We have discussed Sr. Margaret Farley’s book, Just Love: A Framework for Christian Sexual Ethics, before here, here, and here. And, Amy Uelmen, Michael Perry, and I will be hosting an MOJ online symposium/discussion of the book at the end of the Spring Semester. William May, professor emeritus at the John Paul II Institute for Studies on Marriage and Family at the Catholic University of America and senior fellow at the Culture of Life Foundation, recently reviewed the book in the Winter 2008 volume of the National Catholic Bioethics Quarterly. This excellent review is available here. Scroll down to pages 793-797. Here is a short taste: “Farley understands love as ‘simultaneously an affective response, an affective way of being in union, and an affective affirmation of what is loved’ (168) and declares that ‘only a sexuality formed and shaped with love has the possibility for integration into the whole of the human personality’ (173). Nowhere, however, does she consider love as the gift of self, its key meaning in Christian thought as Vatican II and John Paul II have insisted. This is a major inadequacy in her understanding. Farley’s analyses of love are superficial. One ought to contrast them with those offered by Karol Wojtyla in chapter 2 of Love and Responsibility, particularly her evaluations of emotional love, romantic love, and pleasurable (erotic or sensual) love with Wojtyla’s magnificent analyses of sensuality and affectivity (sentiment, intimacy) as ‘raw materials of love’ that need to be integrated into the person in order to be love.” After an extensive analysis of the book, May concludes: “Farley’s work is clearly incompatible both with the teaching of the Church on human sexuality and sexual ethics, and with sound philosophical ethics.”
Thursday, December 18, 2008
Review of Sr. Margaret Farley's "Just Love"
Wednesday, December 17, 2008
A puzzling new lawsuit . . .
Why is the Thomas More Law Center challenging the government's bailout of AIG? It seems that AIG offers Shariah-compliant business products. Aside from the sweeping implications of the suggestion that government support of AIG thereby violates the Establishment Clause, why exactly does government support of a business offering Shariah-complaint products, in the words of the complaint, send a message of "disfavor" and "hostility" toward Christianity and Judaism? As Eugene Volokh comments,
If someone were advancing this broad a view of the Establishment Clause in some other case -- or trying to narrow the argument by limiting it only to certain Christian denominations, as the Complaint is trying to narrow the argument by stressing the supposed vices of Islam -- I would think that the Thomas More Law Center would and should protest. It's too bad that it's backing this argument here.
Frozen embryos and adoption
William Saletan, who is pro-choice, lends some indirect support to the Church's opposition to IVF, discussing a new survey finding that only 7 percent of IVF parents were very likely to give their "leftover" frozen embryos to other parents, and twice as many preferred to give the embryos for research as for reproduction:
To pro-lifers, this preference for destruction is baffling. We're talking about an embryo in a freezer. Nobody's asking you, the genetic mother, to put it in your own body. We'll do all the work. Just let us have it. We'll give it life, love, and a good home.
But the mindset of possessive responsibility says: No. This embryo is mine. I can't let it grow into a child if I'm not there. I'd rather extinguish it. This is a cruel instinct, but it's pervasive. It's why Bush's father couldn't persuade women to choose adoption over abortion and why Bush can't persuade them to choose adoption even when no pregnancy on their part is required.
Imploring these people to embrace a baby-making "culture of life" is noble, but it isn't realistic. Nor is putting ads in church newsletters for 500,000 adoptive wombs. The realistic answer is to stop making and freezing so many extra embryos in the first place. That, too, requires moral strength. If you can't stand to become a parent to a batch of frozen embryos, why are you creating them? Sort out your ethics before you cross that line.
Tuesday, December 16, 2008
A Subsidiarity Angle on the Banking Crisis
One aspect of the financial crisis not receiving much attention is the relative soundness of the smaller community banks that constitute a large part of our nation's banking system. Of course, a worsening recession could drag them down, too, and about two dozen community banks have failed this year, but they are generally fairly sound. Recent articles in a banking industry daily that I follow, The American Banker (available only by subscription) have noted out that about 1/3 of the banking industry (3,100 banks -- mostly smaller, community banks) has opted out of the Federal Deposit Insurance Corporation's offer of extra deposit insurance (for a price) until the end of 2009. Another article in today's American Banker ("Big Bank Troubles, Small-Bank Opportunity") discusses how "many smaller banking companies are well positioned to take advantage of market disruption by beefing up their staffs and entering into new lines of business. They also can capitalize on customer runoff, and the strongest ones are even scouting for branches or banks to buy."
