Some interesting thoughts from my friend, and fellow Prawfs-blogger, Paul Horwitz. I have added a comment of my own, after his post.
Thursday, January 22, 2009
Should Obama "wait a day"?
The Anniversary of Roe: "For us, there is only the trying."
Today, of course, in the anniversary of Roe v. Wade. Here are some remarks, regarding that decision, its significance, and the future, given by Robert George, at the Cardinal O'Connor Conference on Life. As George explains (I say "explains," rather than "argues", because it seems to me that he is right when he says that), Roe was wrong on the law, wrong in terms of the Justices' assumption that the policy they were constitutionalizing was a humane and progressive one, and wrong in terms of what it ended up doing to our national politics, and to constitutional law. He also notes (as many did, during the election):
Of course, from the pro-life vantage point, success on the judicial front is only the prelude to the larger political struggle over abortion. If Roe is reversed, the result will be to return the matter to the domain of ordinary democratic deliberation for resolution by the state legislatures or the Congress. The burden will then be on the pro-life movement to win the struggle for the soul of the nation. We must, with God’s help, persuade our fellow citizens to fulfill the promise of the Declaration of Independence by bringing the unborn fully within the protection of our laws.
On this score, we have a marvelous model in the great anti-slavery crusader William Wilberforce. When he began his work against the monstrous evil of chattel slavery, the odds appeared to be long against abolition. He was attacked by partisans of the slave power as a zealot, a religious fanatic, and, most perversely, an enemy of freedom. He was, they said, imposing his religious values on others. If he didn’t like slavery, well, no one was forcing him to own slaves. He should mind his own business and stay out of other people’s affairs. Less vitriolic critics said that he was unrealistic. He was a dreamer. He was making impossible demands. Does any of this sound familiar?
That is, George draws what is, in my view, the better lesson from the fact (sometimes pointed to as a reason for pro-life voters not to focus on judicial nominations) that overturning Roe (if it ever happened) would not end abortion, namely, that pro-lifers would -- once freed from the shackles that Roe imposes on normal democratic politics -- still have to work hard to change (through persuasion, charity, example, diligence) hearts and minds: "[F]or us, there is only the trying. The rest is God’s business, not ours. Yet we are given to know that in trying, we fulfill God’s commands, and build up His kingdom."
Obviously, the legal landscape on which this "trying" will take place has changed in recent months, and is changing at this very moment (whether or not the Freedom of Choice Act itself is enacted into law). I believe strongly that the pro-life position requires opposition to the constitutionalization of an abortion license. For now, though, this mistaken constitutionalization is safe, and likely to be celebrated and entrenched. But the "trying", in one way or another -- as the thousands marching in Washington today remind us -- will continue.
One Way to Observe the 36th Anniversary of Roe v. Wade
This morning NPR reports that President Obama will likely use this anniversary to lift the ban on U.S. foreign aid assistance to international family planning groups that perform or promote abortion:
“Thursday marks the 36th anniversary of Roe v. Wade, the landmark Supreme Court decision that legalized abortion nationwide. It's also likely to mark the day President Barack Obama will reverse at least a few of the anti-abortion policies of George W. Bush.
…
The most likely candidate for action is the so-called ‘Mexico City policy,’ known by its detractors as the ‘global gag rule.’ It prohibits U.S. foreign aid assistance to international family planning groups that "perform or promote" abortion.”
Indeed, it does not
"Freedom of religion does not include freedom to kill your children," Michael reminds us. Indeed, it does not. Unfortunately, in this op-ed, Prof. Kmiec seemed to suggest otherwise. I criticized this suggestion here (charitably, but -- I thought -- with rapier-like effectiveness. =-) ). Perhaps, though, in so doing, I was hateful, spiteful, mean-spirited, partisan, etc. I hope not. (As David Lee Roth might put it, "I don't feel hateful!").
Wednesday, January 21, 2009
What does it mean to be Catholic? And, why is being Catholic important to Catholic legal theory?
