Wednesday, May 18, 2011
As same-sex marriage is under consideration in New York state, our group of religious-liberty scholars has written a memorandum letter advocating religious liberty protections. As before, we have differing views on the underlying question of SSM recognition, and the letter takes a position only on the need for religious liberty protections. Our proposal has developed a bit over time, and this latest letter joins previous state letters archived here (MOJ from August 2, 2009).
Tom
I apologize for my light blogging as of late, but I'm spending the month at Oxford trying to finish a manuscript and, well, the distractions of this fine city (namely big old libraries and small old pubs) are so enticing as to crowd out most everything else. I do want to call attention to a fascinating new project by Charles Camosy, "Peter Singer and Christian Ethics." I had the opportunity to participate in a colloquium on Camosy's manuscript this morning, and there will be a two-day conference on the project here beginning tomorrow. Camosy tries to push through the caricature of Singer and show that his work should be taken seriously by Christians, while pushing through the caricature of Christian ethics to show that the tradition should be taken seriously by Singer and his utilitarian sympathizers. Kicking off the book with abortion, Camosy shows that the disagreement between Singer and Christian ethics is narrower than assumed. He writes:
Both agree that, assuming that a fetus is a person, the supposed unintended negative effects of making abortion illegal would not justify its continuing to be legal. Both agree that a constitutional (rather than a legislative) approach to abortion is a mistake. Both agree that one has a moral duty to support a fetus for nine months -- again, if the fetus is a person. Both have non-speciesist definitions of personhood. And both see a logical connection between one's view of abortion and one's view of infanticide. Their very narrow disagreement is with regard to what role, if any, potential should play in the moral status of the fetus. Both approaches agree that passive potential (or mere probability) adds nothing to the moral status of an entity, but the Church's position is that any being of a rational nature -- that is, a being with active potential for personhood -- counts as a person. Indeed, it is difficult to make sense of the claim that severely mentally disabled human beings (especially if they have been so from birth) are persons, to say nothing of the mildly comatose or even the asleep, without an appeal to the active natural potential of such individuals. If the argument of this chapter is correct, then SInger's claim that a woman's interests always outweigh the interests of a fetus is false.
I'm not sure if this disagreement on the moral significance of "potential" is best termed "narrow," rather than "singular." I could just as easily characterize the difference as a "gaping chasm." In any event, the chapter is a helpful distillation of the real and imagined tensions between Singer and Christian ethics.
On the moral status of non-human animals, Camosy criticizes the Christian community for hypocrisy in supporting factory farms and (in many circumstances) the eating of meat, and notes that the Christian tradition has richer resources for addressing these issues than Singer's utilitarianism offers. He writes:
[Singer] finds it difficult to condemn the wanton slaughter of certain animals . . . in a way which doesn't violate their interests -- perhaps by painlessly killing a non-self-aware creature with no capacity to have an interest in continuing to live, for example. But the Christian tradition -- which can appeal to the intrinsic goodness of non-human animals apart from human beings, the telos of all members of the created order, the spiritual reality of non-human animals, and the morally problematic nature of the (often vicious and violent) act of snuffing out a non-human animal's life -- has resources to condemn practices that Singer does not.
This chapter alone will be worth the price of the book, as it both rattles the my own Christian conscience while showing significant shortcomings in Singer's capacity to pursue the cause with which he is most closely identified. Camosy also addresses euthanasia, duties to the poor, and ethical theory. On this last topic, Camosy notes that Singer seems to operate with some conception of objective truth because he ranks some preferences as more worthy of satisfaction that others. I'm no expert on Singer, but I'm not sure whether this leads Singer to objective truth, or whether he is simply ranking preferences that maximize the individual's ability to choose over other options. It's a fascinating question to finish the book with, and it suggests the possibility of further development in Singer's work that may bring him even closer to Christian ethics on some important issues.
Look for the book sometime next year -- it is well worth reading and should spark many productive conversations.
Monday, May 16, 2011
I haven't had a chance to read all the way through this paper by Professor Neomi Rao, but the introduction looks really good.
I have sometimes thought that somebody should write an article about the Man of Law in The Canterbury Tales, and in particular what his character, and his tale, suggests about certain...perennial issues in legal ethics. Rob? Here is the description of the lawyer in the Prologue (in modern English):
A sergeant of the law, wary and wise,
Who’d often gone to Paul’s walk to advise,
There was also, compact of excellence.
Discreet he was, and of great reverence;
At least he seemed so, his words were so wise.