I worry that the dramatic attention being given to the rescue of the financial institutions that are "too big to fail" is obscuring our appreciation of the value of our truly unique "dual banking system", in which a system of typically smaller, community-based state-chartered banks historically has provided a counterweight to the typically larger, increasingly regional or nation-wide federally-chartered banks. Significant federal regulation of the banking industry in response to the current crisis that is not sensitive to the position of state-chartered banks could significantly endanger the ongoing vitality of the dual banking system.
I recently published an article on the effect of a recent Supreme Court decision, Watters v. Wachovia on the delicate balance of federal versus state authority over consumer protection in banking services. Most of the article is an analysis of the evolution of federal preemption of state banking law, but the last section raises arguments of subsidiarity. Following is the abstract; you can find the article here.
Abstract:
In Watters v. Wachovia, 127 S. Ct. 1559 (2007), the Supreme Court reversed two presumptions about federal preemption of state law that historically have guided the delicate balance between state and federal authority over consumer protection in banking services - the presumption that issues involving consumer protection are quintessentially matters of state rather than federal prerogative and the presumption that national banks are subject to nondiscriminatory laws of the states where they are located, except where federal law expressly preempts such law.
This article analyzes the dramatic impact of Watters' reversal on two different areas - consumer protection in banking services and the continued vitality of the uniquely American dual banking system. The first part of the article traces the evolution of consumer protection law in the banking industry through three stages. The first was the gradual expansion of the preemptive effect of a particular federal usury statute for national banks through a combination of action by federal banking agencies and case law. The second stage was the assertion by federal banking regulators of a broad theoretical framework for federal preemption of state banking law based not on any particular federal statute, but rather on a theory of congressional intent to permit national banks to provide consistent banking services nationwide. The third stage was the validation of that broad conflict preemption theory by the Supreme Court in Watters. The article demonstrates how the reversal of the historic presumption has recently played itself out in the preemption of state laws governing bank-issued gift cards, culminating in the first citation of Watters in SPGGC, LLC v. Ayotte, 488 F.3d 525 (2nd Cir. 2007).
While challenging the proposition reflected in most recent scholarship in this area that federalization of consumer protection law necessarily entails deregulation, in this article I nevertheless conclude that Watters will have a significant adverse effect on the continued vitality of the dual banking system. Arguments for preserving the "dual banking system" arise out of our nation's fundamentally federalist sensibilities. From that perspective, a recent shift in the tenor of arguments for the preserving the dual banking system from the benefits of competition (states as laboratories of reform) to arguments based on the principle of subsidiarity (states as more responsive units of government where democratic ideals are more fully realized) can be observed. I argue that the subsidiarity arguments are likely to be more persuasive in convincing Congress to intervene to address the imbalance between the state and national banking system exacerbated by the Watters decision. I conclude by proposing that Congress partially reverse Watters by validating a recent proposal by the primary federal regulator of state banks to extend preemption authority to state banks, thus preserving to states the authority to offer a meaningful alternative to the national banking system on the level of consumer protection.
Monday, December 15, 2008
The Power and the Glory
I was in Santiago de Cuba, where the 50th anniversary of Fidel Castro’s revolution will be celebrated on Jan. 1. It was hot, nobody knew if the ailing Fidel would appear, nor where exactly the festivities would take place. I thought, I’ll drive out to Guantánamo, you never know.
The night before I left, a band showed up on the terrace of my Santiago hotel and played “Guantanamera,” the wistful melody about the peasant girl from Guantánamo. I thought it strange that a place once associated with a love song now summons grim images of George W. Bush’s war on terror.
Guantanamera: once I heard it, I couldn’t get the chorus out my head. Would some proud, sultry-eyed woman fit the image? Purposeless journeys bring pleasant surprises. Yes, I’d go to Guantánamo for a glimpse of the U.S. naval base and whatever else I might find.
It’s a two-hour drive from Santiago, complicated by the absence of road signs, a Cuban idiosyncrasy. I went past the town to a hillside where the bay glimmered silver and the U.S. control tower glinted far away. What a place for bunch of Yemenis to end up.
On the way back to Guantánamo, I gave a ride to a woman who told me she worked in a prison in Havana for $20 a month and had come here to visit her children, whom she had entrusted to her mother after a painful divorce.
I asked her if she’d like to leave Cuba. “No,” she said, “but I’d like to have relatives abroad sending me money!”
