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.

Tuesday, December 8, 2009

Robby responds to Chip (again)

By Robert George

I don't want to be too rough on Chip Lupu, but things get curiouser and curiouser, don't they?  Let's review the history.  A seasoned New York Times reporter quotes Chip making an accusation that impugns the motives of people whose views he disagrees with:  they are "fear-mongering."  I pointed this fact out in response to a post by Michael P. which asked:  "If [Chip] is wrong--as Robby asserts--why is he wrong?"  Michael P. then invited Chip to respond.  Chip submitted a comment saying the following:

"I was not happy with the attribution of the word "fear-mongering" to me in that story.  I never used it in talking to the reporter.  I did say, as I do believe, that the concerns and fears of the anti-same sex marriage movement are vastly overstated—that's an objective reference, relating their statement to the actual state of the law, and is not a subjective imputation of motives."

Having plenty of experience myself of being misrepresened and even misquoted by reporters, I immediately accepted Chip's account of the facts, expressing frustration, which I said I'm sure Chip shares, that a reporter would manufacture a quote from him in order to present him as impugning other people's motives when he had done nothing of the kind.  I said that such conduct on the part of a reporter is outrageous.  We have lots of disagreements on MoJ, but I suspect that not a single participant or reader of this blog would disagree with me about that.

But now Chip steps forward with another comment, one that begins by saying "[t]here is no point beating up on the New York Times."  And why should the Times reporter be given a pass when she manufactured a quote to present a source as impugning the motives of others?  Well, a bit more information now surfaces.  Chip reveals that the reporter actually read to him in advance the language she was attributing to him. He was given full notice that he was being presented as impugning other people's motives, but he did not object.  In defense of his permitting the reporter to present him as doing something that his first comment assured us he was in no way intending to do, he says "I did not know that 'fear-mongering' was in quotation marks."  But surely that doesn't matter.  If Chip didn't mean to impugn others' motives, he would have objected to being characterized as doing that, whether the word "fear-mongering" was in quotation marks or not.  But then Chip says that he "did not focus on the offending word until it was too late."  Well, okay, but it was rather a big thing to miss, and he obviously noticed that the term was being used in characterizing his view since he himself reports that he did not know or suppose that it was being put in quotation marks.  So, as I say, things get curiouser and curiouser.

Enough of that, though.  Let's turn to the substantive issue of laws that would, for example, force physicians and other health care providers who object to the taking of innocent human life to refer for abortions and even perform or assist in them in some circumstances.  Now, I don't want to question Chip's motives, because I know he is an honorable man,  But it seems to me that his argumentative strategy for justifying his endorsement of such impositions boils down to an effort to depict those on his side of the debate as sensible moderates standing aloof from the substantive moral disputes, who are objectively "balancing" competing "rights and interests."  (Of course, "balancing" of this sort will necessarily be by reference to some standard that will itself reflect a moral position; and that position will, in the end, dictate the result of the "balancing."  But lay that aside for now.)  Those of us who believe that doctors and others have a right not to be forced to implicate themselves in killing unborn human beings, and that entire fields of medicine should not be "cleansed" of Catholics and other pro-lifers who simply cannot, in conscience, comply with laws that would mandate them to participate in feticide, are depicted as "utterly insensitive to competing rights and interests."  It's the oldest rhetorical maneuver in the book.  And how convenient for abortion supporters, too.  Pro-life physicians, nurses, pharmacists, are left with the following options:  violate your consciences or leave your professions.

The final paragraph of Chip's most recent comment presents liberalism's "old time religion" on the role of religion and religiously informed moral judgment in public life and the formation of public policy.  It rehearses various implausible liberal dogmas, including the one that claims that deviations from liberal beliefs about sexual morality and marriage represent sectarian views that cannot be rationally defended apart from appeals to revelation and religious authority.  The truth is that there is a serious rational debate among intelligent and intellectually sophisticated people of goodwill about the morality of various forms of sexual conduct and the nature of marriage.  Religions have something to say on the subject; and religious people have every right to enter the public square and make their arguments in the languages of their traditions--just as they have done on everything from gladiatorial contests, to feuding, to slavery and civil rights.  Not just conservatives, but also liberals who recognize the flaws of their tradition's "old time religion"--I have in mind scholars such as Michael Sandel and Bill Galston--recognize that liberal views about sex and marriage have no right to prevail in the domain of policy or anywhere else by the dubious expedient of ruling competing views out of bounds.  Liberals, no less than conservatives, have an obligation to make their arguments about sex and marriage and answer the counterarguments advanced against them.