Often he sat as justice in assize,
By patent or commission from the crown;
Because of learning and his high renown,
He took large fees and many robes could own.
So great a purchaser was never known.
All was fee simple to him, in effect,
Wherefore his claims could never be suspect.
Nowhere a man so busy of his class,
And yet he seemed much busier than he was.
All cases and all judgments could he cite
That from King William’s time were apposite.
And he could draw a contract so explicit
Not any man could fault therefrom elicit;
And every statute he’d verbatim quote.
He rode but badly in a medley coat,
Belted in a silken sash, with little bars,
But of his dress no more particulars.
I have learned from the great people at the Becket Fund for Religious Liberty that the organization's founder -- who has been a friend and mentor to me for many years -- Kevin "Seamus" Hasson is stepping down from the post. Hasson's work and contributions have been invaluable, and his character and good spirit have been inspiring. Here's a bit from the press release:
Since founding the Becket Fund in 1994, Hasson has steadily grown the organization into the preeminent religious liberty law firm, the only one of its kind in the world that defends people of all faith. The Becket Fund has litigated in nearly every state in the country and has defended religious freedom in other venues, from Mexico City to Jakarta, from the halls of the European Court of Human Rights to the streets of Orissa, India. Hasson has also earned broad credibility in the national media, having been quoted in outlets ranging from The New York Times to The Wall Street Journal and appearing on news programs ranging from Dateline NBC to Al-Jazeera.
Hasson is the author of The Right to be Wrong: Ending the Culture War over Religion in America. He has lectured and debated frequently, in venues ranging from BYU and Notre Dame to Harvard, from Oxford to the Vatican. His contributions to academic discourse on religious freedom, as well as his implementation of the principles set forth in Vatican II’s Declaration on Religious Freedom, Dignitatis Humanae, will be acknowledged later this week with an honorary doctorate in humane letters bestowed by the Catholic University of America.
Robert George, McCormick Professor of Jurisprudence at Princeton University and a member of the board of the Becket Fund, praised Hasson’s “inspiring witness and leadership in defense of religious freedom.” George said of Hasson that “no one fights more valiantly, more resourcefully, or more effectively for the rights of persons of every faith to honor their religious obligations as their consciences require.”
Hasson’s successor as CEO, William P. Mumma, has had a distinguished career in leadership. With degrees from Georgetown University’s School of Foreign Service and Columbia University, Mumma ran the global derivative business for Bankers Trust Company. Following this he was an Executive Managing Director at Nomura Securities International and since 2008 is the President and CEO of Mitsubishi UFJ Securities USA. He is also Chairman of the Board of Trustees for Georgetown University’s Tocqueville Forum on the Roots of American Democracy.
Of his new position, Mumma said, “Thanks to Seamus, the Becket Fund has seen sixteen remarkable years defending religious freedom globally. The firm has won several landmark victories for the cause, among them protecting the Pledge of Allegiance. At the same time, threats to religious freedom have never been greater. I am humbled by the challenges that lie before us but confident that our team of first rate lawyers will continue its remarkable 85% success rate in litigation.”
Based in Washington, D.C., The Becket Fund for Religious Liberty is a non-profit, public-interest law firm dedicated to protecting the free expression of all religious traditions. The Becket Fund has a 15-year history of defending religious liberty for people of all faiths. Its clients have included Buddhists, Christians, Hindus, Jews, Muslims, Sikhs, Zoroastrians, and others. Its attorneys are recognized as experts in the field of church-state law.
Here is an SSRN essay of mine, reviewing Hasson's "The Right to Be Wrong."
Well done, and thank you, Seamus!
Sunday, May 15, 2011
I have posted a considerably revised version of my recent paper, "The Individual Mandate, Sovereignty, and Ends of Good Government: A Reply to Professor Randy Barnett," which is forthcoming in the University of Pennslyvania Law Review. The paper does not attempt to determine whether the individual mandate is a prudent piece of legislation under the current circumstances. Instead, it tries, among other things, to show why the libertarian arguments against the mandate are inconsistent with a Catholic account of the principles of law and government. These include -- without running afoul of the principle of subsidiarity (properly understood) -- leading the people to particular goods, which can, in turn, be referred to a common good. Law is always ordered to a common good: "Operations are indeed in particulars. But those particulars can be referred to a common good, [which is common] not with the community of a species or genus, but with the community of a final cause, according to which a common good is called a common end." ST I-II 90.2 ad 2
Saturday, May 14, 2011
The text is here. He ended with this:
“I began here by reflecting on my blessings, on all the things for which I’m thankful. But you may have noticed something about my list. The good things in life aren’t things. They are people. They are values. They are our birthrights.
