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.

Saturday, February 27, 2010

The Battle of Hastings

By Rick Garnett

Here is Joe Carter, at First Things, writing about the upcoming Martinez case (in which Tom Berg and I filed an amicus brief), "The Battle of Hastings" for religious-liberty.  He quotes a passage from the lead brief in the case:

A “variety of viewpoints” is far more likely to be achieved when students are allowed to sort themselves out by interest and viewpoint—Republicans in one club, Democrats in another; Muslims in one organization, Lutherans in another. Without such sorting, all viewpoints are blurred. The Democratic Caucus becomes the Bipartisan Caucus; the Christian, Jewish, and Muslim clubs become the Ecumenical Society; and every other group organized around a belief becomes a Debate Club. Each group becomes no more than its own diverse forum—writ small. The all-comers rule thus defeats the very purpose of recognizing any group as a group in the first place. Preventing students from organizing around shared beliefs does not foster a robust or diverse exchange of views.

Exactly.  Genuine "diversity" in a conversation is promoted if the participants in that conversation do, and are permitted to, be distinctive. 

Appleby on "'Religious Freedom' and its Critics"

By Rick Garnett

Here is Prof. Scott Appleby, writing at "The Immanent Frame," about a "Task Force Report" issued by The Chicago Council on Global Affairs, entitled “Engaging Religious Communities Abroad: A New Imperative for U.S. Foreign Policy.”  Explaining the "scare quotes" around "religious freedom," he writes:

. . . While the members of the task force share a commitment to religious freedom as a universal human right—one enshrined not only in the U.S. Constitution and the Universal Declaration of Human Rights, but also, with various degrees of impact on actual policy, in the constitutions of dozens of nations around the world—there was disagreement among us, cordial but occasionally sharp, about the relative weight to be given in the TFR to direct advocacy of the right by the federal government.

Those who were most uncomfortable with making religious freedom the headline tended to imagine the term in ironic scare quotes. “Religious freedom” is perceived by many peoples around the world, not least Muslims of the Middle East, they argued, not as a universal human right, but as a superpower-charged means of advancing hegemonic U.S. (read: Christian or, worse from their perspective, Judeo-Christian) interests. This particular strain of anti-Americanism is inflamed by isolated episodes of Christian missionaries proselytizing defiantly (or clumsily) in settings where they were manifestly unwelcome, and thereby igniting riots and sometimes deadly violence. More broadly, some suspect that missionaries, preachers, or U.S. government agents (sometimes conflated in the anti-American imagination) seek to impose on vulnerable populations “The American Way of Religion”—i.e., voluntarism, church-state separation, a free marketplace of religious ideas—which foreign opponents of U.S. influence believe to be anything but a universal human good. . . .

Read the whole thing.

"Corporate personhood"

By Rick Garnett

Mark Mitchell, at the (wonderful) blog "Front Porch Republic" -- taking a cue from our friends at Commonweal, apparently -- links here to Stephen Colbert's riff on "corporate personhood" (and hilarity ensues).  Mitchell writes:

Corporations today are considered legal persons. This means that they enjoy the protections of the 14th amendment which implies that the bill of rights applies to “corporate” persons as well as “real” persons. But corporations are not persons. They are not alive. They are not even dead. They do not have natural life spans. They are not mortal creatures whose essential mortality induces reflection on the ultimate meaning of life and leads the wise to live out that brief existence with an eye to what matters most. A corporation never dies a natural death and therefore lacks the natural incentive to live a life that includes dying well. An immortal person is a god. By calling a corporation a person (whose charter is for perpetuity) have we created a strange new god? A new idol before which we prostrate ourselves? The corporation, rightly conceived, is to serve human beings. Corporate personhood has the effect of  blurring this goal and reversing the relationship.

Arguments like this have been thick on the ground (or in the air?) in the wake of the Citizens United case (which was, in my view, correctly -- if perhaps overbroadly -- decided).  In my view, the "corporations are not alive, etc." argument misses the point (at least, it misses the point of the Court's free-speech caselaw).  The issue is not so much whether or not "corporations are . . . persons" that "enjoy the protections" of the 14th Amendment.  Rather, the issues is about the nature of the constraints that the First Amendment places on government regulations of political speech (and political ads, even if paid for by corporations, remain "political speech").  In my view, the First Amendment embodies a strong "no government distortion or manipulation of the content of political expression and debate" norm.  When applying this norm, it seems to me more important to focus on what the government is doing than on who (or what) it is doing it to.