I sincerely thank the many authors who have contributed to our discussion over the past couple of days. I am personally indebted to Steve for his raising a number of important issues that help me identify and address the two questions that I have posed in the title of this posting. It may appear to some that I am taking on particular members of the MOJ contributors in writing this post, but that is not my objective or intention. I am, however, responding to the invitation to dialogue that Steve Shiffrin, in particular, has extended. I find that a number of his thoughts challenge me but also provoke a response in me after reflection on what he and others have presented.
I begin by considering the first question in this posting’s title: what does it mean to be Catholic? Surely there are some issues, e.g., capital punishment, on which Catholics who adhere to the Magisterium (and, as Steve sometimes says, “the institutional church”). Many months ago I addressed this issue which was an effort to build upon the thoughts of Avery Cardinal Dulles concerning the Church’s teachings on this issue. In my reflection, I explained why capital punishment was wrong by attaching a short unpublished essay I had written. I wonder if this makes me a “liberal” or a “progressive”? At the same time, I realized that other faithful Catholics could disagree with the position I had advanced. I wonder if that makes them “conservative”? For those who may not have read what I said, here is the link Download Araujo on Death Penalty to my brief essay.
Steve has also asked if God is a liberal? I don’t think we can attribute human inclinations or perspectives to God. God is neither liberal, nor conservative, nor anything in between. God is God. I think that Steve and I are mostly in agreement on this based on what he says regarding any human effort to “unravel the mystery of God.” But can we know God? Steve seems to suggest otherwise, but I think we can through prayer and through the tradition of revelation that some have encountered and related to the rest of us as the Church teaches. I agree with Steve that Christians, if they are faithful to their discipleship, are called to assist in the divine plan. I suspect that he and I may differ on what that means on particular issues in which Catholics and other believers have been immersed over time. Indeed, Steve is on to something when he suggests that we “must ask what God expects of” us. We have to “discern to the best of [our] ability God’s vision of justice.”
But I do not conduct my discernment alone. If I were to pursue this path, I am confident that my view of Christian justice would be skewed by subjectivism. I know that I must turn not only to the prayerful experience of others, but I must take stock of what Steve calls the Magisterium or “institutional church” for I believe that Jesus Christ gave to Peter and the first apostles authority to define what Christian justice is and what it is not. So, I do and must turn to others—not just those with whom I am comfortable. But, in doing so I must also turn to those who have been commissioned by Jesus Christ and their successors. I am most grateful to Elizabeth Schiltz for her wise counsel concerning debate; however, since the Mirror of Justice exists to explore the meaning of Catholic legal theory, it will be necessary to do just that—debate—on occasion. To remain silent on these grave matters may be safe but it is not a luxury that can be easily afforded. So, as Steve suggests, there are risks not only in searching for “what we want to see in God” but also to engage one another in respectful and civil discourse.
As I pursue this course of engagement through discussion and, yes, debate, it appears that I will disagree with Steve, but not, as he says, on immigration, the environment, “and the like,” but on those very matters that divide deeplly members of the Church and of our nation, e.g., sexual morality, marriage, contraception, and abortion. If I am in doubt as to what the Church expects of me or anyone else regarding these high profile issues, I do not have far to look to find answers. Our Church’s teachings and the justifications for her teachings are within easy reach. They are accessible to me and anyone else who wishes to inquire. It is not simply what is inscribed on my heart and mind but also on the hearts and minds of others—including especially those who have been commissioned to teach in her name throughout the Church’s history.
