Mirror of Justice

Monday, June 22, 2009

Procreation and Homosexuality: A question

Michael P. posted an abstract to an article subtitled Same-Sex Couples and the Rhetoric of Accidental Procreation. In the article, the authors argue that same-sex couples "only procreate after considerable effort and forethought." I have a serious question that will appear like a smart-ass question. Can same-sex couples ever "procreate"?

Procreation and the Battle Over "Marriage"

By Michael Perry

Rob Vischer called our attention to David Novak's piece on same-sex marriage (here). As I read Novak's piece, I was reminded of a different piece I read recently, in the current issue of the Yale Journal of Law & the Humanities (vol. 21, no. 1, pp. 1-35): Kerry Abrams and Peter Books, Marriage as a Message: Same-Sex Couples and the Rhetoric of Accidental Procreation. (Abrams is an associate professor of law at the University of Virginia, and Brooks is Sterling Professor of Comparative Literature at Yale.) The abstract:

In his dissent in the 2003 case Goodridge v. Department of Health, Justice Robert Cordy of the Massachusetts Supreme Court introduced a novel argument in support of state bans on same-sex marriage: that marriage is an institution designed to create a safe social and legal space for accidental heterosexual reproduction, a space that is not necessary for same-sex couples who, by definition, cannot accidentally reproduce. Since 2003, every state appellate court considering a same-sex marriage case has adopted Justice Cordy’s dissent until the recent California Supreme Court decision In Re Marriage Cases. In case after case, courts have held that marriage allows states to send a message to potentially irresponsible procreators that 'marriage is a (normatively) necessary part of their procreative endeavor' and that same-sex couples do not need marriage because they only procreate after considerable effort and forethought. This article examines the accidental procreation argument through the lenses of anthropological theory, history, literature, and constitutional law. We conclude that marriage has sometimes been used to channel male heterosexuality into reproduction, but to argue that this goal is the sine qua non of marriage is to vastly oversimplify its history in both law and culture. We then undertake a genealogy of the accidental procreation argument and speculate about its possible effects on the institution of marriage. We suggest that if courts continue to insist upon a definition of marriage that is so distinct from the actual practice of the institution, the law may actually be less and less influential in regulating intimate behavior.

[The paper can be downloaded here.]

By Elizabeth Schiltz

In this article, "Why Care About Caregivers: Using Communitarian Theory to Justify Protection of "Real Workers," Nicole Porter presents a communitarian theory of greater support for caregivers. From the abstract below, it certainly sounds very compatible with the Catholic theory for the same that I have offered in some of my articles.

Both law and theory have failed to solve the caregiver conundrum for employees who experience conflicts between work and caring for their families. I call these employees “real” workers in contrast to what most employers expect of their employees, the somewhat mythical “ideal” workers, who never miss work or need time off for caregiving responsibilities. This Article proposes using the communitarian theory to justify protection of all caregivers in the workplace, including real workers. Communitarian theory’s emphasis on the priority of responsibilities over rights, the value of raising children well, and the importance of working together to reach a common goal provides the necessary justification for supporting broad reform efforts aimed at ending the caregiver conundrum for all caregivers, both real and ideal workers. This Article argues that communitarian theory justifies protection of real workers by overcoming two common hurdles to comprehensive reform for working caregivers. First, communitarian theory counters the rhetoric of choice by explaining that caregiving is a responsibility, not merely a choice. Second, this theory reduces the stigma of special treatment in the workplace by emphasizing the importance and benefit to all of society when parents raise their children well. Thus, a turn to communitarian theory can combat both the apathy and resentment of employers and co-workers alike. Put another way, communitarian theory explains why we should care about caregiving

Is an attorney's moral deference a problem?