Obscenity, Pornography, and Vagueness

By Steve Shiffrin

Many of my students think it obvious that obscenity and pornography statutes are too vague. When I ask my students whether they think it should be unconstitutional to prohibit the distribution of obscene materials to children, they overwhelmingly respond that such a prohibition should be upheld. This vagueness, they can live with.

When judges are asked to declare a statute for vagueness, their analysis ordinarily goes something like this: “The statute is unreasonably vague.” Or “No it’s not.” It is child’s play to observe that any statute has vagueness issues. Even an overbroad, but seemingly precise statute, that forbids the use of the name Obama in a sentence could give rise to questions about the meaning of a sentence in particular circumstances.

The best opinion I know of in attempting to analyze a vagueness claim is that of Justice Brennan in the obscenity context. He argued that the degree of vagueness one tolerates depends upon the severity of the state interest and the possibility of a clearer formulation. Accordingly, he thought a statute forbidding the distribution of obscene material to adults should be unconstitutional (no significant enough interest involved), but a statute prohibiting distribution to children or unconsenting adults should be constitutional.

At the time, Brennan, of course, did not know of the research assembled by Malamuth and others. But any assessment of a vagueness claim regarding pornography would have to take it into account. In assessing the vagueness claim, MacKinnon would do more than cite the seriousness of the harm. She would point to the fact that there is a core of clear meaning and that core involves billions of dollars of material distributed each year. She would observe that other pockets of first amendment law are equally unclear. What is defamatory? Who is a public figure? What is fair use? There are clear cases, of course, but notorious vagueness as well.

And, of course, obscenity law is vague, but beneath the protection of the first amendment. One could argue that MacKinnon’s pornography ordinance is clearer than obscenity law. Obscenity law, to oversimplify a bit, generally outlaws the distribution of patently offensive materials that appeal to prurient interests, materials that lack serious literary, artistic, political, or scientific value. MacKinnon’s ordinance forbids the distribution of materials that involves the graphic sexually explicit subordination of women through pictures and/or words that also includes one or more of a number of specified factors, such as women presented as sexual objects who take pleasure in being raped (some factors are clearer than others – good arguments exist for the view that some of the factors should be omitted). MacKinnon’s ordinance has no value test, but, if one were added, the pornography ordinance would be less broad and clearer than the obscenity category. Indeed, it would identify a class of material that is patently offensive and appeals to prurient interest.

Crossposted at religiousleftlaw.com together with a post on Pornography and Liberals and more later on the connections between Obscenity, Pornography, and Catholic Legal Theory

More on conscience at BYU

By Rob Vischer

A few other highlights from today's conscience conference at BYU (earlier posts here and here):

Wash U law/med prof Rebecca Dresser explained an "institutional" approach to conscience, asking institutions to take steps to minimize cases in which individual objections jeopardize health care.  As a self-identified "pro-choice liberal," she welcomes the conversation about conscience in health care because the concerns raised by objectors can help encourage society to think about and reflect on what we want to do (and do not want to do) in health care.  Right now it's a laissez faire approach in terms of new techology -- we aren't having serious moral conversations about where we're headed in areas like cognitive enhancement, and the type of concerns raised in the conscience debate can help create space for those conversations.

BYU law prof Cole Durham argued for an "integrationist view" of law under which conscientious objection is not a tolerated exception to the general rule, but part of the rule structure itself in light of the Constitution's protection of religious liberty.  Ave Maria law prof Richard Myers countered that the First Amendment does not supply much of a basis for conscience protection, and didn't supply one even before Employment Division v. Smith.  He also cautioned against a constitutional law approach to conscience (rather than a statutory approach), for fear that it could contribute to a trend toward privatized religion and a loss of public morality. 

BYU law prof Lynn Wardle argued that Roe v. Wade and Doe v. Bolton provide a foundation for a right to conscientious objection to participating in abortion, both because of the statutes at issue and because of the Court's focus on the privacy right that attaches to the doctor-patient reationship.

