Here is my colleague Gerry Bradley's follow-up to the piece (which came out before the opinion in the California case did) to which Eduardo linked recently.
Thursday, August 5, 2010
A follow-up to Eduardo's post
Gerard Bradley on Judge Walker
ND Law Prof. Gerard Bradley has a puzzling opinion piece up on Fox News in which he insinuates that Judge Walker might have been biased in the Prop. 8 case because he is in a long-term committed gay relationship (whether it is true that Judge Walker is gay or is in a long-term relationship I have no idea, though I'll stipulate for the purposes of this brief post that it is) and might himself want to marry. I say "insinuate" because Bradley never comes out and says that Judge Walker decided the case the way he did because of his relationship, though it seems to be the clear upshot of his piece.
My puzzlement is twofold. First, I don't quite understand what Bradley is saying, because he expressly says that he is not arguing that Judge Walker should have recused himself:
I am not saying that Judge Walker should have refused [sic] himself in Perry v. Schwarzenegger. I am not saying so because nowhere (as far as I know) has Judge Walker volunteered or been made to answer questions about how the outcome of that case would affect his interest (whatever it is) in marrying, and thus his interest in the manifold tangible and intangible benefits of doing so.
That is a conversation worth having.
And, sadly, it is quite too late to have it.
So his point is not that Judge Walker should have recused himself, but that it would have been worth having a conversation about his possible bias because Judge Walker is in a committed gay relationship. On the other hand, Bradley asserts that "I do not doubt that Judge Walker made up his mind about Prop 8 before the trial began." So he does seem to have a great deal of confidence that Judge Walker was in fact biased and, if so, he should have recused himself.
My second source of puzzlement is why Bradley thinks this is a conversation we need to have had in the absence of any actual evidence of improper bias -- apart from Bradley's certainty and the authority of conservative commentator Ed Whelan, whom Bradley also cites. Here's my question: by Bradley's logic, would a white judge with children be subject to recusal from hearing a challenge to an affirmative action program (or at least a "discussion" about his biases) because he might not want his children to be disadvantaged by such programs or is this the sort of insinuation of bias that is only valid against minorities?
The Dearth of Mothers on the Supreme Court
A recent NYT article by David Leonhardt ("A Labor Market Punishing to Mothers") points out:
The last three men nominated to the Supreme Court have all been married and, among them, have seven children. The last three women — Elena Kagan, Sonia Sotomayor, and Harriet Miers (who withdrew) — have all been single and without children.
This little pattern makes the court a good symbol of the American job market.
The article continues with one of my favorite arguments, that that the 'glass ceilings' that persist in the American job market have more to do with the demands of parenthood (borne predominately by women) than gender discrimination. And, as Leonhardt points out:
The fact that the job market has evolved in this way is no accident. It’s a result of policy choices. As Jane Waldfogel, a Columbia University professor who studies families and work, says, “American feminists made a conscious choice to emphasize equal rights and equal opportunities, but not to talk about policies that would address family responsibilities.”
In many ways, the choice was shrewd. The feminist movement has been fabulously successful fighting for antidiscrimination laws that require men and women to be treated equally. These laws have not eliminated the blatant sexism of past decades — think “Mad Men” — but they have beaten back much of it.
As a result, outright sexism is no longer the main barrier to gender equality. The main barrier is the harsh price most workers pay for pursuing anything other than the old-fashioned career path.
Julie Suk has recently published an excellent article in Columbia Law Review, "Are Gender Stereotypes Bad for Women? Rethinking Antidiscrimination Law and Work-Family Conflict", in which she analyzes the consequences of this strategic choice by the feminist movement in the U.S, contrasting it with the different legal frameworks that allow European countries like France and Sweden offer such generous maternity and paternity support. In Europe, the issue of maternity leave was considered entirely separately from the issue of general sick leave or disability leave. The resulting legal schemes treat childbirth as something unique, not necessarily a disability or a sickness, and an endeavor in which the women who were primarily affected by it deserve the support of the entire social network – not just the individual employer. In contrast, in the United States, the issue of maternity leave has always been inseparably intertwined with employment law, and has always shaped primarily by the concern of feminists that distinguishing between childbirth and any other medical condition, by requiring employers to offer more generous maternity benefits, would perpetuate negative stereotypes about women’s ability to work, exacerbating discrimination against women.
