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.

Monday, March 15, 2010

Tim Jost responds to the USCCB on the Senate bill

Tim Jost (who is a devout Mennonite) and I overlapped at Ohio State during the 1981-82 academic year.  dotCommonweal is emphasizing Tim's response to the USCCB:

Jost answers the USCCB’s prolife office

Posted by Matthew Boudway

Until today, this memo by Timothy Stoltzfus Jost of Washington and Lee law school, was the best analysis of the Senate bill’s abortion language I had seen. Now the best analysis I’ve seen is his response to the USCCB’s critique of that memo. (Strangely, the USCCB’s critique was posted not on their own Web site but on that of the National Right to Life Committee.) Jost’s response is a model of courtesy, scruple, and analytical sobriety. He looks at every feverish speculation advanced by prolife opponents of the Senate bill and heads it off at the pass. He offers the economic and historical context without which it is impossible to understand what’s really at stake. He offers good prolife reasons to support the Senate bill (now the only bill worth talking about). And all the while he manages, quite remarkably, not to lose his temper with those who have made and repeated dubious claims even after they’ve been corrected.

[Read the rest, here.]

An issue that has divided Rick and me: Citizens United

[This, from Leiter Reports:  A Philosophy Blog.]

The U.S. Supreme Court Strikes a Decisive Blow for the Plutocracy

I meant to post something several weeks ago about the Supreme Court's outrageous decision striking down limits on corporate spending on elections, but other events overtook my efforts.  The best explanation of the decision and the issues I have seen comes from my colleague Geoffrey Stone, a leading First Amendment expert.  Senator Feingold (Wisconsin) has a straightforward commentaryThis statement is quite fair about the import of the decision and about its radical character.

It is obviously a disaster for a country that, qua putative democracy, is already a mess.  It's hard to imagine that the U.S. could become more of a naked plutocracy than it already is, but I guess we're about to find out.

Quote of the day, from dotCommonweal

Quote of the day:

Posted by Grant Gallicho

“If that frightened, unemployed 19-year-old knows that she and her child will have access to medical care whenever it’s needed, she’s more likely to carry the baby to term. Isn’t it obvious?” — Cardinal Basil Hume to T. R. Reid, as reported in Reid’s Washington Post column, “Universal Health Care Tends to Cut the Abortion Rate.”

I had not heard of this "Catholic Harvey Milk". Had you?

NYT, 3/14/10

Robert Carter, Priest and Gay Activist, Dies at 82

DENNIS HEVESI

The Rev. Robert Carter, who in the early 1970s was one of the first Roman Catholic priests in the country to declare publicly that he was gay and who helped found the National Gay and Lesbian Task Force, died on Feb. 22 in the Bronx. He was 82.

His death, at a Jesuit health care facility, was confirmed by the Rev. Thomas R. Slon, executive assistant to the provincial of the New York Province of the Society of Jesus.

Father Carter’s coming out was a very public one. In October 1973, Dr. Howard J. Brown, a former New York City health services administrator, announced that he was gay and that he was forming a civil rights organization for homosexual men and women. Then called the National Gay Task Force, it later became the National Gay and Lesbian Task Force.

An article about the group in The New York Times said: “A number of homosexual and lesbian organizations were represented on the board. One member was the Rev. Robert Carter, a Jesuit priest and professor of historical theology.”

Soon afterward he was visited by a subprovincial of the Jesuit order. “It seems that they were afraid I had had a psychotic break or something,” Father Carter wrote in an unpublished memoir.

Although there were calls for his expulsion by irate “Jesuits, parents and alumni of our schools,” Father Carter continued, he was not disciplined. In those days, the church and the Jesuit order were somewhat more accepting of gay people.

The church continues to hold that while homosexual attraction is “disordered,” gay people who are celibate are not inherently sinful. In 2005, however, the Vatican issued a document saying the church would not admit to a seminary or ordain “those who practice homosexuality, present deep-seated homosexual tendencies or support the so-called ‘gay culture.’ ”

Father Carter helped found the New York chapter of DignityUSA, a support group for gay Catholics. In 1972, with the Rev. John McNeill, he hosted the first meeting of the chapter at the Jesuit chapel on West 98th Street in Manhattan.

“I refer to him as the heart of Dignity,” Father McNeill, the author of “The Church and the Homosexual” (Beacon, 1976), said in an interview. “I was doing all the writing, but he was on the front line, meeting with people, counseling people.”