USF philosophy prof Tom Cavanaugh attempted to distinguish between "professional conscientious objection" (understood as accessible claims) and "religious conscientious objection" (understood as inaccessible claims), and between conscientious objection to a type of intervention (worthy of recognition) and conscientious objection to the patient requesting the intervention (not worthy of recognition).  I'm not sure he persuaded me of the workability of either distinction, but he had some thought-provoking suggestions for how to navigate the conflicts.

Other papers focused on practical resolutions to real-world conscience clashes.  My own contribution focused, not surprisingly, on the implications of conscience's relational dimension for health care.  I'll try to post the paper within a week or so.

Friday, February 26, 2010

A Catholic Justification for Waterboarding? No Way!

By Michael Perry

These days, when "liberal" Catholics and "conservative" Catholics agree about something, that's news ... of the "man bites dog" variety.  More importantly, when LCs and CCs agree about something, that's the Holy Spirit speaking, yes?  Read all about it in the "Beliefs" column of the NYT, here.

Ireland and the Church, con't

By Michael Perry

For those of you following this story, the commentary in this week's The Tablet is worth a read.  Available in full here.  An excerpt:

Too little, too late, again

Irish abuse scandal

David Quinn

The Irish hierarchy’s meeting with Pope Benedict last week raised huge expectations in Ireland. But the outcome has done nothing to calm the anger felt by many towards the Church following the publication of the Murphy Report on abuse in the Archdiocese of Dublin

Exactly what was discussed at the two-day meeting between the Pope and Vatican officials and the Irish bishops is not clear. What we do know is that its immediate aftermath turned into a PR disaster of considerable proportions.

The disaster began with the lunch-time publication on Tuesday last week of a statement summarising some of what was discussed at the meeting. It described how the meeting discussed “the serious situation which has emerged in the Church in Ireland” and “the failure of Irish church authorities for many years to act effectively in dealing with cases involving the sexual abuse of young people by some Irish clergy and Religious”.

It spoke, correctly, of the “thousands of trained and dedicated lay volunteers at parish level” who help to implement the Church’s now robust child protection policy. It urged the bishops to “face the present crisis with honesty and courage”. But the victims, and the assembled Irish media, were not to be placated. For example, the statement was attacked as “a cynical exercise” by a prominent abuse victim, Colm O’Gorman, now head of Amnesty International Ireland.

It was condemned because it contained no word of apology from the Pope himself, no acknowledgement of a “cover-up”, and no forced resignations of further Irish bishops.  By mid-afternoon, when Cardinal Sean Brady headed a press conference in Rome organised by the Irish bishops, the media narrative was already set in stone. The victims were angry, they felt betrayed, the Church had let them down, yet again. The questions from the assembled Irish journalists reflected this mood. . . .

Perhaps this shows that the Vatican was still underestimating the extent of public anger in Ireland. It could hardly be under-estimating it now. The mood is so bad that it is now common to find calls in Irish newspapers, and on the airwaves, for the Government to sever diplomatic ties with the Holy See, and not only because of the scandals, but also, for example, because the Vatican is “misogynistic”, in its ban on women priests.

The Vatican has been described by respected commentators as a “foreign dictatorship”. Another commentator in all seriousness called on the Government to establish a panel that will oversee the appointment of bishops. Even the kissing of the papal ring by the bishops when they are greeted by the Pope has been viewed negatively, much as an old-style Irish nationalist might view bowing to the Queen of England. In fact, it might be said that in Ireland “Church-bashing” has become the new “Brit-bashing”. . . .

Andy Koppelman responds to Robby George

By Michael Perry

[This is Andy's post at Balkinization:]

Friday, February 26, 2010

Koppelman vs. George on same-sex marriage

Andrew Koppelman

Prof. Robert George of Princeton, on the Mirror of Justice blog (a first rate blog of Catholic legal theory), responds here to a paper I recently posted on SSRN. Robby (an old friend from my days teaching at Princeton) thinks that my defense of same-sex marriage is incoherent. I think the incoherence lies in his opposition to it.

You’ll have to decide which of us is right.

