Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, March 25, 2009

The state's obligation to protect conscience

By Rob Vischer

Over at the always interesting Public Discourse, Christopher Tollefsen has posted a short essay explaining why the government has a duty to protect citizens' consciences, and why President Obama thus should not repeal the Bush Administration's rules forbidding recipients of federal funding from discriminating against employees based on their moral or religious objections to providing certain services or procedures.  He writes:

[T]he protection of the integrity of persons from threats to those judgments of conscience that are articulated essentially in the negative—that I must not do such and such—has a claim to being among the fundamental purposes of the state in a way that the provision of benefits does not. It would, again, be a reversal of the normative order of priorities to compel violations of conscience for the sake of some otherwise foregone benefits.

But in at least some of the actions under consideration in the conscience regulations, health care professionals with certain moral convictions simply could not, consistent with those convictions, participate under any circumstances in the actions in question. A doctor who genuinely believes that abortion is an intentional killing of the innocent, and is always and everywhere morally wrong, cannot, consistently with that judgment, participate in an abortion procedure. Likewise, doctors who believe sterilization to be a form of mutilation simply cannot participate in such surgical procedures.

In these respects, then, were the new understanding of the conscience regulations to involve any weakening of the protections for healthcare professionals who refuse to participate in such procedures, they would constitute a fundamental injustice; a failure to protect against threats to the moral integrity of a large class of persons.

I often wonder in these discussions if much of the heavy lifting is being done, not by our conception of conscience in general, but by our own support for the particular conscience claim at issue: here, the sanctity of life.  What if, instead of talking about a physician forced by an employer to perform an abortion or provide the morning-after pill, we were talking about a Muslim taxi driver who refused to pick up a passenger carrying a bottle of wine, or a Muslim cashier who refused to scan pork products, or an evangelical bus driver who refused to drive a bus with an advertisement for a gay-lifestyle magazine?  Would we, with the same confidence, proclaim that the government's failure to forbid the employer from taking action against those employees was "a fundamental injustice?"  If so, are we really ready for the resulting transformation of our legal system and its definition of "reasonable accommodation?"  If we're not ready to extend liberty of conscience to the taxi drivers and cashiers, why not?  Is it because sanctity-of-life issues are more deserving of legal protection?  Is it a case of professional hierarchy -- physicians and pharmacists deserve moral integrity, but taxi drivers and cashiers don't?  Or is it something else?

Note that we are not talking about the need for self-restraint by the government when it comes to honoring a citizen's conscience, to which the traditional understanding of liberty of conscience referred.  We're talking about bringing government power to bear against non-state entities (including institutions that may seek to cultivate distinctive moral identities of their own) in order to ensure that a citizen can shape her professional role in a way that is consistent with conscience.  To be clear, I am all in favor of encouraging employers to be deferential to conscience.  But the notion that a fundamental responsibility of government is to ensure that citizens can enjoy full moral integrity in the workplace represents a potentially expansive vision of state power and a corresponding threat to intermediate structures.  

Eduardo Penalver on the right to housing

By Michael Perry

Definitely worth reading:  here.

Money, Power, the Financial Crisis and Disability Rights

By Elizabeth Schiltz

Reacting to my post about President Obama's special olympics joke, a reader reflected that he "could not help being struck by the contrast between this comment and Sarah Palin's promise that parents of children with special needs will have an advoate in the White House."  He continued with a line of questioning that I struggle with myself:

. . . the broader--and more important-- issue of why people with disabilities do not have a stronger political voice.  I realize that many such individuals--and of course children--are not in a position to wield political power.  Nevertheless, with rates of autism and other special needs increasing so dramatically, I am frustrated that parents of children with disabilities (let alone the children themselves) are not viewed with more respect in the political process.  . . . I imagine part of the problem is lack of organization, and I had hoped Sarah Palin's statement would energize an effort to empower parents to advocate for their children in the political arena.  Unfortunately, if the remark about the Special Olympics is any indication, I am no longer optimistic about this.

One of the things that's becoming increasingly clear to me about our current financial crisis is the nonpartisan nature of portion of the blame attributable to politicians who buried their heads in the sand as the mortgage bubble expanded and then began to explode.  Members of both parties were equally influenced by the substantial amount of campaign money flowing from the financial services industry. 

Conversely, it seems to me that both parties are equally influenced by the lack of money likely to flow from the coffers of the disability community.  The sad reality is that people with (at least the cognitive) disabilities are not in a position to wield political power.  Since people with cognitive disabilities might not vote, often can't speak for themselves, don't tend to be in a position to donate much money to candidates, and -- if we continue to perfect our technical ability to identify them before they are born -- will continue to shrink in number, politicians really don't spend much time (or political capital) on their needs.