When the Catholic authorities said Dignity could not meet on church property, Father Carter celebrated Mass in apartments all around Manhattan. He led blessing ceremonies for gay couples. He testified in support of the gay rights law proposed by Mayor Edward I. Koch before it was passed by the City Council in 1986. He urged Dignity to march in gay pride parades and marched himself, in his clerical collar.

Although he was a classics scholar, he was also a trained social worker who counseled gay priests and hundreds of lay Catholics. “As I sought to reconcile being gay and Catholic,” Brendan Fay, a longtime gay rights activist, said in an interview, “Bob Carter helped me move from self-hate to self-acceptance and then to a place of gay activism. He was like a Catholic Harvey Milk.”

Robert Earl Carter was born in Chicago on July 27, 1927, the son of Earl and Ila Grace Smith Carter. His father managed several music stores. He is survived by his sister, Nancy Glader of Prospect Heights, Ill.

Father Carter’s parents were Protestants who worshiped in a series of denominations as he grew up. Then, at the University of Chicago, he read James Joyce’s semiautobiographical “Portrait of the Artist as a Young Man.” It introduced him, he wrote, to “the centrality of Catholicism in the history of Western civilization.”

He graduated in June 1946 and the next day was received into the Catholic Church. Three years later, he completed a master’s degree in Greek studies at his alma mater, and in 1953 he received his doctorate there. He entered the Society of Jesus in 1954 and was ordained in 1963.

Father Carter went on to earn a master’s degree in social work from Columbia in 1981. By 1985 he was counseling AIDS patients at Lincoln Hospital in the Bronx; he later became a supervisor of the outpatient AIDS program at the Bellevue Hospital Center in Manhattan.

For him, there was no contradiction between homosexuality and Christianity.

In his memoir, Father Carter wrote: “Since Jesus had table fellowship with social outcasts and sinners, those rejected by the religious establishment of his time, I consider myself to have been most fully a Jesuit, a ‘companion of Jesus,’ when I came out publicly as a gay man, one of the social rejects of my time. It was only by our coming out that society’s negative stereotypes would be overcome and we would gain social acceptance.”


pluralism

We talk a lot here about social pluralism, by which we mean, roughly, that authority is not a monopoly of the civil government.  The social pluralist maintains that authority can also be found in the Church, in families, and certain other groups.  Those of us who think about and write on these topics are familiar with many of the best historical and philosophical accounts of how social pluralism was "discovered," how it is has been theorized, how it has been applied, and how is has been -- and is being -- denied.  I mention this only in order to mention an old book upon which I happened recently, Frederick Watkins, The Political Tradition of the West (Harvard University Press, 1957).  The first sixty some pages of the book (which runs some three hundred and sixty pages) tells the story of the emergence of pluralism, through the emergence of the Church, with remarkable economy and elegance.  It's one of the best accounts I've read, even if one might want to quarrel a tad here and there.  Jenkins doesn't shrink from stating the Church's understanding of its role vis-a-vis "the state" (49):  "With regard to the value and importance of the state there was room for a legitimate difference of opinion among Christians.  Although Augustine might seem to dismiss it as nothing more than a robber band, the general view was that political authority should be respected as a useful and necessary agency designed for the salutary chastisement of men.  All were agreed, however, that the church was the primary instrument of salvation, and that other interests should be subordinated to its all-important mission.  In this way the age-old primacy of politics was suddenly reversed, and the state was reduced to the position of a secondary agency subject to the moral authority of another organization."  Watkins presciently worried that pluralism -- and with it liberalism -- is threatened by "the absolutist concept of the sovereignty of the state" (359), and he wasn't talking primarily about the USSR.

More on 'Proximate' Causation and 'Intervening' Decisions in Health Insurance

Hello again, All

And many warm thanks to Michael and Rob for their additional thoughts on the question raised last week.  I think, however, that we are drifting a bit from the very narrow question I wished to pose.  This might be because it is ultimately not isolable, but it might also be because I have been insufficiently clear in framing the question.  So let me try once more from another angle.

The question is this: Suppose that the state has bracketed some question as being beyond its competence, either for the present or for the indefinite future.  If it has done so, is it possible for the state to avoid violating that bracketing by taking care to disburse funds (a) only in furtherance of purposes that bear no essential relation to the bracketed subject, and (b) in such a way that only an 'intervening' action taken by an individual acting in a private capacity can possibly implicate the bracketed subject? 