Here’s the abstract of the paper, Careful With That Gun: Lee, George, Wax, and Geach on Gay Rights and Same-Sex Marriage:

Many Americans think that homosexual sex is morally wrong and oppose same-sex marriage. Philosophers trying to defend these views have relied on two strategies. One is to claim that such sex is wrong irrespective of consequences: there is something intrinsic to sex that makes it only licit when it takes place within a heterosexual marriage (in which there is no contraception or possibility of divorce). Patrick Lee and Robert P. George have developed and clarified this claim. The second strategy focuses on consequences: the baleful effects on heterosexual families of societal tolerance for homosexuality. Amy Wax (who is not a clear opponent of same-sex marriage, but who is worried by it) has tried to array evidence to support the second. Mary Geach has developed a novel hybrid, relying on the second argument to support the first one. Both strategies fail. The first cannot show that the intrinsic goodness of sex is at once (a) derived from its reproductive character and (b) present in the coitus of married couples who know themselves to be infertile, but not present in any sex act other than heterosexual marital coitus. As for evidence of bad consequences of tolerance of homosexuality, the evidence is all the other way.

I specifically cast doubt on the claim made by Robby and others that the intercourse of infertile heterosexual couples is “oriented to procreation.” I write:

"My action can make sense as part of a process, can take its meaning from its role in facilitating that process, only if the process is known to be capable of completion. This is true even if the success of the project is unlikely. But it is not true if success is impossible. A surgeon trying to save the life of a gravely sick patient is engaged in the practice of medicine even if the patient‟s death is almost certain. No guarantee of success is necessary. (Little human endeavor comes with a guarantee of success.) So long as the patient is alive and the surgery even marginally increases the likelihood of the patient's survival, then the surgeon's behavior makes perfect sense. He is engaged in a medical-type act. Whether it is a medical-type act now cannot depend on events that occur only later, such as the patient's recovery. But what would we think if the surgeon performed exactly the same actions, involving the same bodily motions, when the patient is already dead?"

Robby now challenges me to explain why my defense of same-sex marriage doesn’t entail endorsement of polygamy: “the redefinition of marriage to remove the element of sexual complementarity perforce eliminates any ground of principle for supposing that marriage is the union of two persons, as opposed to the union of three or more in a polyamorous sexual partnership.” How can my endorsement of same-sex marriage avoid this result?

As it happens, I don’t have strong views on the polygamy question. I don’t think my views on same-sex marriage entail anything about polygamy, either way. I take marriage for granted as a social institution that we’ve inherited, and I try to see whether there is any coherent reason for excluding same-sex couples from that institution. I don’t think that I need to think my way through the polygamy problem in order to address Robby’s challenge.

But let’s stipulate, for the sake of argument, that polygamy is bad and there is a sound argument against it. Call it the Compelling Antipolygamy Argument. Robby’s claim is that (1) his conception of marriage is the Compelling Antipolygamy Argument, (2) his conception can explain why polygamy is wrong, and (3) his conception also condemns same-sex marriage. (Incidentally, I don’t see how, even if one stipulates (1), you can get from there to (2), since a man can have relationships which are oriented to procreation with more than one woman.)

Implicit in his challenge is the claim that there is no sound argument that excludes polygamy without also excluding same-sex marriage. I don’t know if that is true. But I don’t need to know, because it’s enough to show that (1) cannot be the case. This is because (1) posits an entity - the one-flesh union of male and female in an act of procreative kind, which comes into existence even in the union of the infertile heterosexual couple - that is not intelligible. Its unintelligibility casts doubt on its existence. Whether or not there is a Compelling Antipolygamy Argument, this can’t be it.

It is as if someone were to argue that (1) Beethoven’s Second Symphony has polka dots, and then claims (2) that it follows from this that polygamy is wrong. It’s mysterious how (2) follows from (1), but the argument doesn’t even get that far, because (1) doesn’t make a lick of sense. We can stop there.

(I should add, in closing, that having Robby as a colleague was one of the best things about being on the Princeton faculty, and that I’m very pleased to be duking it out with him again.)

"Social Issues: A Catholic Perspective"

By Michael Perry

[John Allen writes in his Friday column:]

Fans of the budding corpus of Catholic social teaching sometimes refer to it as the church’s “best-kept secret,” an indirect way of lamenting that recent Catholic teaching on the economy, war and peace, the environment, and other matters of social concern is not better known – either in the pews, or in the outside world.