This is what discourages me so much about politicians who take casual swipes at people with disabilities.  I think it reveals an (unconscious, I hope) assessment about the lack of any real political cost.

NDResponse

By Rick Garnett

Here is a link to the website of an ad hoc umbrella organization called "ND Reponse," "a coalition of University-sponsored student groups [that] has been organized to lead student response."  Here is a bit from their statement regarding the University's decision to honor Pres. Obama:

In defense of the unborn, we wish to express our deepest opposition to Reverend John I. Jenkins, CSC’s invitation of President Barack Obama to be the University of Notre Dame’s principle commencement speaker and the recipient of an honorary degree. Our objection is not a matter of political partisanship, but of President Obama’s hostility to the Catholic Church’s teachings on the sanctity of human life at its earliest stages. Further, the University’s decision runs counter to the policy of the United States Conference of Catholic Bishops against honoring pro-choice politicians. We cannot sit by idly while the University honors someone who believes that an entire class of human beings is undeserving of the most basic of all legal rights, the right to live. . . .

Mirror of Justice

By Michael Scaperlanda

MOJ is a name for Mary, but I did not know until today that it is also the title of a 1271 text by Guglielmus Durandus that became the basis for romano-canonical procedural law. That is, substantive law came in other texts, but procedure was developed in Speculum judiciale (Mirror of Justice).


Durandus studied canon law at Bologna and became a papal auditor (a judge dealing with appeals to Rome). The Speculum was a sort of conglomeration of earlier works, but the material was woven together in a way that made it easy to consult. It had four books:  legal action, civil procedure, criminal procedure, and precedents of pleading. Because of his contribution, later scholars consistently referred to Durandus as "The Speculator."

HT:  Christopher Scaperlanda

Tuesday, March 24, 2009

Leslie Green on Law as a Means, not an End

By Thomas Berg

Leslie Green of Oxford (who was my tutor there many long years ago) has posted a very interesting looking paper "Law as a Means."  I'm inclined to think that in certain forms, the view that law is most fundamentally a means to achieving ends is quite consistent with Christian thought.  It will be interesting, among other things, to pursue Green's reference to Aquinas:

This article defends legal instrumentalism, i.e. the thesis that law is distinguished among social institutions more by the means by which it serves its ends, than by the ends it serves. In Kelsen's terms, '[L]aw is a means, a specific social means, not an end.' The defence is indirect. First, it is argued that the instrumentalist thesis is an interpretation of a broader view about law that is common ground among theorists as different as Aquinas and Bentham. Second, the following familiar fallacies that seem to stand in the way of accepting the thesis are refuted: (1) If law is an instrument, then law can have no non-instrumental value. (2) If law is an instrument, then law always has instrumental value. (3) For law to be an instrument, there must be generic end that law serves. (4) If law is an instrument, law must be a neutral instrument. These claims are all wrong. In passing, the instrumentalist thesis is distinguished from other, unrelated, views sometimes associated with instrumentalism, including Brian Tamanaha's diagnosis of the vices of American law, and the views of those who think that jurisprudence is an instrument in the service of social ends.

Response to Steve re Mary Ann Glendon

By rstith

Very quickly, too quickly: Mary Ann Glendon's work has sought to show the range of responses that an honest confrontation with abortion can bring about. Rather than pretending not to know whether the child is alive and human a la Roe, Europe (at least at the time of her book) candidly admitted the truth but focused on problems of enforcement. She turned in particular to Germany, where the Court and the Legislature debated not whether but how best to protect the unborn child. Since it is so easy to keep a pregnancy hidden in the first 12 weeks, criminal law has little ability to stop such abortions (because no one but the mother and the abortionist know about them). But still, even in these early weeks, punishment can be withheld only if other, more successful methods of protection can be found. The Court here says that becuase the child is so dependent on his/her mother, it cannot ultimately be secured without changing the mother's will to be pro-life (in the first 12 weeks). This in turn is largely a problem of removing the obstacles (no apartment, bad work hours, oppressive boyfriend) that inhibit her natural motherly tendencies, and providing overtly pro-life affirmative supports (e.g. counseling which describes the child and his/her right to life).

Suffice to say that our US debates never get past square one because so many in the USA want to lie. (Though perhaps this is because we are MORE dedicated to human equality and therfore fear that admitting the truth will requiring punishing abortion exactly as we punish other murders.)