Suk argues that we ought to follow the European lead, recognize childbirth as something unique to women, and distinguish family leave from medial leave. As Leonhardt points out in his NYT article, though, these sorts of polices aren't enough -- even in those European countries with generous family leave policies, women fall behind men in rising to the top of the career tracks. That's because the costs of taking advantage of these generous policies persist -- the legal right to take off time from your career to parent doesn't immunize anyone from the judgment that doing so makes you a less serious candidate for advancement to the upper levels of your chosen profession.
On that front, I agree with Leonhardt's conclusion: "The best hope for making progress against today’s gender inequality probably involves some combination of legal and cultural changes, which happens to be the same combination that beat back the old sexism. We’ll have to get beyond the Mommy Wars and instead create rewarding career paths even for parents — fathers, too — who take months or years off. We’ll have to get more creative about part-time and flexible work, too." In a soon-to-be published book chapter ("Dueling Vocations"), I argue that these sorts work-life balance issues shouldn't be seen as only 'women's issues' -- they're manifestations of the tensions inherent in the precarious balance between the private vocation and the public vocation to which each of us, whether male or female, a parent or childless, is called.
In all of these arguments about the importance of workplace restructuring to accommodate family care obligations, it's important to remember that those of us with who have the luxury of making these arguments are typically not the ones who most need the arguments to be made. Yes, Ruth Bader Ginsberg and Sandra Day O'Connor did beat the odds and make it to the top of the legal profession with children. Yes, many professional women do have the option accepting the career costs of parenting, by of 'opting out' of the workplace or simply accepting the lower salaries that the "Mommy track" offers. But, as Leonhardt writes, "On the other side of the spectrum, low-income women generally do not have a choice between career and family. Many are single parents. Their chances of escaping poverty are hurt by the long-term costs of taking time off after childbirth and having little flexibility in their schedules."
Wednesday, August 4, 2010
The Prop. 8 decision
To the surprise of (I suspect) no one, a federal trial-court judge has struck down California's law affirming that legal marriage is limited to relationships between one man and one woman. Here is the (very long) opinion. Nutshell version: the law serves no legitimate rational (let alone "compelling") state interest -- only "private moral view[s]" -- and so the burdens it imposes on the court's understanding of the constitutionally protected right-to-marry are unjustified.
As was (I think) expected, much of the opinion's work is done through the court's findings-of-fact. One of these (No. 77) might be of interest: "Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians."
Give the opinion a read, and let us know what you think . . .
UPDATE: Andy Koppelman agrees with me that the trial judge's "findings of fact", rather than his legal analysis, are what really matter in this case. (Andy probably does not share my sense that many of the 'facts" which the judge regarded as beyond dispute or clearly established are actually contestible normative propositions, but that's another matter.)
ANOTHER UPDATE: Dave Hoffman suggests that the trial judge's findings of "fact" are really better regarded as assertions of "constitutional fact", and so probably will not (and should not) enjoy the deference generally given by appellate courts to lower courts' fact-finding.
Tuesday, August 3, 2010
Catholic Liberals, the Bishops, and the Eucharist
I thank Father Araujo for finding a link to the
document I cited. The list of items he refers to is followed by a section on
selective adherence to Church authority. There the Bishops say: “To give
selective assent to the teachings of the Church not only deprives us of her
life- giving message, but also seriously endangers our communion with her.
"If a Catholic in his or her personal or
professional life were knowingly and obstinately to reject the defined
doctrines of the Church, or knowingly and obstinately to repudiate her definitive
teaching on moral issues, however, he or she would seriously diminish his or
her communion with the Church. Reception of Holy Communion in such a situation
would not accord with the nature of the Eucharistic celebration, so that he or
she should refrain. “
cross-posted with elaboration at religiousleftlaw.com
Steve is correct...
Steve is correct: the link to the United States Conference of Catholic Bishops November 2006 Happy Are Those Who Are Called to His Supper is not working. But not to be deterred from reading this important text, I did some trolling on the USCCB website—that must make me a fisher of documents—and found the PDF version of the text which is uploaded here [Download Happy Are Those Who Are Called to His Supper].
But, I apparently take a different tack on how the bishops’ text on the Eucharist is to be understood. First of all, it is essential to understand the Eucharist is union with Christ. The bishops of a particular episcopal conference, i.e., the United States, in the proper exercise of their teaching authority as confirmed on several occasions at the Second Vatican Council (e.g., Lumen Gentium; Christus Dominus), note that there are occasions when members of the Church “should refrain from partaking of the Body and Blood of Christ” because this union with Christ is gravely compromised. Nevertheless, they acknowledge the need for being cautious when a judgment is made about whether or not another person should receive Holy Communion or not. Of course, when one is in mortal sin, his or her relation with God and the Church is compromised because of the failure to be in the necessary state of grace.
