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 12, 2012

Saletan on "After-Birth Abortion"

Will Saletan weighs in on the "after-birth abortion" article discussed earlier on MoJ:

The challenge posed to Furedi and other pro-choice absolutists by “after-birth abortion” is this: How do they answer the argument, advanced by Giubilini and Minerva, that any maternal interest, such as the burden of raising a gravely defective newborn, trumps the value of that freshly delivered nonperson? What value does the newborn have? At what point did it acquire that value? And why should the law step in to protect that value against the judgment of a woman and her doctor?

Misunderstanding (or misrepresenting) the concern for religious freedom

My resolve, in the wake of its recent decision to run an ignorant, nasty, and bigoted advertisement, not to engage New York Times pieces on this blog was, it appears, pretty weak.  (That said, I hope all of you are cancelling your subscriptions, and urging any Catholic institutions with which you are affiliated to do the same.) 

In this piece ("Leaps of Faith"), Molly Worthen charges that the recent expressions of concern about the Obama Administration's insensitivity to, and undervaluing of, religious freedom are really part of a strategy to deny or question the President's own faith, to paint him as a "faker on religious freedom," as part of the "ongoing attack on his legitimacy."

Groan.  This is nonsense.  This Administration has said and done a number of things that, taken together, more than justify the concern that it does not value religious freedom -- and does not appreciate the constraints that a meaningful commitment to religious freedom puts on governments -- to the extent it should.  It is entirely reasonable to worry, given what the Administration has done, that it does not value, to the extent it should, a rich and pluralistic civil society when it comes to religious social-welfare institutions and their distinctive character.  Ah, but -- like a clever detective in a Dan Brown or Umberto Eco novel -- Molly Worthen sees what is really going on:

[Religious liberty] is a code phrase alternately benign and sinister, much like that other clever cloak for bigotry, “states’ rights.” In the context of the 2012 race, the charge that Obama subverts religious freedom is a code meant to label the president as an impostor, a blasphemer of the American gospel who adheres to another religion entirely.

No, Ms. Worthen, it isn't.  And, just a note:  Charging that concern for religious freedom is really sinister (racist?) code-talk is hardly the kind of "civil discourse" that our President -- whose "legitimacy" I do not question, even if I regret his election -- says (even if not consistently) our politics is lacking.

Debating the HHS Mandate on Contraception and Not Using Your Brain: Faculty from “The Jesuit University in Cleveland” – Part 2

The faculty members at John Carroll University who wrote to Rev. President Niehoff, S.J., urging him to “take a stand in the face of the bishops’ unwillingness to accept the accommodation offered by the Obama administration” (here) assume that the administration’s revised policy constitutes a genuine accommodation.

Is this in fact the case?

The so-called “accommodation” was a move from (A) a requirement under which religious institutions such as Catholic hospitals, universities and food pantries must provide health insurance to their employees that includes the provision of contraceptives, abortifacient drugs, and sterilization procedures free of charge to (B) a requirement under which religious institutions such as Catholic hospitals, universities and food pantries must provide health insurance to their employees that includes the provision of contraceptives, abortifacient drugs, and sterilization procedures free of charge but where the insurance companies will purportedly pay for them.

The supposed shift of financial responsibility to the insurance companies for these objectionable drugs and services has been rightly characterized a rhetorical sleight of hand, “a cheap accounting trick” (here).

Everyone knows the expression “There is no such thing as a free lunch.”  The same is also true for contraceptives.  “There is no such thing as a free dose of Ortho Tri-Cyclen.”  Someone is going to pay.

And if the insurance companies have anything to say about it, it won’t be them (see here).  They will take the risk pool presented to them by the demographic profile of the religious institution’s workforce and calculate the cost of insurance, including the expected cost of the mandated contraceptives, abortifacient drugs and sterilization procedures.

Those who seriously believe that the drugs and services mandated by the HHS rule are truly “free” – provided on a complimentary basis by employers’ health insurance companies – probably also believe that the drinks served by casinos to the gamblers at their blackjack tables are also “free.”  Only the hopelessly naïve dupe or the willfully ignorant person doesn’t know in this situation that the expression “Compliments of the house!” actually means “You’re paying, and so is the loser sitting next to you who just went bust.”  Your next martini isn’t “free” and neither was the one before it.  Someone’s paying and it isn’t the house.  In the case of health insurance it’s you and the person who paid for your seat, namely, your employer.