As a priest, without modifier liberal/conservative or orthodox/heterodox, I, too must counsel those who seek my pastoral advice. Moreover, I must be satisfied that the advice and teaching I relate is sound. It cannot be what I think or feel is right. In providing this ministry, I must think with the Church, and explain, as best I can, what she teaches with mercy and tenderness, surely, but also with clarity. To be “truly diverse” is not the question about what is needed for God’s people. What is truly needed is objective and moral truth that is not mine or yours but God’s which can be known and conveyed with prayer, with discernment, and with union with the Church in thinking with rather than against her. I will not call someone else sexist, homophobic, or corrupt knowing that I, too, am a sinner who seeks fidelity for me and for others and God’s mercy and forgiveness. But I must not be paralyzed in failing to convey what the Church teaches and why it teaches when my responsibilities as priest, teacher, and disciple are exercised. This is the challenge of discipleship that is not open to some but to all in occasions appropriate to their calling as followers of Jesus Christ. However, if “progressives” conclude that they do not need the Roman Catholic Church to be Catholic and seek my response to what they have concluded, I will accept the summons and argue respectfully why the Church considers such conclusions erroneous.
Steve and I agree that those who depart from these important moral teachings register dissent from what the Church (or, to be mindful of Steve’s perspective, “the institutional church”) asks from her members. So I come to his pertinent question why should these dissenters not be protestant or something else or nothing else? Steve suggests the question is a fair one, and the answer he offers is that belief in the sacraments, participation in theological discourse, and eschewing Protestant individualism preserve the dissenter’s Catholicism. But many Protestants celebrate some or all the sacraments; many Protestants engage in theological discourse; and some Protestants proclaim the common good over exaggerated individualism. That is why Steve resorts to other traits of what it means to be Catholic: an emphasis on grace rather than on evil (a trait of Protestantism according to Steve). Surely the Church teaches abundantly the nature and presence of grace in our lives—Deo gratias! But I think she also reminds us constantly of the presence of evil and of sin. Pius XI in Non Abbiamo Bisogno and Mit Brennender Sorge and John Paul II in Veritatis Splendor, Evangelium Vitae, and Centesimus Annus (to mention just a few elements of the Magisterium) address at length the presence of evil in the world of modern and contemporary times. And St. Paul in his letter to the Romans reminds us that Christ’s disciples are exhorted not to be overcome by evil but are commissioned to overcome evil with good.
These are some considerations that I present in response to Steve’s kind invitation regarding what it means to be Catholic. And it is this understanding of being Catholic—thinking with, not against, the Church—that is important to development of Catholic legal theory. Otherwise, one who is attracted to and relies upon the dissenting view may have some wonderful things to say about legal theory, but are they really Catholic? If one’s thinking is rooted other than in the Church, I do not see how it is possible to argue that one’s legal theory is in the Church when that theory is in conflict rather than in communion with her teachings. Fidelity to her teaching does not sacrifice discussion, debate, intellectual stimulation, richness, civility, or humility.
Last of all on another matter raised by Steve, I found what Kerry Kennedy has to say about “Being Catholic Now” moving, but I do not think I was moved the same way that Steve suggests. Thus, I wonder if I am in the circle of “rare human beings” to which Steve refers or not. Well, I’ll reserve that for another discussion another time.
RJA sj
Freedom of Religion Does Not Include Freedom to Kill Your Children
New York Times
Trials for Parents Who Chose Faith Over Medicine
WESTON, Wis. — Kara Neumann, 11, had grown so weak that she could not walk or speak. Her parents, who believe that God alone has the ability to heal the sick, prayed for her recovery but did not take her to a doctor.
After an aunt from California called the sheriff’s department here, frantically pleading that the sick child be rescued, an ambulance arrived at the Neumann’s rural home on the outskirts of Wausau and rushed Kara to the hospital. She was pronounced dead on arrival.
The county coroner ruled that she had died from diabetic ketoacidosis resulting from undiagnosed and untreated juvenile diabetes. The condition occurs when the body fails to produce insulin, which leads to severe dehydration and impairment of muscle, lung and heart function.
“Basically everything stops,” said Dr. Louis Philipson, who directs the diabetes center at the University of Chicago Medical Center, explaining what occurs in patients who do not know or “are in denial that they have diabetes.”