More on Cathy Kaveny's Argument (c) re. Conscience

By Thomas Berg

I'd like to second Bob Hockett in arguing that there's more to what Cathy labels argument (c) for accommodation of conscience than she gives it credit.  Cathy writes:

c. You could make an analogy to the Americans with Disabilities Act. You could say, "we have an objection to performing an act which is not an essential act of the job, and you should treat it like a moral disability--make reasonable accommodation."  This would get you coverage for the pharmacists, and most doctors--not OB/GYNS, probably. And people would have to admit their moral beliefs were a disability--that's a huge problem.

It seems to me that this conflates two analogies, or two components in the analogy, to disability/ADA.  One is the use of "reasonable accommodation" as the governing standard for conscienctious-objection claims as for disability claims.  The other is the use of disability as the analogy for why conscientious objections should be accommodated in the first place.  One can appeal to "reasonable accommodation" as a good standard for handling these cases (analogy #1) without thereby committing oneself to saying that the only normative ground for treating conscience as worthy of accommodation is that it's a disability (analogy #2, which Cathy finds "a huge problem").

"Reasonable accommodation" as a standard is simply the method of giving weight to a claim for accommodation (disability or conscience) but not absolute weight over other interests.  In this context, as Bob observed, it means something like, "Make accommodation unless the objection is to a substantial or essential element of the job" (as perhaps carrying a weapon is to policing, while performing abortions is not to medicine).  But the reasons why conscience is worthy of being accommodated are hardly limited to (although they might include) "conscience is like a disability."  The multiple reasons for accommodating conscience can include (i) the idea that it's at least partly involuntary ("I can do no other," which is sort of analogous to disability); but also (ii) people suffer particularly severely when pressured to give up or violate their conscience, especially religious conscience, because of the pervasiveness of religion to personal identity; and (iii) respecting conscience is an important way for the state to acknowledge its limited status.  (There are likely other reasons; and this is to say nothing of Cathy's argument (d), that the particular conscientious objection may be a reminder of a value that society wants to affirm even if it doesn't agree that the particular objection necessarily reflects that value.)

Whatever you think of arguments (ii) and (iii) above, the point is they are independent of the disability analogy.  But they might show that conscience is presumptively worth accommodating, and that we should draw on the disability standard as a workable one for calibrating the competing interests.

Monday, December 7, 2009

Hastings and the Christian Legal Society

By Steve Shiffrin

Just a few points to add to Tom's brief description of the case. The Christian Legal Society and any other student organization (even though not "recognized") is permitted to have access to the classrooms for meetings and the like, but it is not eligible to receive subsidies and a variety of other benefits so long as it discriminates on the basis of religion or sexual orientation. The district court maintained that Hastings was regulating conduct not speech. It admitted that the CLS was particularly hard hit, but argued that the purpose of Hastings did not involve viewpoint discrimination and that it was reasonable to require that organizations receiving subsidies be open to all students. It distinguished the expressive association cases on the ground that subsidies were involved here not a direct regulation of membership. It distinguished Rosenberger on the ground that viewpoint discrimination was present there.


"The Pro-Life Movement and Obama’s New Bioethics Commission"

By Michael Perry

Promising blog.  Thanks, Rob.  Interesting post, here.

"No Hidden Magenta" (new blog)

By Rob Vischer

Fordham theology prof Charles Camosy's new blog, "No Hidden Magenta: Bridging the Polarized Gap Between 'Red and Blue State' Groupthink," is worth checking out.  Early posts address health care reform, abortion, and President Obama's new Bioethics Commission. 

Cathy Kaveny on "Conscience and Culture Wars -- and Lawyers" (and on Rick Garnett too)

By Michael Perry

Read it over at dotCommonweal.  As of now, there are 53 comments!

Christianity in contemporary Europe

By Michael Perry

[Thanks to MOJ friend Pasquale Annicchino for this.]

from the December 05, 2009 edition - http://www.csmonitor.com/2009/1205/p09s02-coop.html

Christianity in Europe: A part of or apart from culture?

The Swiss minaret ban and the crucifix decision in Europe illustrate the disconnect between religion and culture there.

By A. Alexander Stummvoll

To read the piece, click here.