In the proper exercise of their teaching authority, the bishops present a non-exclusive list of some thoughts, acts, and omissions that constitute such compromises. Included are:
· Believing in or honoring as divine anyone or anything other than the God of the Holy Scriptures
· Swearing a false oath while invoking God as a witness
· Failing to worship God by missing Mass on Sundays and holy days of obligation without a serious reason, such as sickness or the absence of a priest
· Acting in serious disobedience against proper authority; dishonoring one’s parents by neglecting them in their need and infirmity
· Committing murder, including abortion and euthanasia; harboring deliberate hatred of others; sexual abuse of another, especially of a minor or vulnerable adult; physical or verbal abuse of others that causes grave physical or psychological harm
· Engaging in sexual activity outside the bonds of a valid marriage
· Stealing in a gravely injurious way, such as robbery, burglary, serious fraud, or other immoral business practices
· Speaking maliciously or slandering people in a way that seriously undermines their good name
· Producing, marketing, or indulging in pornography
· Engaging in envy that leads one to wish grave harm to someone else
Lots of compromises here as you can see, including some of those to which Steve refers. But being pastors, the bishops offer help to those not in a state of grace by reminding all that the Sacrament of Penance is available to remove the infirmity that impedes union with Christ. This sacrament is available not only to those who “knowingly and obstinately...reject the defined doctrines of the Church” but to all who compromise their status and are not in the necessary state of grace. I disagree with Steve’s argument that what is really being refused are the “teachings of the Bishops.” Rather, something else is being refused: it is a knowing and obstinate rejection of the defined doctrines of the Church including Her “definitive teaching on moral issues,” some of which have been quoted above. This is a crucial distinction. So, it is not failure to “accept the teachings of the U.S. Conference of Catholic Bishops” as Steve argues that constitutes the compromise; rather, it is the knowing and obstinate refusal of the Church’s teachings that the bishops, by their office and the authority conferred therein, are obliged to teach.
I am not sure I follow Steve’s point about the Nicene Creed. But, if he is suggesting that this is all that the bishops are obligated to teach, something is missing, i.e., Revelation and almost two thousand years of the Church’s teaching. In this latter context, the Apostle Paul had more than one occasion to address moral issues that many of our contemporary society dismiss as being solely confined to the tastes of the autonomous individual.
Finally, I am not sure if there exists today the “typical liberal Catholic” to which Steve refers or, for that matter, the “typical conservative Catholic” whom he does not mention. But if such persons do exist, I wonder which kind was Mr. Leander Perez; or Mrs. Bernard Gaillot; or Mr. Jackson Rickau...
RJA sj
Are Catholic Liberals Welcomed By Catholic Bishops?
Rick Garnett maintains that Catholic liberals are not really put upon, but are welcome among U.S. Catholic Bishops. I do not think this is so. In its statement "Happy Are Those Who are Called to His Supper" (unfortunately the link to it is not working), the Bishops told the faithful that they are not to receive communion if they engage in an obstinate refusal (I believe that this includes well considered, but persistent refusal) to follow teachings of the Bishops. As I interpret this, liberal Catholics who as a matter of conscience cannot accept teachings of the U.S. Conference of Catholic Bishops in particular are obligated to follow their conscience (though the Bishops do not even concede this), but in doing so, they have separated themselves from the Church. On the same day, the Bishops in a separate document reaffirmed the Church's teaching on birth control (see here) and in a separate document its teaching on homosexuality (the link is not working). I find it unlikely that the Bishops were unaware of the juxtaposition of these documents. I concede that the Bishops did not specify particular teachings (creating a loophole for the literal minded), but I think it clear in context that they had more in mind than the Nicene Creed. I also think that they had more in mind than the abortion issue. And one should not forget that the typical liberal Catholic disagrees with the Church on a wide variety of issues involving various facets of sexuality, divorce, and the role of women (and, of course, the same Catholic typically agrees with Church's general theology and most of its ethical teachings). I think the failure of the Bishops to specify the particular beliefs was probably caused by the lack of a consensus. But the notion that the liberal Catholic is welcome in the halls of the US Conference of Catholic Bishops is difficult for me to credit.