Naboth’s University and the Idea of a Catholic University

By Robert John Araujo, SJ

 

 

 

The kingdom of heaven is like a landowner who went out at dawn to hire laborers for his vineyard. After agreeing with them for the usual daily wage, he sent them into his vineyard. Going out about nine o’clock, he saw others standing idle in the marketplace, and he said to them, “You too go into my vineyard, and I will give you what is just.” Matthew 20:1-4

 

            The Gospel of St. Matthew provides a powerful reminder that those of us who profess belief in Jesus Christ and assume the responsibilities of discipleship have been invited into many vineyards where the Lord’s work can be accomplished. The clarion call is: “you too go into my vineyard.” For those who labor in the educational works that are identified as “Catholic,” the vineyard has frequently been the colleges and universities that bear the moniker “Catholic.” Indeed, those with whom they work in this particular vineyard—be they students, staff, faculty, or administrators—may well share in this mission because of their own discipleship of the one who came to save us from our sins. For others who do not claim discipleship in the Lord, the “Catholic” educational institution may simply be the place they go to school or to work. But surely for all who view the school as a vineyard of the Lord, the institution is the place where apostolic life is lived and fulfilled intellectually, spiritually, and physically.

            A question begins to emerge here regarding the objective of the Church and its members in the mission of Catholic higher education. For me as a Jesuit who tries to labor in the apostolate of Jesuit higher education, it is evident that these enterprises are guided by a fundamental principle of the Formula of the Institute (the Papal Bull confirming the Society of Jesus), which is: “to strive especially for the defense and propagation of the faith and for the progress of souls in Christian life and doctrine, by means of public preaching, lectures, and any other ministration whatsoever of the word of God, and further by means of the Spiritual Exercises, the education of children and unlettered persons in Christianity, and the spiritual consolation of Christ’s faithful through hearing confessions and administering the other sacraments.” I think that this rubric is shared by most institutions of learning that rely on the modifier “Catholic.”

            In a sense, this work continues to the present moment in educational institutions situated across the world. It should be noted that the Christian nature of the Catholic schools in the United States is shared with the establishment of many of the great European institutions such as Oxford, Cambridge, Paris, and Bologna, which at their respective inceptions were communities of Christian students, teachers, and scholars. A parallel Christian inspiration, albeit Protestant, was the raison d’être of the earliest institutions of higher learning in the United States. To this day, one can walk around Harvard Yard in Cambridge and still read inscribed on the university seal that adorns some of the fencing and gates: “Veritas pro Christo et Ecclesia”—Truth for Christ and the Church. Among all of these schools’ foundation—Catholic and Protestant—was the synthesis of Christian faith, reason, the advancement of learning, and the cultivation of wisdom. However, with the progress of time, the Christian core of these institutions has begun to fade.

            This development prompted Dr. George Marsden (a distinguished history professor at Notre Dame, although himself not a Catholic) to publish in 1994 The Soul of the American University: From Protestant Establishment to Established Nonbelief. The term soul is not without significance in his title as Dr. Marsden has explained the loss of Christian identification and, therefore, soul in some of the most prestigious colleges and universities in the U.S. that had Christ at their foundation. A year before Marsden’s book was published, Chris Reidy, a staff member of the Boston Globe, wrote a fascinating report about the transformation of Boston College, founded by the Society of Jesus in 1863. He chose as the title of his investigation, “BC Hitting the Heights” (the term ‘Heights’ being a popular local moniker that is used as a synonym for Boston College). In the sub-caption, Reidy posed an important question: “Boston College Has Seen Enormous Growth Over the Last Few Decades. But in going from working-class commuter school to ‘Chestnut Hill University,’ has it lost its soul?” [The italics are mine] Once again the term soul features in an important account of the decline of the Christian identity of an institution—in the case of Boston College, a Catholic Christian identity sponsored by the work of Jesuits—work that is supposedly directed by the Formula of the Institute. One wonders if the same concern might apply to Notre Dame these days.

            The Marsden and Reidy treatments provide opportunity to reflect on the nature of Boston College, Notre Dame, and most other institutions which share a common mission “to strive especially for the defense and propagation of the faith and for the progress of souls in Christian life and doctrine…” Today this founding directive seems, at best, to be but one voice among many that relate to the existence and mission of the college or university that persists in claiming Catholic identity. One justification given for the transformation and, consequently the loss of soul, is the impulse “that we need to be as good as any other [secular] school.” A further justification offered in the past for the makeover was to qualify more easily for state money, which of course was easier to get the more secular the institution. But as Jesus Christ reminds us, “For what will it profit one, if he gains the whole world and forfeits his life (soul)?”