Notre Dame's Fr. McBrien on the state of the Catholic Church today

By Michael Perry

Fr. McBrien writes:

If anyone wonders why the Catholic church presents such a different face to the world and to the Body of Christ today in comparison with the world and the church of the 1960s and 1970s, we need look no further than the extraordinarily abbreviated pontificate of John Paul I.

. . .

Paul VI died of a heart attack at Castel Gandolfo Aug. 6, 1978, the feast of the Transfiguration. He had planned his own funeral. His coffin was at ground level, surmounted not by the papal tiara nor even by a miter or stole, but by the open book of the Gospels that fluttered in the light breeze across St. Peter's Square.

His successor was the Patriarch of Venice, Albino Luciani, who was the first pope to take a double name, to honor, he said, the pope (John XXIII) who had ordained him a bishop and who preceded him as Patriarch of Venice, and the pope (Paul VI) who had named him a cardinal.

In his remarks just before he gave the traditional Sunday blessing from the window of the Apostolic Palace (it was Aug. 27, the day after his election), he pointed out to the enthusiastic crowds below in St. Peter's Square, "Be sure of this: I do not have the wisdom of heart of Pope John. I do not have the preparation and culture of Pope Paul."

John Paul I was not only the first pope to take a double name; he was also the first pope in more than a thousand years to refuse to be crowned with the triple tiara.

Late in the evening of Sept. 28, John Paul I died of a heart attack while reading in bed. The Romans had taken such a liking to this humble, smiling pope that they reacted more emotionally to his death than they had to Pope Paul VI's only two months earlier.

The cardinal-electors rushed back to Rome in virtual shock, determined to elect someone with the necessary physical vigor to bear the burdens of the office.

The assumption was that the new pope would be another Italian, as had been the case for the past four centuries and a half. The leading candidate, Cardinal Giovanni Benelli, archbishop of Florence, had spent many years in the Roman Curia and, in the process, had made some enemies. There was also some resentment of the key part he had played in the election of John Paul I.

Although Cardinal Benelli received the most votes on the early ballots, he could not reach the required two-thirds necessary for election and his support began to wane. The cardinals then turned to the 76-year-old Cardinal Carlo Columbo, archbishop of Milan, but he announced that he would not accept election.

This left the Italians without a viable candidate, and so for the first time since 1522 they elected a non-Italian, Cardinal Karol Wojtyla of Poland, who took the name John Paul II.

Although he would do many good things in the 26 and a half years he occupied the office, John Paul II's appointments to, and within, the hierarchy were not among them.

And that is the main reason why the Catholic church is experiencing such difficulty today.

[Fr. McBrien is the Crowley-O'Brien Professor of Theology at the University of Notre Dame. His entire piece is is here.]


Quick Point on Cathy Kaveny's Observation

By Steve Shiffrin

Hello All,

I've been out of town and away from the present conversation, and am just now catching up.  (More on the interesting conference that had me away in a subsequent post presently.)  I do think I have a quick partial reply to Cathy, however, with which perhaps Robby and others will agree:

So I think that in a scenario like Cathy's 2, I would argue, for one thing, along lines of her option 2.d.  But I would also argue along another line that sort of fuses, in what I think more persuasive form, Cathy's stated options 2a. through 2.c.: 

I would first note that there are a very few quite morally fundamental issues (all of which seem to involve life or death) over which disagreement is and has always been widespread and profound, which we accordingly often call 'inherently contestible' issues.  I would then say that where somebody conscientiouasly holds a position in re such an issue which in good faith prevents her performing certain actions that represent a very small portion of the full set of those actions constitutive of a particular profession, accommodation is not only reasonable, but is both morally and, perhaps, legally (on 1A grounds) required.  One might indeed be incapable of being a conscientiously Catholic abortion clinic operator, for example; but it beggars belief to suppose that one could not be a conscientious Catholic doctor simply because one could not in good conscience perform one or two or three (life-taking) out the the literally thousands of (over-whelmingly life-ensuring or -saving) procedures that doctors characteristically perform. 

To take up one of Cathy's proferred analogies, by way of illustration:  It is of course true that we do not admit those who will not fire weapons to the profession of police officer.  But this would seem to be because, in the US at any rate as distinguished, say, from the UK, weapons-use is, for better or worse (I think maybe worse), at the core of the job. 

(Perhaps, by the way, we should indeed allow conscientious objectors to weapons use into our police forces.  It might be a very good idea, and even take us in the direction of the UK.  I'd go for that -- it might even be an instance of the good that Cathy sees promised by her Option d. -- at least if we could get Uzis out of the hands of crooks.  Real gun control laws might enable us to employ many more unarmed constables.) 

