude that the legal recognition of same-sex marriage is not a morally tenable option. Perhaps they're sure that the rest of us are surely wrong.

The allegation of "discrimination," when it's not varieties of tomatoes that we're talking about, is a debate stopper. Should we admire -- or should we not question -- the moral certainty that leads people to rule out the voices of those who are not convinced that same-sex marriage is a morally tenable option? Has the question tackled by Sirico et al. in fact been decided with the finality and certainty that leave all the others in the realm of moral opprobrium?

John C. Murray was right that civil disagreement is a monumental achievement. The anti-reasoning sloganism of "discrimination," in advance of deep and certain judgment, prefers intimidation to civic discourse.