About a month after Kara’s death last March, the Marathon County state attorney, Jill Falstad, brought charges of reckless endangerment against her parents, Dale and Leilani Neumann. Despite the Neumanns’ claim that the charges violated their constitutional right to religious freedom, Judge Vincent Howard of Marathon County Circuit Court ordered Ms. Neumann to stand trial on May 14, and Mr. Neumann on June 23. If convicted, each faces up to 25 years in prison.
“The free exercise clause of the First Amendment protects religious belief,” the judge wrote in his ruling, “but not necessarily conduct.”
Wisconsin law, he noted, exempts a parent or guardian who treats a child with only prayer from being criminally charged with neglecting child welfare laws, but only “as long as a condition is not life threatening.” Kara’s parents, Judge Howard wrote, “were very well aware of her deteriorating medical condition.”
About 300 children have died in the United States in the last 25 years after medical care was withheld on religious grounds, said Rita Swan, executive director of Children’s Health Care Is a Legal Duty, a group based in Iowa that advocates punishment for parents who do not seek medical help when their children need it. Criminal codes in 30 states, including Wisconsin, provide some form of protection for practitioners of faith healing in cases of child neglect and other matters, protection that Ms. Swan’s group opposes.
Shawn Peters, the author of three books on religion and the law, including “When Prayer Fails: Faith Healing, Children and the Law” (Oxford, 2007), said the outcome of the Neumann case was likely to set an important precedent.
. . .
In the last year, two other sets of parents, both in Oregon, were criminally charged because they had not sought medical care for their children on the ground that to do so would have violated their belief in faith healing. One couple were charged with manslaughter in the death of their 15-month-old daughter, who died of pneumonia last March. The other couple were charged with criminally negligent homicide in the death of their 16-year-old son, who died from complications of a urinary tract infection that was severely painful and easily treatable.
“Many types of abuses of children are motivated by rigid belief systems,” including severe corporal punishment, said Ms. Swan, a former Christian Scientist whose 16-month-old son, Matthew, died after she postponed taking him to a hospital for treatment of what proved to be meningitis. “We learned the hard way.”
[Click here for the entire article.]Doug Kmiec, Obama, and All That ...
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The Magisterium and Me.... and Newman
There are a number of things about this conversation about "conservative" and "progressive" Catholics that make me feel as though, by blogging on MOJ, I am participating in an enterprise that is very alien to me. Many of them were nicely expressed by Amy and Susan.
In addition, though, I want to share two thoughts. First, I think a "conversation" such as this demonstrates some very real limits of communication by blogging. I sincerely wonder whether it is possible to have a productive exchange about a topic like this without being us being physically present to each other, so that we can see each other's expressions, hear each other's voices, even interrupt each other if necessary to stop someone from going too far when he gets carried away with a rhetorical flourish that would be more difficult to pull off face to face. So much of what we need to do in conversations like this is listen, hear, and respond. So much of what we might want to say is communicated not just by our words, but our demeanor, our expressions, our tones of voice, and the way our bodies react to what we are hearing. The love that we have to show to one another in keeping a conversation like this civil is not accessible in words printed on a computer screen. Personally, I am very uncomfortable getting engaged in this debate on this forum, for those reasons. (So I should just delete this post, right, instead of continuing. I know....)
Second, I think that any attempt to categorize people as "progressive" or "conservative" Catholics, based either on politics or on adherence to the Magisterium, reflects a simplistic notion of Catholic doctrine. Whatever the "Magisterium" is, it is simply not something that is reducible to the concerns on the forefront of the minds of a group of Americans in 2009. Whether defined narrowly as those things on which the Church has arguably spoken "infallibly" [a very, very narrow definition, indeed, but one that probably ought to at least include the Doctrine of the Immaculate Conception, which has not been proposed as sorting criteria in this discussions on MOJ], or more broadly, under whatever of the many varying definitions various Catholics have proposed over the years, the teachings of the Church are always limited, at the very least, by the fact that they represent man's attempt to express in the blunt tools of man's language, and man's capacity to use language, something that transcends our abilities to even understand fully -- divine revelation.