Now contrast the situation of the would-be non-lethal constable with that of Catholic medics, who object to only the tiniest fraction of procedures now considered 'medical.'  To my thinking, it would constitute an intolerable form of intolerance for the state to say, to so all-pervasively life-cherishing a healer as our envisaged Catholic doctor, 'no, you must be willing to perform this marginal killing procedure as well, on pain of prohibition from licensure to perform any of them, including the thousands of life-ensuring ones.' To me it would be disquieting indeed to learn that anyone thought this reasonable. 

I also am quite convinced, by the way, that I would argue this even were I the most militantly NOWish of 'pro-choicers.' Choice surely cuts both ways if it cuts any.  To say otherwise is surely to be, not pro-choice, but pro-conscription.

All best,

Bob   

Cathy Kaveny comments (with a question for Robby) in the wake of the Robby-Chip to-and-fro

By Michael Perry

[Cathy writes:]

I read the interchange between Robby and Chip a couple of times, with an increasing sense of disquiet.  Finally, I realized it is because the discussion is running together two distinct situations, which seem to me to need separate arguments. To see how this is the case, focus on the central case of "conscientious objection"--in American law and perhaps in American political morality:  the military and the pacifist.

The conscientious objection situation comes up  in its core form because a) the military wants to draft the pacifist; and b) coerce him to do things he doesn't want to do: kill people.  It's not, after all, as if the pacifist is banging down the door of the local recruitment center, saying a) let me join the military ; and b) by the way, you oughtn't make me kill people.

So how does this transfer to the current situation in the medical realm (I'm assuming no laws on the books)?  It seems to me we need to distinguish between two situations. 

1.  People who are already in the medical profession.  These people, it seems to me, have a strong case on exemption from new requirements to act in a way that violates their morality based in a reliance interest.  They joined the profession knowing they wouldn't have act in a way that violated their conscience, the professional entrance requirements are long, expensive, and difficult.  It imposes a hardship on them forcing them to choose to give up their jobs --their livelihood-- in order to act with moral integrity.  They have a right to continue on the terms they joined the profession.

2.  People who are not already in the medical profession.  These people have no reliance interest. They haven't made the investment in their careers--they haven't spent the money, the time, and the training.  They can act according to their consciences and earn a livelihood by going into a different profession. They're still young.  What they want is to say a) let me join the medical profession; and b) don't make me violate my conscience by acting in a way that I consider killing. Prima facie, they are in exactly the same position as the pacifist who a) wants to to join the army; and b) who doesn' want to kill.

I think the case for allowing conscientious objection is very strong and self-evident in case 1.  But it's harder in case 2--and that's the key case. The argument needs to be made that they ought to be allowed to enter into a profession, some of whose requirements are inconsistent with their view of the requirements of moral norms.  Suppose a legislative body said, "Okay, we'll grandfather in all people who won't do abortions, etc., for fairness reasons.  But we're not going to let anyone else in who won't do the job as the job is defined."  What do you say to them.?

a.  You could say, "well, we're right on the merits--abortion is intentional killing of the innocent." The problem with doing that, of course, is that in this scenario, you've already lost that argument. They're making the law, and they don't agree.

b.  You could say, "well, we have a right to go into the medical profession and not do procedures to which we morally object."  But why?  We don't say that people have a right to become policemen if they won't fire a weapon.  We say, "don't become a policeman if you don't want to fire a weapon." 

c.  You could make an analogy to the Americans with Disabilities Act. You could say, "we have an objection to performing an act which is not an essential act of the job, and you should treat it like a moral disability--make reasonable accommodation."  This would get you coverage for the pharmacists, and most doctors--not OB/GYNS, probably. And people would have to admit their moral beliefs were a disability--that's a huge problem.

d.  You could make a holistic argument. The vision of health care that is provided by pro-life doctors and nurses is a a radical witness to mercy--to the value of all life, to the unconditional demand for care. Having such a witness in the system is a leaven--it's worth the price people might have to pay in inconvenience in getting some procedures, because of the way in which their values vividly focus on the importance of each human life in the system.  The majority doesn't see the witness as inevitably connected to refusal to perform those procedures--but the people themselves do, and that's what's important.  I myself think this is the way to go.

At any rate, I would love to hear Robby's arguments based on conscience that address my scenario 2.

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