The concept of the common good, ancient in
origin, would seem on the face of it an ideal foundation for
health-care reform. We all get sick and depend on others to care for
us, and many of us will need expensive treatments that are beyond the
means of all but the most affluent. At the core of the idea of a common
good is the Aristotelian understanding of man as a social being—as well
as the understanding that, in the words of Pope John XXIII’s Mater et magistra, “individual human beings are the foundation, the cause, and the end of every social institution.”
Except for Catholics and a few others,
however, the common good as a moral value has little purchase in
American culture and politics. The closest some come is to speak of the
“public interest,” but that notion seems more political than moral,
useful perhaps but not quite the same. European health-care systems are
based on the idea of solidarity, which is closely related to the common
good, but the term “solidarity” has even less resonance here than the
term “common good” does. For Europeans, it is a matter of solidarity
that everyone have access to health care because it is a necessity for
human welfare; and government, they believe, is the appropriate
institution to guarantee this access. For Europeans, the 46 million
uninsured Americans, together with the excessively high cost of care
for those Americans who have insurance, is a source of astonishment.
How can an affluent, civilized country tolerate treating millions of
its citizens this way? Since every other developed nation provides
universal care, it is worth exploring why we are different and whether
anything can be done about it
The long awaited 4th Annual Scarpa Conference on Law, Politics, and Culture is approaching. This year's conference is a "celebration and exploration of the path-breaking work of Joseph Vining." Speakers include Jeff Powell, Steve Smith, Judge John Noonan, and many others. Congrats to our own Patrick Brennan for (another) great contribution to the Conversation. Go here for more info.
With recent positive developments in Connecticut, Vermont, Iowa, and New
York, mixed success in California, and setbacks in Arizona and Florida, the
marriage equality movement remains in the center of political, legal, and social
debate in the United States. Proponents have argued that granting the right to
marry to same-sex couples is compelled as a matter of simple fairness and
equality, while opponents have continued to make a host of related - but
unconvincing - arguments about the intrinsic meaning of marriage and how this
will be lost or compromised if marriage equality takes hold. But below this
turbulent surface, courts called upon to solve real problems confronting
same-sex couples have expressly or impliedly recognized that a much deeper
problem exists: the vast and often unexamined privileging of marriage over other
forms of family and other kinds of relationships. Legal scholars, too, have
questioned marriage - sometimes by focusing on the privileges that attach to it,
but sometimes more broadly, by questioning the status itself. These unavoidable
questions reveal that the controversy over same-sex marriage is but the most
visible part of a much larger set of issues about equality and social justice.
What public health and policy goals are we trying to further with laws
recognizing and subsidizing marriage? How do the signals sent by privileging
marriage advance or compromise those goals? Is there a continued justification
for marriage, and, if so, ought we consider changing its prerogatives in ways
that will further the public good? What might those ways be, and how will (or
could) we know whether we have succeeded? This brief Article raises and explores
these questions, and asks whether and to what extent the current privileging of
marriage is (or is not) justified.
I can join Robby in agreeing with Gerry Bradley's point about there being no morally neutral definition of marriage. But to the extent that Prof. Bradley seeks to establish that marriage should be defined in law as a procreative institution, I still have questions. Put simply, why must we define marriage as a procreative institution, rather than as a child-rearing institution? The examples he uses to buttress his claim of how the law protects the biological relationships within the family -- bans on polygamy, incest, adultery, fornication -- are noticeable for what is omitted: there is no mention of adoption. Should adoption be viewed as a concession to a fallen world, an exception to the procreative boundaries of marriage? Or should adoption be viewed as fully in keeping with the nature of the marital relationship, to be stabilized, protected, and even celebrated by our public understanding of why marriage is such a vital social institution? One concern I have is that, by defining marriage in a way that can logically exclude same-sex couples, we also marginalize family relationships that are not biological.
I should also note that I don't see Robby's arguments against same-sex marriage as exhibiting the same tendency, for he, at least in my reading, focuses more on the nature of the procreative act, rather than on the procreative origins of the parent-child relationship. I have no reason to believe that Prof. Bradley disagrees with those arguments, but he's emphasizing another aspect in this post, and that emphasis sends some significant, if unintended, messages about some relationships counting more than others. For Robby, my question has been whether the nature of the act can carry the normative/policy weight he places on it, and this in turn gets back to the question of whether I'm a hopeless instrumentalist . . .