Even aside from the question of cost, the so-called “accommodation” forces a religious institution to make available under its auspices contraceptives, abortifacient drugs and sterilization procedures that violate its beliefs.  In this way the government is empowered to pick and choose among the religious groups it likes and make liars out of the religious institutions it disfavors (see here).  A Catholic university or hospital may attempt to teach its members and its employees that engaging in this sort of activity is profoundly immoral and deeply harmful to society – all the while having to provide through its insurance plan the very thing it says is evil.  Plainly this has the effect of undermining its religious witness.  Actions speak louder than words, and the act of forcing the religious institution to support such actions through its insurance plan (albeit begrudgingly) says “Sure, the Church says its wrong, but nobody really believes that crap.  They’re going along with this just like everybody else.”

The alternative, as Francis Cardinal George has noted (here), is to force the Church out of the “business” (more correctly, the “apostolate”) of the corporal works of mercy (social services, hospitals, and nursing homes) and education (schools and universities).  Plainly, extricating the Catholic Church from healthcare is a goal of many of the President’s allies (see here) some of whom were involved in crafting the administration’s policy (here).

Beyond this, the larger import of the HHS mandate is that the federal government is attempting to exercise a radical kind of power that is unprecedented in the history of this country.  Through the mandate the government is claiming the power to determine which religious institutions are really religious and those that are not – a distinction the government makes in the service of its own political ends.  It subjects the former to one standard of regulation and the latter – those it deems insufficiently religious – to another standard.  Thus, parishes and “houses of worship” qualify (see here), but universities, hospitals and soup kitchens do not.

This is an ecclesiology defined and enforced by the state: The Church cannot be a university or a hospital or a social service organization.  It can only be a place of worship.  What was once the splendor of our country, a capacious and vibrant freedom of religion, is now severely truncated – reduced to a well-circumscribed freedom of worship.

Truncated is an understatement.  Under this regime freedom of religion is now mutilated.  The arms of the Church – the parts of her body acting in the world – are now severed.  She can still speak (for now) but she is precluded from bearing witness to the integrity of the Gospel through her actions.

It is no exaggeration to recognize this move as a form of oppression that may – remarkable as this may sound – presage a coming tyranny.  Having said that, we would be wise to take note of John Allen’s perspective (here): “In the States, a threat to religious freedom usually means you might get sued, while in many parts of the world, it means you might get shot.  Surely we can all agree that’s a more dramatic set of circumstances.”

Fair enough.  Doomsayers predicting a coming era of Christian persecution in the U.S. might be criticized for their hyperbolic assessment of the present day and even perhaps for crying like Chicken Little “The sky is falling.”  Surely we can distinguish between the situation where a frog is thrown into a pot of rapidly boiling water from the one in which the frog is submerged in a pot of tepid water that is gradually heated.  The prudence of avoiding hyperbole should not prevent us from acknowledging that the heat is on!  By contrast, the letter signatories from John Carroll are saying “Come on in, the water’s fine!”

Fourth, the letter says that while the bishops “accused the Obama administration of attacking religious liberty” that “[o]n the contrary, we believe the insurance mandate is driven by a concern for women’s health.”  Even assuming, arguendo, that “health” is at stake (see Part 1 of this post for a different view), the letter’s statement is a bit of a non sequitur.  It is entirely possible for both statements to be true:  that the administration is earnestly driven both by a concern for women’s “health” (so defined) and by a desire to marginalize religious voices in the public square even at the expense of the First Amendment.  The two are not mutually exclusive.

There are, however, reasons to doubt that the current policy is all about women’s “health” as secured through access to contraception.  Given these facts: that the generic contraceptive pill can be purchased at Target for $9 a month (here), given that many metropolitan areas have massive free condom distribution programs (here), that the Center for Disease Control’s own report (here) on the use of contraception indicates that 99% of sexually active women had used some form of contraception and that questions of “access” and “affordability” didn’t even rank among the reasons surveyed by the CDC as to why women do not use contraception in a given instance –  are all facts that show that the current push for contraception is a ruse.  That is, something other than a heartfelt concern for “access” is driving the train.

Certainly the strategy employed by the President and his allies has been to lie in a brazen fashion – and the press unfortunately goes along.  For example, no one is suggesting that contraception be outlawed or otherwise prohibited – but this is precisely what Senator Chuck Schumer said of those seeking to overturn the HHS mandate (here).

What does this portend for the future? Abortion as a mandated “preventive service”? (see here).  Certainly abortion, no less than contraception, is legal.  If the current version of the mandate stands, there is no reason in principle why this could not be the case.  Would this trouble the faculty at John Carroll?