It seems to me that the answer here must be yes, and that this must be the case irrespective of what the bracketed subject is.  And it seems to me that this idea is what accounts for the intuition of folk like me who tend to regard the state as innocent of aiding, abetting, or 'endorsing' sectarianism and abortion alike if it disburses funds in furtherance of some clearly legitimate public interest like education or health insurance and does nothing to push recipients toward or away from particular private providers of such items as education or health insurance.  Am I wrong here?

Here's another Gedenkenexperiment that might aid reflection here: My guess is that most if not all MoJers, along with most if not all MoJ friends and other readers, have health insurance.  My guess is, moeover, also that most or all companies from whom they purchase their coverage offer policies that cover abortion.  And I'll conjecture yet further that many, if not indeed most or even all, of the people I have just referenced, are even beneficiaries of insurance policies that themselves cover abortion.  Are these people -- are we -- then, relevantly 'subsidizing,' aiding, abetting, or 'endorsing' abortion? 

If we decide that we are not, is this not because (a) the insurance industry does not offer us alternatives here, (b) we have decided that in such case we can do little but 'settle' for policies we're not thrilled with, which settling we are in turn more prepared to do than we otherwise would be because (c) at least it is not we ourselves who are seeking abortions, while (d) we deem other policy-holders who do seek such abortions to be taking 'intervening' decisions that effectively sever any salient (any 'proximate') causal linkage between our premium payments and their abortions?  If the answer here is yes, then why should the state be viewed any differently than we here?  Why is it any less innocent or more guilty than we?

One final point by way of an aside: Please note that one very easy way to eliminate the unhappy facts (a) and (b) just mentioned would be to institute a 'public option' in health insurance that did not itself include abortion coverage.  It strikes me as quite significant, both from a public policy point of view and from a Catholic social teachings point of view, that the only reason we're having to resort to this conversation about 'proximate' causal linkages between public disbursements and abortion right now is that we're treating the private insurance industry -- which is almost entirely free of federal regulation and offers virtually no non-abortion-including choices to US consumers -- as sacrosanct and untouchable in the current debate.

Thanks again!,

Bob 

Court of Appeals limits the "ministerial exception" in religious-school case

"Law.com" reports:

Religious schools don't have a free pass to ignore a key federal employment law based on a "ministerial exception." At least not in the 6th Circuit.

So ruled the 6th U.S. Circuit Court of Appeals on Tuesday in a case of first impression for that court.

Right. That's what the ministerial-exception is about -- that's what church-state separation and religious liberty are about:  a "free pass" to "ignore a key federal employment law."  A telling way of presenting the issue, no?  Here is the decision.

"Intervening Choices": A further reply to Bob

Thanks Bob and Fr. Araujo for your comments.

Abortion:  Bob is obviously correct that there is deep disagreement in our culture over the moral and moral/legal status of abortion, and we need to do the best we can to pray and work through those disagreements.  Part of the work is attempting to listen to and understand where the other side is coming from.  If it is my belief that a person's  sincerely held beliefs are unreasonable but that the person is reasonable, I have hope that one day that person  will come to see their position as unteneble.  (As an aside, in my own life, when I have come to see the unreasonableness of a position I previously held, it is usually not reason alone that convinced me but a softening of my will, which allows me to reason more clearly).   In short, failure to see the reasonableness of my interlocutor's position in a disagreement is no reason to stop a) arguing or reasoning together and b) loving (which from my experience has a greater impact).  Even if we have "bracketed" the larger question of the abortion license for now because of our deep disagreement (or because the Supreme Court has bracketed it for us), I don't think legislators who see abortion as the taking of innocent human life have to or ought to bracket that decision within the context of the health care debate washing their hands of the issue, comforting themselves by saying that it is someone else imposing the death sentence.  Holy Week brings to life a character who made that fateful  decision when there was far less disagreement among his constiuents (subjects).