            In spite of this transformation that denies the institution’s soul, there remain those in the vineyard of education who have not forgotten the soul of the Catholic institution, and for these efforts much gratitude needs to be expressed. For it is these students, faculty, administrators, alumni, and friends who recognize that for the school to be true to its soul it is not only permissible but a sine qua non to be willing to investigate questions that other institutions would never think of pursuing—questions leading to the destiny of the human person that inevitably connect to “the defense and propagation of the faith” and “the progress of souls in Christian life and doctrine.” While the contemporary educational environment of specialization and fragmentation of academic life and the secularization of the institution that supports it may be attractive to some, this atmosphere is alien to the essence of Catholic education.

            Nonetheless, the work of Christ’s disciples must continue. The temptations that have lured some institutions of higher learning to forfeit their souls should not provide any justification for institutions like Notre Dame to do the same. It is with this thought that I turn to a story about another vineyard owned by Naboth:

Some time after this, as Naboth the Jezreelite had a vineyard in Jezreel next to the palace of Ahab, king of Samaria, Ahab said to Naboth, “Give me your vineyard to be my vegetable garden, since it is close by, next to my house. I will give you a better vineyard in exchange, or, if you prefer, I will give you its value in money.” “The LORD forbid,” Naboth answered him, “that I should give you my ancestral heritage.” 1 Kings 21:1-3

 

The ancestral Catholic heritage of educational institutions such as Notre Dame dictates that they should not abandon their role in advancing reason that needs faith and faith that relies on reason so that the defense and propagation of the faith and the progress of souls in Christian life and doctrine. This is an ancestral heritage that not only retains great value but is one that exists to advance the greater glory of God and to engage God in the tangle of his mind, if I may borrow from Thomas More and Robert Bolt. However, by honoring the President—who, I believe, could be an appropriate speaker at some other Notre Dame gathering at which he is not being honored—God’s glory and the Church’s dignity are plundered because the temptation of the world divorced from the Church and her teachings beckons in its luring temptation that has regrettably succeeded.

 

RJA sj

 

Honoring President Obama at Notre Dame

By Michael Scaperlanda

With Amy, Rick, and Richard M., I am all for a university - especially a Catholic university - being a place of dialogue and exchange leading to growth in mutual understanding.  John Paul the Great reminded us, with the theme of his pontificate, that we should "be not afraid." Therefore, a Catholic university should be not afraid to dialogue and exchange views on any topic with President Obama or any of his surrogates.  But, as Rick and Richard M. have pointed out,  honoring the President and giving him a commencement platform (not really a great forum for dialogue and exchange) is a very different matter and sends a very different signal.  In short, I agree with Rick and Richard M. that ND should not have invited the President to be the commencement speaker and to receive an honorary degree.

With that said, I want to reiterate something Rick said.  Notre Dame is and remains a wonderful gift to the Church and to the nation.  Two of my children are graduates of ND, and I will literally be paying for their education for the rest of my life (well, at least into my late 70's).  I have not once regretted the financial sacrifice.  In fact, I thank God every day for providing us with the grace to make the leap of faith (and considering the financial commitment, it was a leap of faith) to send them to Notre Dame. 

At the undergraduate level, the ability to take classes from and be mentored by the likes of Alasdair McIntyre, Brad Gregory, Fr. Miscamble, Cyril O'Regan, and others like them is a tremendous and maybe unparalleled opportunity.  The level of intellectual engagement with peers outside of class is great, at least if the student seeks it, as is the faith community formed by these students (and professors).  The Catholic intellectual life outside of class is vibrant  Dorm masses, the dorm system, the dorm rectors all contribute to a distinct Catholic identity.  The service learning opportunities all over the world help students to form their characters according to the lines of thinking developed by Pope Benedict in Deus Caritas Est.  The Center for Ethics and Culture is a real gem and hundreds (if not thousands) of students participate in events and conferences sponsored by the Center.  I could go on and on, but I'd probably start bragging about my kids, so I'll stop now.  

Glendon and Abortion

By Steve Shiffrin

I have a question to ask about the Notre Dame award to Mary Ann Glendon. I recall her excellent book Abortion and Divorce in Western Law as taking a relatively moderate approach to abortion. It opposed the U.S. approach, and, as I recall, endorsed the approach taken in many European countries. That approach, as I recall, raises moral questions about abortion generally and legally regulates abortions beginning in the second trimester, but does not outlaw abortions in the first trimester. She called for compromise on the issue, a position quite different from the Vatican. Is my recollection incorrect? Has she changed her position? If not, I would have thought that some (not me) would be questioning an award to her by a Catholic university.

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