One creative response to that frustration now comes from England, in the form of a new bi-monthly magazine called Justice, with the subtitle “Social Issues: A Catholic Perspective.” It’s put out by Gabriel Publications, which publishes The Universe, Catholic Times and Catholic Life in the U.K.

The thrust of the magazine is to apply the lens of Catholic social teaching to the whole panoply of global humanitarian concerns, whether it’s good governance in Africa or controversies over blasphemy laws in Pakistan. The magazine calls on a stable of talented journalists; for example, in one recent issue, veteran Rome correspondent Gerry O’Connell interviews Archbishop Lauren Monsengwo Pasinya of the Democratic Republic of Congo about the “silent genocide” being fueled in that nation by a global scramble to exploit mineral resources.

Alas, not much of the content is available on-line, but the magazine does have a web site at www.justicemagazine.co.uk.

Especially interesting from a pro-life perspective, don't you think?

By Michael Perry

NYT online, 2/26/10, blog titled Prescriptions:  Making Sense of Health Care Debate

Deaths Rising for Lack of Insurance, Study Finds

By MICHELLE ANDREWS

As members of the Obama administration and Congress met on Thursday to try to find common ground on health care, a new report warned that without comprehensive legislation, more than 275,000 adults nationwide will die over the next decade because of a lack of health insurance. Nearly 14,000 of those deaths would occur in New York State.

An earlier study by the Institute of Medicine estimated that 18,000 people died prematurely in 2000 because they lacked insurance; the Urban Institute updated that figure to 22,000 in 2006. The new study, by liberal advocacy group Families USA, applied the same methodology used in the previous reports to drill down and calculate, on both a national and state-by-state basis, the latest figures.

“This is only the tip of the iceberg, and the most severe consequence, which is death,” said Kathleen Stoll, director of health policy at Families USA. In addition, thousands of other citizens, perhaps millions, are experiencing a reduction in the quality of their lives and their health because they lack insurance, she said.

Not surprisingly, many of the states with the largest number of projected premature deaths also have the largest populations. The top 12 states, in order of estimated premature deaths, are: California (34,600), Texas (31,700), Florida (25,400), New York (13,900), Georgia (11,500), North Carolina (9,600), Illinois (9,400), Ohio (8,900), Louisiana (7,700), Michigan (7,600), Pennsylvania (7,500) and Tennessee (7,500).

In 2008, roughly 46 million people in the United States lacked health insurance, according to the Census Bureau. The new report estimates that currently 68 adults under age 65 die every day because they don’t have coverage. Absent a significant change in coverage, the figure will climb to 84 by 2019, the study projects.

A growing body of research has explored the connection between a lack of health insurance and an increased risk of death. Uninsured people are more likely to skip screenings and other preventive care, so their medical problems are often diagnosed later, when they are more advanced and tougher to treat. The uninsured are also more likely to skimp on necessary medical care, whether it’s prescription drugs to keep their blood pressure in check or surgery to clear up clogged arteries.

“The bottom line is that if you don’t get a disease picked up early and you don’t get necessary treatment, you’re more likely to die,” said Stan Dorn, a senior fellow at the Urban Institute and the author of the organization’s earlier study.

Experts say that the new study’s estimates of premature death likely err on the conservative side. The report calculated that lack of insurance increased mortality rates by 25 percent. But research conducted using more recent data found that not having insurance increases death rates by 40 percent.

In addition, these numbers don’t include children. Children are generally very healthy, and many are eligible for coverage under public programs like the state Children’s Health Insurance Program. But many children aren’t enrolled in Medicaid or other programs for which they’re eligible. According to research cited in the Families USA study, hospital mortality rates were 60 percent higher for children without insurance.

In addition to projecting premature deaths, the new study estimated the number of people who had died since the last major push for health care legislation in the early 1990s. It found that between 1995 and 2009, lack of insurance was responsible for more than 290,000 premature deaths.

Any estimate of this sort depends on the type of health care legislation under discussion. For this report, Families USA relied on Congressional Budget Office estimates regarding the bills that were passed by the House and the Senate, which would increase the number of insured by some 30 million. A health overhaul like the one proposed by Republicans, which would increase the number of insured by about three million, would yield much less bang for the buck.

“Clearly you wouldn’t see the same amelioration of the consequences,” Ms. Stoll said.

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