By Rob Vischer

In light of our conversation about the Catholic legal thought project being too disconnected from the practice of law, I thought readers might be interested in this exchange about how lawyers should view their professional roles. The Northwestern Law Review Colloquy has published an essay by Michael Hatfield titled "Professionalizing Moral Deference." Hatfield uses the torture memos as evidence of a broader problem: our tendency to professionalize lawyers to view moral deference as a moral good. Here's an excerpt:

From the beginning of law school, a lawyer is idealized as a zealous advocate for her client’s objective. This biased zealousness is justified by an appeal to the adversarial American legal system. Each side has a lawyer, and each lawyer is devoted to one side. The professional role is to further the client’s objective, even if, personally, the lawyer opposes it. The young lawyer learns to defer to the client’s moral conclusions about the objective. But the young lawyer also learns to defer to the legal system’s conclusions that this is what lawyers should do. We are told to suspend our personal moral instincts and to have faith that the legal system accomplishes a greater moral good by our accepting a truncated personal moral role than it could accomplish if we accepted full personal moral responsibility for what we help our clients do. We are professionalized into believing that we are at no personal moral risk so long as we do a professional job (for which we will be well paid). We are told to accept the moral good of moral deference—both to our clients and to the system. We are professionalized to believe that moral deference is simply what lawyers do, as if it were a self-evident, natural principle that pardoned our moral misgivings.

I've written a response essay titled "Professionalizing Moral Engagement." Here's the opening:

In Professionalizing Moral Deference, Michael Hatfield argues that the way we form lawyers “begins with moral desensitization,” a technique that teaches future lawyers “to override [their] moral intuition.” In making his case, Hatfield offers the infamous torture memos as Exhibit A, but they may not be the best vehicle for proving his thesis. As the work of John Yoo shows, some of the most scandalously deficient legal advice may stem (at least in part) from the lawyer’s inability or unwillingness to override his moral intuition. There is no reason to believe, however, that Yoo’s moral intuition would have led him to reject the conclusions set forth in the memos, and there is some evidence that his moral intuition helped shape his analysis. Seen in this light, the memos could be construed—in direct opposition to Hatfield’s characterization—as evidence that law schools need to redouble their efforts to train lawyers to override their moral intuition. But this reaction would miss the partial truth underlying Hatfield’s analysis. The torture memos do underscore a desensitizing that afflicts many lawyers, though its implications are broader—and perhaps less insurmountable—than Hatfield describes. Although he is undoubtedly correct that lawyers should “stop telling [one another] that overcoming personal moral squeamishness is the great call of the law,” the law’s call is a bit more nuanced: although lawyers should not ignore their own moral squeamishness, neither should they wallow in it. The lawyer’s cognizance of her own moral intuition should mark the beginning, not the end, of her inquiry into the moral dimension of the representation.

So should Catholic legal thought buy into the notion that an attorney's moral deference to her client is a problem? My views are set out in the essay, and I'd welcome feedback.

Sunday, June 21, 2009

An SAT analogy? The election of JPII to the papacy is to the Soviet Union as the election of BHO to the U.S. presidency is to the Iranian theocracy

By Michael Perry

Well, just a thought, prompted by this piece.

Why should we respond to SSM by having the state get out of marriage?

By Rob Vischer

Over at Public Discourse, David Novak has a typically thoughtful take on same-sex marriage, and while I find the various elements of his analysis reasonable, I have a hard time connecting all the dots. He argues that a child has a natural right to be raised by his or her biological father and mother. The tricky part with this argument, of course, is what you do with adoption. Here's how Novak handles it:

Despite all my talk about natural parentage and childhood, I am in favor of the institution of adoption. Surely, a child’s right to being raised by adults is better upheld by adoptive parents than by natural parents, when these natural parents are unable or unwilling to raise their natural offspring. And, in principle, I am not opposed to a gay or lesbian couple being able to raise a child whose natural parents have abandoned him or her (whether voluntarily, or necessarily in cases of death or debilitating illness). Surely, a child is better raised by a couple who love him or her and each other than being raised in the less personal setting of an orphanage, or being raised by foster parents who are paid by the state to care for children nobody else wants, and who do so at less cost to the state than the cost of maintaining orphanages. Nevertheless, all things being equal, I think it is best that such an abandoned child be adopted by a heterosexual married couple rather than be adopted by a homosexual couple. That is because a heterosexual couple can better simulate—perhaps improve upon—the heterosexual union that produced this child and should be raising this child. It better simulates the duty of the natural parents to this child, a duty they would not or could not exercise. This, by the way, is not arguing empirically that opposite sex couples are necessarily better at raising children than same-sex couples. My arguments are based on the concepts of rights, not on the concept of utility. Thus my arguments are a priori, not a posteriori.