“For when it’s all said and done, we are but mere mortals doing God’s work here on Earth. Put a better way – no, put the best way: remember you are dust, and to dust you shall return.
Comments are open. Be good.
Tomorrow, May 15, 2011, is the 120th anniversary of Pope Leo XIII’s encyclical letter Rerum Novarum. While it was not the first ecclesial text addressing matters of concern to Catholic social thought, it is a major catalyst for CST in the present age. Of course, it should go without saying that Catholic social thought is an indispensable pillar of our project here at the Mirror of Justice which addresses Catholic legal theory. I am sure that Pope Leo’s encyclical will remain a major and key foundation stone of Catholic social thought well into the future. Moreover, it has been the stimulus for major encyclicals or apostolic letters by Pius XI, Paul VI, and John Paul II. It also provided a means for the Church, through the Petrine Ministry, to consider and better understand her teachings as new issues emerged in societies around the world.
In May of 1991, Blessed John Paul II commemorated the 100th anniversary in his Centesimus Annus. It was then thought by many, and reasonably so, that with the crumbling of totalitarian systems—especially the Soviet Union—the important contributions of Catholic social thought to the betterment of the human family could proceed without real impediment.
I wonder, though, if that is still the case today on the 120th anniversary. My reason for saying this is due to something which Blessed John Paul stated in Centesimus Annus: “As history demonstrates, a democracy without values easily turns into open or thinly disguised totalitarianism.” [N.46] A few years later, in his encyclical Evangelium Vitae, he reiterated this point by stating: “the value of democracy stands or falls with the values which it embodies and promotes.” [N. 70] Blessed John Paul elaborated on this by offering for consideration the context of a democratic majority which “decrees that it is legal, at least under certain conditions, to kill unborn human life, [but] is it not really making a ‘tyrannical’ decision” which is “legitimated by popular consensus?” Popular consensus today is growing on other fronts involving other issues that also challenge the Church’s vital social teachings. Might this mean that other tyrannical decisions legitimated by popular consensus are just around the corner?
Given the anniversary we commemorate tomorrow, it would be important to reflect on this. Why? The Church in the present day still encounters difficulty in proclaiming the Good News and proposing the merits of her social doctrine. The well-formed consciences of those who state publicly and teach the truth about the essence and nature of the human person are under scrutiny. Ironically the obstacle to the protection of the well-formed conscience is no longer totalitarian dictatorship. It is or is becoming the mechanisms of democratic government for which the values that uphold the truth about the human person mean little or nothing.
The anniversary, at a minimum, gives us yet another opportunity to consider and discuss—while that is still possible—the values that our polity embodies and promotes. A happy and blessed anniversary to my friends here at the Mirror of Justice and to our faithful readers!
RJA sj
Yesterday was the 30th anniversary of the attempted assassination of Blessed Pope John Paul II. I don't remember all that much from when I was 12, but I definitely remember that day. Thank God ("literally") for preserving him, and for the life, work, and witness of the late Pope. Might be worth re-reading today, in thanksgiving, . . . take your pick . . . I say Redemptoris missio.
Friday, May 13, 2011
This paper, by Laura Underkuffler, is worth reading (even if, in my view, misguided in some respects). Here is the abstract:
Recently, claims have been asserted that religious exemptions should be afforded to individuals who object to providing public and commercial services to gay and lesbian individuals, as otherwise mandated by law (e.g., municipal clerks who must grant same-sex marriage licenses, or commercial vendors who are asked to serve at same-sex weddings). This article argues that just as religious exemptions of this sort are not granted for discrimination on the basis of race, religion, national origin, or gender, they should not be granted for discrimination on the basis of sexual orientation or transgender status. Discrimination on the basis of an individual's identity, biology, or other immutable characteristics has been labeled odious by our laws, whether motivated by religious beliefs or not. There is no reason why odious discrimination on the basis of sexual orientation or transgender status should be singled out for exemptions that no other civil rights permit.
It should be emphasized that Prof. Underkuffler is careful to distinguish the "odious", though religiously motivated, discrimination that she thinks should not be exempted from otherwise-applicable civil rights laws from actions of religious communities and institutions that are protected by the church-autonomy rule, the no-religious-decisions rule, etc. It is not entirely clear, though, how broad she thinks the constitutionally required "ministerial exception" is.
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