Vouchers.  Here, I may have simply misunderstood Bob, he may have misunderstood me, or both.  I thought I was agreeing with him at least in part.  I think that Bob and I would agree that the state is or ought to be blind to sectarian differences because these questions of faith are "beyond its competence or ken."  The purpose of bringing up our nation's soft theism was solely to accentuate the difference between bracketing in the voucher and abortion realms.  Except for a few and perhaps growing number (Jim Dwyer comes to mind), we are generally in agreement that religious faith is a good in a way that we are not in agreement as to whether abortion is a good.  Most of us believe that religion is a good but that the specifics are beyond the competence of the state.  In deciding to grant vouchers, the state is recognizing that good and recognizing its own incompetence in determing the contours of that good.  This seems to be a very different case than one which grants abortion coverage vouchers.

Martin Marty on Glenn Beck

Sightings 3/15/10

Social Justice

-- Martin E. Marty

Are 68.1 million Americans connected with a Communist front movement?  Yes, if they are Roman Catholic.  Are another 20 million citizens listening to “coded” Nazi  messages?  Yes, if they are mainline Protestant.  Are tens of millions more in danger of being part of a similarly coded Fascist front?  Yes, if they are in a growing wing of Evangelicalism; and yes, if they keep hearing social justice messages in thousands of African-American congregations.  Those four “yeses” pick up on oft-repeated accusations by Fox News host Glenn Beck.  They provoked the least underreported public religion news of the week, which appeared in the March 12th New York Times as well as “all over the internet.”

The fact that Mr. Beck charms millions of devotees tells more about the sad state of truth-telling and the high state of lie-receiving than civil citizens should want to hear.  The broadcaster has picked up an ally in folk like Jerry Falwell, Jr. and a few other fundamentalists on the right who have been at least as condemnatory as he.  Their most cited biblical passage is from the gospels, where Jesus announces that his kingdom is not of his world; therefore they conclude that Christians should avoid political life.  A test of ironies:  Quick, now, can you think of any element in American religion which has been more publicly engaged in recent politicking than these “not-of-this-world” dwellers in glass houses?

Where should they direct the stones they must throw?  And how should they follow through?  Mr. Beck knows:  Leave any church which talks about, supports, or “does” works of justice beyond what an individual or a church charity can do.  “Leave!”  “Run!”  Do it fast, he says, because of the way things are going.  He might as well be wearing a beard, a robe, and a sign:  “THE END IS NEAR.”  Before that end, these “social justice” churches might at least fling some pebbles back while they seek consistency.  Ask:  Would all the Christians and the churches which accept any benefits of Social Security, Medicare, Medicaid, tax exemption and other such programs cut them off tomorrow?  They all involve the government and all were backed by “social and economics minded” leaders and followers in churches, often against the odds raised and symbolized by the Glenn Becks of their past.

Sightings likes to be fair and to see more than one side of things as it does its observing and commenting.  So let it be noted that some sane and serious Christians also think that believers should pay no attention to public order, structures, circumstances, and possibilities.  “Don’t talk justice!  Just be just!”  “Don’t support programs which support widows and orphans, just share your bread and coat and cold water with your innocently needy neighbor.”  Thereafter do the math:  It will become obvious that the limits on the individual responses to need at their highest won’t meet needs if reckoned at their lowest.

Biblical verses wisely do remind readers, “Put not your trust in princes.”  That usually means governments; “princes” in the media, banking, punditry, universities, and, yes, churches demand scrutiny, and their programs deserve careful evaluation, as well.  But those who say that you have taken care of biblical injunctions if you simply keep government out of everything face biblical reminders with which they have to contend:  The Hebrew prophets all dealt with “nations,” and the apostle Paul, writing to people suffering under Nero, also said that civil “authority…is God’s servant for your good (Romans 13:4).  Paul even goes so far in 13:6 to urge believers to “pay taxes, for the authorities are God’s servants.”  Come on, Paul, don’t press your luck in Beck’s world!

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Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.



Questions about the Psychology of Jesus

The traditional teaching (at least since the fourth century) is that Jesus was God. Most Christians accept this without thinking seriously about the internal life of Jesus. Here is one example. Jesus is depicted many times as praying to God. At his death, he says “My God, My God, why have you forsaken me.” What is the psychology of Jesus? Did he know he was God? When? What is the relationship between Jesus and the Father? If Jesus is co-equal, why is Jesus praying as a traditional Jew might to the Father? There is a truly great book by Michael Casey, Fully Human, Fully Divine: An Interactive Christology. I think it's time to go back and read it.

cross-posted at religiousleftlaw.com (comments open here and there)