The MoJ congregation will no doubt be divided in its reaction, but some might join me in shouting "Amen" to Gerry Bradley's piece, posted today at Public Discourse, entitled "All in the Family." On one of Gerry's central claims we may even have unanimity (though I can't say for sure, since I don't know whether there are any orthodox Rawlsians among us), namely, law and the state cannot be (not only should not be, but cannot be, so will not be) morally neutral with respect to the now controversial question of what marriage really is. In other words, if the law recognizes and honors marriages or sexual partnerships of any type, it will be favoring one substantive moral view of the meaning and value of marriage over competing conceptions. The key thing is for lawmakers to do their best to make sure that their handiwork embodies the soundest view. As to which view is the soundest, well. that's where disagreement breaks out in full flower. But if we're arguing about that, and not about moral neutrality, then at least we're having the right argument. Here's the link to Gerry's piece: http://www.thepublicdiscourse.com/2009/10/938
I certainly don't say "Amen" to Martin Marty's essay. I have no problem with your posting it, though. I'm not crying "foul." You made the judgment that it was something valuable and quite worth sharing with us, and that's fine with me. But I'm afraid it didn't provide me with an opportunity to say, "Amen! Attaboy, Michael! Great post!" That's because I think Dr. Marty's piece was weak. (On this point, of course, we have a friendly disagreement.) To some posts--even those that merely consist of calling attention to the work of someone else (perhaps adding, as you did in this case, an "Amen!")--some of us might be moved to say "Amen! That was really an insightful piece you called to our attention!" To others, we'll find ourselves unable to say "Amen!" Now, the folks sitting quietly in the pews (and they will be different ones of us at different times) won't be saying or implying that the post was offensive, or that the person responsible for the post was out of line. They won't be crying "foul!" But between "Amen!" and "foul!" there is a lot of room. In that vast space, one can acknowledge as perfectly legitimate all sorts of posts--including posts of whose content one is quite critical. So you were right to assume that, though I have a problem with Martin Marty's essay, I don't have a problem with your posting it. But having not been able to shout "Amen" this time, I do very much look forward to my next opportunity to say of something you post (perhaps something of your own) "Amen! Attaboy, Brother Michael! Preach it!"
... which is the cover story in the current issue of COMMONWEAL The subtitle of the essay: "Why Is Rome Investigating U.S. Nuns?" The essay is, in my judgment, brilliant, moving, and devastating. What do *you* think?
Here's what you said: "I wish I could reciprocate it by shouting 'Amen' to [Michael's] post of Martin Marty's essay entitled 'Evangelicaldom.'" I assume you don't have a problem with my posting Marty's essay. I assume you have a problem with Marty's essay. I assume you meant to say: "I wish I could reciprocate it by shouting 'Amen' to Martin Marty's essay entitled 'Evangelicaldom.'" Or do I misunderstand? Do you really want to take issue with my posting Marty's essay?
I appreciate Michael Perry's "Amen" to my post on The Wisdom of a "Liberal with Sanity." I wish I could reciprocate it by shouting "Amen "to his post of Martin Marty's essay entitled "Evangelicaldom." I'm afraid I can't though. First, I think that Dr. Marty, whose work on church history I admire, doesn't understand evangelical Christian conservatives at all well, and his animosity towards them is so intense (his protestations to the contrary notwithstanding) that it consistently generates unjustifiably harsh judgments against them. The essay itself is evidence of this. Second, the essay is just too partisan. Indeed, it is nearly mindlessly so. Anyone who thinks that that judgment might be too harsh can test it by the simple expedient of transposing the essay into a critique of the left, including the religious left, substituting names like "Kennedy" or "Clinton" for "Ensign," and names like "Olbermann," "Maddow," "Maher," and "Garafalo" for "Beck," "Limbaugh," "Hannity," and "O'Reilly." For Neal Gabler and his critique of conservative populism, substitute Charles Krauthammer and his critique of liberal messianism. For moderate conservative David Brooks and his warnings to those to his right, substitute moderate liberal Stuart Taylor and his warnings to those to his left. And so forth. In short, two can play at this game--which is a pretty good sign that it's hardly a game worth playing. In any event, it isn't likely to generate much illumination. It will do little more than provide opportunities for partisans on the opposing sides to take turns shouting "Amen!"
Now, this has little to do with "Catholic Legal Theory" (though we have talked often over the years about urbanism and the like), but . . . I am delighted to note the impending publication of this book, "Ordering the City," by the lovely and talented Prof. Nicole Stelle Garnett.