And then he concludes:

I agree with [Martha] Nussbaum when she says: “I personally favor the solution of leaving civil unions to the state and marriage to religions and other private entities.” In fact, for me, such a move would greatly strengthen the social prestige of religious marriage. Yet neither of us is willing to give up on civil marriage, at least not yet. I suspect that giving up on civil marriage now would be an admission of political defeat neither of us is willing to make. In Nussbaum’s case, that would seem to be an admission that the institution of civil marriage cannot be reformed to ever really include all those she wants included in it. In my case, that would seem to be an admission that civil marriage can never be restored to its richer and more coherent traditional meaning. However, since this society is so divided on this question, the disestablishment of civil marriage altogether and its total replacement by civil unions could well be the way this society might have to go for the sake of civil peace.

Here's where I have trouble following the logic: Novak asserts that the public reason of marriage is to "facilitate procreation and the exercise of parental rights and obligations as well as filial rights and obligations." If same-sex couples should be permitted to adopt children -- and indeed, if opposite--sex couples "are not necessarily better at raising children than same-sex couples" -- then why is the inclusion of same-sex couples so disruptive to the public rationale of marriage so as to justify disestablishing civil marriage altogether? (I know he's not calling for that, but he is open to the prospect that it might be the most sensible of the viable options.)

If the state has a role in supporting the commitments that are essential to stable and effective child-rearing, then why abandon civil marriage simply because the institution expands beyond its ideal form, especially since the new form, by my reading of Novak, still supports many (but not all) of the child-rearing goods promoted by marriage? (Obviously, marriage routinely -- nearly always -- is practiced in some sort of non-ideal form among these fallen human vessels, though SSM expands the non-ideal form categorically, under Novak's argument.)

Let me put the question somewhat differently: are committed same-sex couples who raise children together more like a traditional marriage, or more like any other civil contract with no capacity for, or inclination toward, the self-transcendence that should accompany marriage? Even if SSM is deemed to be closer to the latter, isn't ending civil marriage altogether a bit like throwing the baby out with the bath water? I can understand opposition to SSM, but I have a harder time understanding the argument that the proper response to SSM is to get the state out of the marriage business entirely.

Saturday, June 20, 2009

Thoughts and Action—Catholic Legal Theory

By Robert John Araujo, SJ

I am grateful to the previous interveners who have presented some important points regarding the role of Catholic legal theory in the daily work and lives of Catholic lawyers. I intend my small contribution today to complement what has already been presented.

I include myself amongst those who have questions, even suspicion, about some legal theories. In reading particular law review essays on “legal theory,” for example, I get the impression that their authors either have given little if any consideration to the application of what they have to offer, or if they have, they could only realize in practice what their theories espouse through a radical revolution in the economic, political, and legal structures and cultural institutions in which we exist today.

However, when it comes to Catholic legal theory, or at least what I think we are attempting to accomplish in this agora, I have a different outlook. While we may not often probe the ethical issues surrounding some aspects of the conduct of lawyers, such as reconciling work done and fees charged, we nevertheless do wrestle with fundamental issues that address the essence of the human person and his nature, the relation of the individual and the societies in which the individual exists, and the proper role that law may have involving these important matters that intersect the lives of everyone.

One individual who exemplifies this synthesis of theory development and practical application is Heinrich Rommen. As I page through his The State in Catholic Thought: A Treatise in Political Philosophy and The Natural Law: A Study in Legal and Social History and Philosophy, I encounter the mind of a great Catholic layman who was, as Russell Hittinger reminds us, not a theoretician so much as a practicing lawyer writing “in response to a political and legal crisis.” The crises of our day are different from those of the time in which Dr. Rommen wrote these remarkable and insightful texts. Nonetheless, I think that the contributors to the Mirror of Justice expend our humble efforts as Catholics to think about and write on what we understand to be the role of law in responding to the predicaments of the present age.

RJA sj

Friday, June 19, 2009

Thoughts about the Catholic Legal Theory Project on the Feast of the Sacred Heart

By Amy Uelmen

When I went to mass this morning, and heard the readings to celebrate the Feast of the Sacred Heart, I was taken by the beauty of the selection from the letter to Ephesians 3:8-12.14-19. Here’s a snippet: “…that Christ may dwell in your hearts through faith; that you, rooted and grounded in love, may have strength to comprehend with all the holy ones what is the breadth and length and height and depth, and to know the love of Christ that surpasses knowledge, so that you may be filled with all the fullness of God.”