Hiroshima and Nagasaki
Chris Tollefsen has postedthis essay on the "abiding significance of Hiroshima and Nagasaki", 65 years after those cities were bombed with nuclear weapons. As I noted in my recent post, below, responding to Anne Rice, it is often the case that the Church will make even the most faithful and decent people feel a bit uncomfortable about the fact that they are too comfortable with things that should make them uncomfortable. I take it that the bombings of these Japanese cities was not morally justified, even taking into the consideration the fact (let's assume, for now, it is a fact) that, on balance, they ended the war sooner than it otherwise would have ended and at the cost of fewer human (American and Japanese) lives. As Tollefsen writes:
Some few Catholic scholars, notably Elizabeth Anscombe and Fr. John Ford, S.J. argued at the time that the Allied approach was immoral. Their argument, which drew from a moral tradition dating back to St. Augustine, was based on the premise that intentionally killing the “innocent” was always a grave wrong. Both Anscombe and Ford noted that, despite occasional confusion, the meaning of “innocent” could not be “morally innocent,” but rather must mean “not posing a threat.” For it is a threat that justifies the use of defensive force in war, not the moral character of individual civilians who might be morally at fault in their support of, say, the Nazi government, yet be engaged only the in same tasks they would have been working on in peacetime: growing and distributing food, caring for their families, working in the medical profession, and so on. Given this approach to the distinction, Ford estimated that as much as two thirds of the city of Boston would, during World War Two, have been “innocents,” when women, children, and the aged were factored in.
The Allied bombings in Europe, then, and the firebombing and atomic bombing in Japan, seem to have been deliberate targeting of civilian populations: in other words, intentional attacks on innocent human life. And, if Anscombe’s and Ford’s premise about intentional killing of the innocent is correct, then the conclusion is inescapable: these Allied actions constituted murder on a vast scale, running to hundreds of thousands of lives. . . .
In my own experience, this is -- for some people whose faith is deeper, and decency greater, than mine -- a hard claim. It is hard to say -- or, if not to say, to really believe -- that the better, and more-right (or, at least, less-wrong) thing to do is not to end the war sooner. Should it be so hard? Harry Truman and Winston Churchill are admired by almost everyone. (I have a Churchill poster in my office.) Should they be? Tollefsen concludes:
Hiroshima and Nagasaki, the bombings that preceded them, the decisions that led to them, and the rationalizations that justified them, remain with us today, underwriting both some of our most grievous moral errors, and our more ambiguous moral triumphs. As individuals, and especially as a nation, it still remains for us to grasp the deep significance of those fateful, and horrible, days.
Anne Rice and the "plight of the liberal Catholic"
Yikes! I go away to climb in Wyoming, and come back to MOJ to find it in the grip of vampires! (I kid, I kid.) Seriously, though: Unlike Steve, I find not much to particularly admire, and quite a bit that seems ignorant and bizarre, in the much-remarked Anne Rice Facebook post. Her "I refuse" litany is misdirected, and says more about her misunderstandings of Christianity ("I refuse to be anti-life"?) than it does about Christianity. Steve suggests that the "impetus for Rice's decision" is understandable to most "Christian liberal[s]", but I'm going to persist in thinking better of my friends and colleagues who are Christians-who-are-political-liberals, and in thinking that they (unlike Rice) are able to distinguish between fundamentalist distortions of Christianity and New York Times-type attacks on and caricatures of Christianity, on the one hand, and orthodox Christianity, on the other.
Steve also linked to a post by David Sylvester, in which he explains "why he stays in the Church." (See John 6: "Lord, to whom shall we go?"). I will put aside, for now, my regret over the use of "liberal Catholic" and "conservative Catholic" in Steve's and Mr. Sylvester's posts, because I am increasingly of the view that these labels are not very helpful in understanding reality, and are too often used as epithets.
Obviously, if someone like Mr. Sylvester feels caught in a "plight" of some kind, then it is not likely to be helpful to tell him that, in fact, that plight is more imagined than real. Instead, all I can say is that my own impressions and experiences make it hard for me to see how it is that a Catholic in America today -- living in a typical parish, in a typical diocese -- could really think that Catholics-who-are-liberals are really so put upon. On almost every issue, those supposedly reactionary "Church leaders" (here and abroad) lend their support to the "liberal" side of political debates. (In many cases, they are -- in my view -- correct to do so.) In most chanceries, and in the halls of the USCCB, the politically "liberal" view is (at the very least) welcome. It is not clear what is all that "conservative" about the life, business, activity, and liturgy of most Catholic parishes. I suspect that few Catholics (contrary to what some seem to think) actually hear many homilies espousing "conservative" positions on live political questions. Certainly, one does not want to be perceived as "conservative" at any but a few of our Catholic universities and colleges. Maybe there are a few thousand hard-core types who, as Steve says, want a smaller, purer Church without fellow-Catholics-who-vote-liberal, but I feel sure that their number is not larger than the number of "liberals" who wish all of the "conservatives", with their abortion-obsession and stubborn refusals to embrace Dan Schutte and Bernadette Farrell, would either leave or get with the program.