In Guantánamo, we pulled up by the main plaza. Dusk was falling. Old folk sat on benches under the palms. I set out across the square with its lengthening shadows toward a whitewashed church, Santa Catalina de Ricci, whose heavy wooden doors were flung open.
A surprise awaited me. The church was full. A young priest in luminous green vestments was holding Mass. His words met me as I entered: “La Misa es siempre un encuentro con Dios” — “Mass is always an encounter with God.”
I am a stranger to faith. Yet a wave of physical relief swept over me. After 10 days in Cuba, with its hymns to the heroism of Fidel, Che Guevara, the Revolution and socialism, the priest seemed a merciful figure. Instead of the deification of Fidel and the utopian perfectibility of mankind, he posited human fallibility and consoling salvation.
Graham Greene’s masterpiece, “The Power and the Glory,” came to me, with its condemned priest in his cell: “When you visualized a man or woman carefully, you could always begin to feel pity — that was a quality God’s image carried with it.”
I was spellbound, standing in the doorway, a breeze coming in. Cuba’s relations with the Catholic Church have improved in recent years, especially since the visit of Pope John Paul II in 1998. Atheism has ceased to be a revolutionary tenet.
The priest began to tell the Parable of the Talents. How a wealthy man, parting on a journey, gave five talents to one of his servants, two to another, and one to a third. And the servant with five talents invested wisely and earned another five. And the servant with two talents did the same, also doubling his money. But the third, fearful of his master, hid the talent in the ground and earned nothing.
And the first two enter “into the joy of thy lord,” but the third “wicked and slothful” servant is cast into “outer darkness.”
“Where is this parable told?” the priest asked.
A child’s hand shot up. “Saint Matthew!”
The child was right. But what of this parable in a land where there’s nothing to invest in? Was it a “free-enterprise parable,” as John Howard, the former conservative prime minister of Australia once called it, a reminder that if you are given assets you must add to them, just as if you are entrusted with the word of God, you must spread that word?
Or was it, rather, a parable about the cost of standing up to authority, of being a whistle-blower like the third servant, who calls his master a “hard man, reaping where thou hast not sown?” Was it about the courage to face down totalitarianism and its rich apparatchiks?
I wondered, but preferred mystery to answers. I’d seen America’s Guantánamo prison. I’d felt the suffering of the woman in the car. I’d left New York’s financial disaster, based on greed for redoubled assets, and found the economic ravages of Cuba’s head-in-the-ground Communism.
Yes, pity. And if this priest had the power to turn the wafer into the flesh and blood of God, and if the people gathered here believed that and were consoled, I was ready to bow my head in silence.
That, it seemed, was why I had come to Guantánamo
Cardinal Dulles obituary
Here is a wonderful obituary for Cardinal Dulles, from The Times of London:
[H]is greatest influence came as an interpreter of the Second Vatican Council. Explaining the liberalism of Vatican II to an older generation that had experienced only the unified, pre-conciliar Church, he was often identified as a voice for liberal Catholics in the 1970s. Explaining the conservatism of Vatican II to a new generation that had experienced only the fragmented post-conciliar Church, he became something of a leader for conservative Catholics in the 1990s.
But it always remained the centrality of the Second Vatican Council that he set himself to explain. From the beginning, the self-imposed work of the Dulles family — the discipline of their class — was to ensure that the centre held. That was true in the years that followed the Civil War, and again in the aftermath of the First World War, and again, in the long struggle of the Cold War. That was true as well for Avery Dulles, even though he had abandoned the world his family made for him.
The Irish-dominated, immigrant church of US Catholicism made for him something far different — an alien system of thought, an alien class — from anything his fathers had known. But still a Dulles was there, making certain that things did not fall apart.
Sunday, December 14, 2008
Tom Berg, Too, Responds to Nelson Tebbe
Thomas Berg
University of St. Thomas, St. Paul/Minneapolis, MN - School of Law
PENNumbra, 2008
U of St. Thomas Legal Studies Research Paper No. 08-32
Abstract:
Among the most important recent questions under the Religion Clauses has been whether and when government programs that support private activities, such as education or social services, may exclude religious institutions or activities that include religious content. Nelson Tebbe's article, Excluding Religion, argues that government should have "considerable latitude" to make such exclusions, even though he concedes they will discourage citizens from choosing religious options. In this response, published in PENNumbra (the University of Pennsylvania Law Review's online companion), I argue that Tebbe's justifications for excluding religion fail if the protection of citizens' religious choices against government influence is a central purpose of the Religion Clauses. I then turn to the key question whether preserving religious choice is indeed central, and I argue that it is, based on precedent, on traditions and concepts associated with the Religion Clauses, and on the fact that they are counter-majoritarian while Tebbe's position gives majorities great discretion over religious matters
[To download the paper, click here.]