The Gospel (John 19:31-37) then drove home just how fleshy is the whole endeavor: “But when they came to Jesus and saw that he was already dead, they did not break his legs, but one soldier thrust his lance into his side, and immediately blood and water flowed out.”

What I like about the questions of our thoughtful practicing-lawyer friend is that they seem to be a call for a deeper sense of the connectedness of the whole project. I wonder if the idea of a “root” and a “ground” – specifically in love – might be an interesting starting point in answering the question of what is the point of spending time working out a theoretical framework, but in a way that does not become disconnected from the lived experience, and in particular, the lived struggles and sufferings of humanity (including lawyers) around us – so as to ultimately surpass knowledge, and in some way touch the fullness of the experience of God.

I also thought it was interesting that so many of our practicing-lawyer-friend’s questions rang true for me, but I would have framed them not as a tension between practice and theory, but as a more feminine critique of the inaccessibility of theoretical abstractions; or in some contexts, as came up in our discussion of the documents, as a North-American critique of European tendencies to high (for me inaccessible) levels of abstraction.

I am a big believer in the importance of taking time to spin out a theoretical ground and framework for our scholarship. For me the highlight of the Conference on Catholic Legal Thought last week was the help that I received in working out what could be a fairly abstract argument about the relationship between law and morality as a grounding for my summer work in progress on duty to rescue. We wrestled quite a bit with the question of whether the underlying story we tell about rescue makes a difference, regardless of the legal outcome. But I do think that our practicing lawyer friend is right, that in the work of theory, we do need to keep in mind the “questions and needs of real people” – and perhaps having this as a focal point (or to put it another way, being “rooted and grounded in love”) might be the ultimate key to comprehension in any meaningful sense.

Finally, over the past week I have spent some time thinking about the journey of the CCLT since the initial 2006 brainstorm. At that initial gathering we faced a fork in the road: whether to focus more intensively and purposefully on projects to form the next generation of legal scholars in the Catholic intellectual tradition; or more on building an intentional community of mutual encouragement and support among those who are working in the field, with the secondary goal of initial and continued formation in the tradition. While the first remains a vitally important project and piece of unfinished work, we chose to take the second path.

As Susan and Rob already mentioned, the group includes a very diverse span of perspectives and approaches to the tradition. My Fordham colleague and others who were there for the first time were impressed to find in an academic environment such an encouraging, accepting atmosphere where one finds what I think is a rather extraordinary capacity to listen to and welcome each other across and within differences. As our culture, the blog world, and the church itself face the risks of increasing polarization, perhaps one of the real beauties of the CCLT project is the priority that it gives to building these kind of relationships, the space it fosters to be “grounded and rooted in love,” and in this way, to nourish an exchange which is all the richer because of the real differences in our theoretical, practical and experiential perspectives, perhaps even giving us a taste of the “breadth and length and height and depth” of God’s love.

What do lawyers need from Catholic legal thought?

By Rob Vischer

Marc DeGirolami adds these further comments to our discussion of CLT's focus on theory:

Part of the trouble with these sorts of discussions is that it is difficult to know exactly what lawyers "need" from Catholic legal thought. Sometimes what they need isn't what they think they need. Sometimes what they think they need is only one small tip of an iceberg that extends much further down than they know about, or perhaps even want to know about. And I hastily add that I am very much among those lawyers who do not know, but who want to know.

I am not in disagreement with your correspondent that it is foolish to ignore matters of practicality, or application. But I do very much think that it is unwise to tear away the top-most branch of a tree -- because the urgencies of the day-to-day are all too pressing, or because one just wants to be told the "takeaway" (an ugly, voguish phrase suggesting that what is not immediately consumable is probably useless anyway), or because one finds the branch especially aesthetically pleasing all by itself -- and expect that little fragment to live for long. The branch belongs to the tree. I am not suggesting that your correspondent thinks otherwise. Yet sometimes I wonder in discussions about theory and practice whether those "against theory" can really be against it and still retain a proper sense of intellectual self.