True, there are some bishops and clergy who, now and again, insist on making Catholics-who-are-political-liberals feel a bit uncomfortable about the abortion-related agenda and activities of today's political left (and many more who, quite appropriately, insist on making Catholics generally feel uncomfortable about American consumerism, nationalism, and non-abortion-related individualism.) So, it seems to me that the "plight" of the liberal Catholic is that they are, as Catholics, sometimes made to feel uncomfortable as American political liberals, just as Americans generally are sometimes made, as Catholics, to feel uncomfortable about their sins, faults, and failures. And, American Catholics-who-are-political-liberals should feel uncomfortable (Anne Rice notwithstanding) with the American left's abortion-related positions (just as American Catholics-who-are-political-conservatives should -- and, in my experience, do -- feel uncomfortable with the often-excessively-individualistic economic views of American conservatives).
I'm glad Mr. Sylvester is "staying in the Church" -- it is, after all, the body of Christ, established by Him -- but I'm not sure he's blaming the right people for his "plight."
Monday, August 2, 2010
Ann Rice and Christianity
On Facebook,
Ann Rice has announced that she continues to follow Christ, but is no longer a
Christian. On July 28, she said, “For those who care, and I understand if you
don't: Today I quit being a Christian. I'm out. I remain committed to Christ as
always but not to being ‘Christian’ or to being part of Christianity. It's
simply impossible for me to ‘belong’ to this quarrelsome, hostile,
disputatious, and deservedly infamous group. For ten ...years, I've tried. I've
failed. I'm an outsider. My conscience will allow nothing else.
Five minutes later, she elaborated, “Christ, I quit
Christianity and being Christian. Amen."
The next day
she said this: “My faith in Christ is central to my life. My
conversion from a pessimistic atheist lost in a world I didn't understand, to
an optimistic believer in a universe created and sustained by a loving God is
crucial to me. But following Christ does not mean following His followers.
Christ is infinitely more important than Christianity and always
will be, no matter what Christianity is, has been, or might become.”
The response
has been enormous. Thousands responded in one way or another on Facebook. The
United Church of Christ invited her to become a member, because it believed its understanding of
Christianity matches hers. But Rice has arrived at the conclusion that
organized religion is not for her.
Joseph
Bottums at First
Things heaped sarcasm on her decision. In a post that exuded superiority,
Bottoms criticized her for exhibiting a sense of superiority. I cannot help but
thinking that Bottom’s post exhibits a form of argumentation that is itself not
Christian.
It would be
the rare Christian liberal who did not understand the impetus for Rice’s
position. Although conservative Christians are a minority of Christians
– at least in the United
States, the media has constructed an image of Christians that is
decidedly in
the conservative mold. Conservative Christians and the mass media have
given
Christianity a bad name – at least from the perspective of progressives.
For
them, it is necessary to say, “I am a Christian – but” Or, as I am often
forced
to say, “I am a Catholic – but.” In the case of Catholicism, the
ordinary
citizen and the traditional Catholic thinks that what the Vatican says
defines
Catholicism – even though the vast majority of American Catholics as a
matter of conscience reject many
solemn Vatican pronouncements and the ordinary citizen is generally
unaware of the Church's many Christian commitment's to social justice or
the Church's non-resistance to science.
In the end,
although I admire Rice, in the end, I do not agree. I do not think the term
Christianity should be ceded to anti-feminists and anti-gays. Enormous progress
has been made in this area within Christian sects in the past few decades
(although, if I may resort to euphemism, Rice’s former Catholic home has
registered less progress on both fronts). The tide of history runs against
conservatives on these issues.
Even more
important, a major strand of Christianity from the progressive perspective is
to fight for social justice and in most cases that is best done with others.
Moreover, Christianity is all about loving, supporting, and helping others.
That is less easy to accomplish in an isolated mode.
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