Saturday, December 13, 2008
Human Dignity Revisited
First of all, I thank Richard M. for his posting yesterday on the release of the Instruction Dignitas Personae issued by the Holy See. I also thank Michael P. and Rick for their contributions on this matter. In a small service to our contributors and readers, I would like to take this opportunity to offer a brief synopsis of the Instruction. In doing so, I must be transparent in declaring that I have no financial interest in the outcome of this debate; however, I do have a great interest in helping to develop a better understanding of the issues which this document contains that have a bearing on the development of Catholic Legal Theory—especially as they deal with the concept of human nature that is inextricably related to authentic human dignity.
Here I recall that several of us have previously discussed the issue of human dignity. Nevertheless, in reading the Instruction, I am convinced that it presents in a coherent fashion a discussion that is crucial to a proper understanding of human dignity, i.e., that human dignity is important because the idea of human dignity emerges from the nature of the human being and that which makes the human being. The text, in short, is a much-needed presentation about human ontology. I recall here what Pope John Paul II and Jacques Maritain have said in the past regarding human dignity: it is that which is due man because he is man. In short, human dignity is the recognition of what is due each member of the human family because each is a human being who, regardless of the many things that make us different from one another, is a member of this family and whose origin and destiny are shared with every other member of the family. This is a point that the present day world is reluctant to discuss or admit not because of a lack of understanding but in disregard of it. So, I begin by suggesting that the first important point made by the instruction is this underlying principle and truth that it advances about human nature.
The Instruction correctly, in my estimation, acknowledges the importance of biomedical research to enhancing and protecting the dignity of the human person. For those of us who may struggle with life-threatening illnesses or medical conditions, this is good news and Good News, indeed! In addition, the instruction offers important teaching to assist Catholics and all people of good will to understand better the role that developments in medical science can and will have on the formulation of public policy in whose development we, as citizens, participate. Thus, the instruction has special application to the formation of the well-formed conscience of those who shall participate in the debates regarding the policy making surrounding the use of scientific advances.
In this context, the Instruction is clear from the outset that human dignity extends from the moment of conception until natural death. Thus, any practice, procedure, policy, etc. that adversely comes to bear on human life and existence within this natural framework will likely rob someone of his or her dignity unless it advances and promotes life rather than retards or destroys it. It is essential that I point out that the Instruction is the product of not just one person or one dicastery but represents the work of numerous individuals and offices whose wisdom and insights have proven essential to its formulation and a clearer understanding of human dignity. Thus, the Instruction is intended not just for Catholics or Christians but for “all who seek the truth” about human nature. In short, the Instruction is an important synthesis of faith and reason that should appeal to the widest possible audience.
The Instruction’s three substantive parts explicate these points. The first component addresses the anthropological and ethical perspectives regarding human life, its procreation, and its sustenance. Here is where the Instruction elaborates on why it is not only important but essential to protect and nurture the youngest member of the human family when he or she is conceived. Unlike lawyers who often seek to avoid answering difficult but pressing questions, as did the majority of the Supreme Court in Roe v. Wade, the Instruction declares and explains at the outset that from the moment of conception onward the new human being is a person and must, therefore, be accorded not only the same rights as everyone else but the rights that are inviolable to every innocent human being who is considered by society and its juridical institutions to be a person. A related point is one which does not follow or adhere to present day views that may be popular but are, nonetheless, wrong because they convey a false understanding of human nature. This second component, then, emerges from the explanation of the proper origin of human life, which is from the union of the male and the female in the natural family which is also a manifestation of love between these two persons who are jointly responsible for the nurturing and raising of this new person. While human life may start in a Petri dish or other laboratory apparatus that borrows a “little from here and a little from there”, its proper place of foundation is between the conjugal relationship of parents, one of whom is male the other of whom is female—both being charged with the duty or caring for the new person whom they, and God, have authored.