Those of you familiar with the work of John Henry Newman will recognize the influence of his writing (particularly, The Essay on the Development of Doctrine) on the preceeding paragraph. I'm going to end with a Newman quote, from Apologia pro Vita Sua , in which he uses vividly evocative language to express the constant tension between what I think Steve must mean by the "Magisterium" (Newman here uses the term "Infallibilty", but he understands it in the broadest sense of the Church's teachings) and the efforts of laypeople like us (and even theologians) to understand the Church's teachings and apply them. It's a messy, dynamic, process, that defies being captured at any one particular point in history. It's also a process that I might venture to suggest probably places every single one of us sometimes in Steve's "progressive" pile, and sometimes in his "conservative" pile, at different times and with respect to different Church teachings.
Every exercise of Infallibility is brought out into act by an intense and varied operation of the Reason, both as its ally and as its opponent, and provokes again, when it has done its work, a re-action of Reason against it; and, as in a civil polity the State exists and endures by means of rivalry and collision, the encroachments and defeats of its constituent parts, so in like manner Catholic Christendom is no simple exhibition of religious absolutism but presents a continuous picture of Authority and Private Judgment alternately advancing and retreating as the ebb and flow of the tide; -- it is a vast assemblage of human beings with wilful intellects and wild passions, brought together into one by the beauty and the Majesty of a Superhuman Power, -- into what may be called a large reformatory or training-school, not as if into a hospital or into a prison, not in order to be sent to bed, not to be buried alive, but (if I may change my metaphor) brought together as if into some moral factory, for the melting, refining, and molding, by an incessant, noisy process, of the raw material of human nature, so excellent, so dangerous, so capable of divine purpose.
Opaqueness
Much to my surprise, my posting the data below, on January 15, has led to such an interesting array of posts. So I'm posting the data again. But why? I wish I weren't so opaque--especially to myself! :-)
Data on "Total U.S. Population" from October 2008 survey by the Pew Research Center for the People & the Press. All other data from the Pew Forum's U.S. Religious Landscape Survey.
For question wording, see the survey topline.
1"Other Faiths" includes Unitarians and other liberal faiths, New Age groups and Native American religions.
Conservatives and Progressives: A Reader Responds
I think we have indvertently stumbled across a great conversation topic for our 5th anniversary. See posts here, here, here, here, here, here, and here.
MOJ reader Stephen Braunlich responds with these thought provoking comments:
"Prof. Shiffrin seems to be less concerned about drawing in progressives than he is more heterodox Catholics. His concern is not about getting more Catholics who think within the Magisterium in progressive ways, but about more Catholics who dissent from the Magisterium. These are, of course, two very different things; depending on the mission of MOJ the former ought to be more welcome than the latter.
If MOJ is attempting to develop Catholic legal theory -- and by that I mean a legal theory informed by the teachings of the Catholic Church -- it makes little sense to intentionally develop dissent around those teachings: you would be carving away at the very foundation you're trying to build upon. I cannot agree with Prof. Shiffrin that doing this would add anything to the richness of the site, either; the site is already a rich vein of thought. I love to watch the tension within orthodoxy that plays out between the (political) conservatives and progressives. Prof. Uelman's posts, for example, which are informed by the Focolare movement (which is aligned with the Magisterium), are fascinating, orthodox, and something that I don't find elsewhere.
Nor do I think that changing the definition from Catholic to something unmoored from the Magisterium would lend any richness to the idea of Catholic legal theory. In looking around, one can find sacramental theology, liturgical styles, and intellectual depth in a variety of different faiths. What sets Catholicism apart from them, though, is the authority claimed and coupled with all of the above. Indeed, it is also what makes it so applicable to developing a legal theory informed by it.
I do hope that MOJ does not make a concerted effort to attract more Catholics who disagree with the Church. I fear the result would lessen the Catholic identity of the blog, it's mission of developing a legal theory informed by the Church, and bog it down in dissent of doctrine rather than the development of its application."
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