This brings the Instruction to its second major part involving the medical science surrounding the foundation of new human life and the bringing forth of a new human person. The Instruction in this section discusses at some length the artificial means of procreation. While it properly acknowledges that some of these methods can and do produce new persons, they do so at great risk—including fatality—to many other persons who are not selected for nurturing but for destruction and death. As the instruction states, “Techniques are morally permissible if they respect: ‘the right to life and to physical integrity of every human being…’” [Italics are mine] Those techniques which therefore assist the husband/father and wife/mother in their conjugal relations and do not threaten the existence of any person, as understood by the Instruction, who may be produced from their union would appear permissible. Of course, in this age of IVF techniques that may generate a large number of persons, only a few may survive because many will be disposed of, i.e., deliberately killed even when they are subjected to long-term cryo-preservation [freezing]. The Instruction correctly notes that these methods of assisted procreation are riddled with moral problems because some new persons will invevitably be targeted for destruction regardless of the longevity of their existence in this world.
The third and final component of the Instruction touches upon the most recent development in medical science regarding manipulation of the human embryo (person) including genetic management and exploitation. The Instruction does not critique or condemn these interventions as long as they are designed to correct defects that will adversely affect the developing life of the person or the germ line that will become a part of subsequent offspring. The moral difficulty begins to emerge when the manipulation departs from helping the current subject and treats the current subject as an object whose genetic materials or cells may improve someone else’s life later on. Here, existing human life and, therefore, persons are treated as expendable. Their life is not valued as life, their life is objectified because it is not an end in itself, i.e., it is not viewed as human, but it is viewed as a means to contribute to another life. This is the basest kind of servitude that for millennia have justified slavery or inhuman domination that denigrates the dignity that is inherent to each human life, each human being, each human person. A recent illustration of this abuse is found in the arguments advancing human embryonic cloning for so-called therapeutic purposes and research. The necessary procedures, while ostensibly presented as pro-life because the research is intended to “assist” people, inevitably lead to the destruction of every person who becomes an unwilling, sacrificial donor to the “potential” advance for someone else’s life.
The Instruction is a rich document demanding careful study by all. However, I hope this brief synopsis will assist those who read MOJ in some small measure to appreciate the important contributions which the Instruction makes to some pressing problems of the present day and, most likely, beyond.
RJA sj
Different views on William Neaves
It might be helpful, when evaluating the claims pressed by William Neaves in the piece to which Michael P. linked (here), to also read this, by Robby George and Patrick Lee, and this, by Wesley Smith. Neaves is a longtime proponent of human cloning and embryo-destroying research, and was a prominent financial backer of Missouri's 2006 pro-cloning campaign. I would have thought that the National Catholic Reporter could have found a not-so-obviously-in-the-tank-for-embryo-destructive-research thinker to suggest a critique of Dignitatis personae''s premises. That said, obviously, as Neaves points out, there are different views out there about "personhood" and, just as obviously, one's views about "personhood" will shape one's claims and conclusions with respect to the matters and acts treated in Dignitatis personae. And, obviously, some understandings will be less convenient for Big Biotech and those who serve (and profit from) it.
Friday, December 12, 2008
Rick Garnett: The Name Sounds Familiar
'Excluding Religion': A Response
Richard W. Garnett
Notre Dame Law School
University of Pennsylvania Law Review PENNUMBRA, Forthcoming
Notre Dame Legal Studies Paper No. 08-35
Abstract:
In a thorough and
thoughtful article, Excluding Religion, Prof. Nelson Tebbe asks "whether the
government may select religious entities for exclusion from its support
programs?" and concludes that, sometimes, it may. "The government," he contends,
"need not remain neutral toward religion in its support programs[.]"
In
this short response to Tebbe's paper, I first suggest that the reasons Tebbe
offers for such exclusion - including "promoting equal citizenship for members
of minority faiths . . . , fostering community concord, [and] respecting
taxpayers' freedom of conscience", are not particularly strong. Next, I turn to
the various "limits" that Tebbe imposes on his permissible-exclusion claim, and
attempt to show that, in fact, these limits fit uneasily with the claim they
constrain. The aim of this attempt is not to cheer state efforts to - in Tebbe's
words - "shape the content of citizens' beliefs through government speech and
other means," but instead to warn that the inevitability of such efforts poses a
real threat to religious freedom, one that is not likely to be repelled with
assurances that the state must act nonpreferentially, or must act with a secular
purpose, or must not make theological judgments. If we believe, as Tebbe and I
do, that there should be limits on the power, and on the ambition, of
governments when it comes to the content of citizens' commitments and the
objects of their loyalty, it is essential that we think hard not only about the
location of these limits, but also about the reasons for them and the worth of
what it is that they protect.
[To download the paper, click here.]
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