Fifth, the authors claim that without the insurance mandate for contraceptives there will be more unplanned pregnancies and “more abortions.”  Here the letter reflects another secular dogma, namely, the belief that what is needed to lower the incidence of abortion is greater access to contraception.  However, the authors of the letter seem wholly unaware of the growing body of literature that calls into question this article of secular faith (see here, here, and here).  As sociologist Michael New observes (here),

separate studies from Guttmacher and the CDC have both found that a very small percentage of sexually active women forgo contraception due to either cost or lack of availability. Considering the government programs already in place, it is by no means clear that additional funding would increase contraceptive usage. Furthermore, there is no peer-reviewed research, analyzing actual data on contraception spending and abortion rates that finds a negative and statistically significant correlation between the two.

Indeed, there is no consensus on the correlation between the availability of contraception and the incidence of abortion as, for example, the 2003 Guttmacher Institute referred to “showed simultaneous increases in both contraceptive use and abortion rates in the United States, Cuba, Denmark, the Netherlands, Singapore, and South Korea” (see here).  Moreover, this same study “failed to consider how the availability of contraception affects sexual behavior and how a more permissive sexual culture will result in a higher incidence of abortion” (see here).  Where contraceptive use is the socially accepted norm but where contraception fails, abortion can become not a separate moral decision but the next logical step – the sensible thing to do.  By contrast New notes (here) that “there exists a very substantial body of peer reviewed research from public health and economics journals which shows that public-funding restrictions and parental-involvement and informed-consent laws do the same but that “these studies typically receive scant attention from mainstream-media pundits.”  Sadly, this “scant attention” is also in evidence on the faculties of schools like John Carroll.

Sixth, the letter closes by urging the President of John Carroll, Rev. Robert Niehoff, S.J., “along with the presidents of other Catholic and Jesuit universities” to “endorse a policy of insurance coverage of contraception that respects the religious liberties and health of all who teach and work at Catholic colleges and universities.”  But the policy called for by the U.S. bishops – a reversal of the HHS mandate – does precisely that.  It respects the “religious liberties” of those who work at Catholic colleges and universities and social service organizations by allowing them to make their own moral choices regarding the use of contraceptives, abortifacient drugs and sterilization procedures.  Moreover, it does so by simultaneously respecting the “religious liberties” of the institutions themselves by freeing them from the burden of paying for, promoting, or making available these morally objectionable drugs and procedures.  Indeed, the only guarantee of religious liberty is a policy that repudiates the very thing that the letter signers hope to achieve.

In recent months a number of law schools have been accused of failing to prepare their students for the practice of law and some have even been sued by their recent graduates (see here and here).  If the letter above exemplifies the kind of intellectual rigor that John Carroll students typically see from their teachers in the classroom, then they may wish to consider filing a similar lawsuit demanding that their tuition be refunded.

And if they then use this money to purchase contraceptives, we’ll know what they’ve been thinking with.

Rights Gone Wrong

In the current issue of America, I review Richard Thompson Ford's Rights Gone Wrong: How Law Corrupts the Struggle for Equality.

Sunday, March 11, 2012

The Misunderstanding and, therefore, the Misuse of John Courtney Murray

 

In its March 5 issue, America magazine has a series of essays which fall within the caption “Religious Liberty at Risk?”. The question mark in the cover title suggests in the periodical, which bills itself as “the National Catholic Weekly”, that the issue of religious liberty at risk is a debatable one, at least for Catholics, in the United States today.

Some of the contributions in this issue of America argue that the concerns being raised these days about religious liberty by Roman Catholics, largely but not exclusively within the purview of the HHS mandate, necessitate a “balancing act” between the rights of the Church and “the rights of all.” Who the “all” are is never addressed (people who want birth control, abortion, and sterilization?), and the question surrounding what are the “rights” claimed is ambiguous in large part.

Several of the contributions rely on the thinking of John Courtney Murray, S.J. regarding the subjects of religious freedom, morality, and the law (civil). In this regard, I am sure that most folks who read carefully his work would agree that Murray, the Declaration on Religious Liberty, and international texts such as the Universal Declaration of Human Rights share the same view that authentic religious freedom is simultaneously a personal and communal right with both private and public dimensions that must be protected. But I detected from time to time that some of the conclusions in portions of the America articles cannot be supported by the thought of Murray as is suggested by several contributors. To comprehend what are the contentions that misuse of Murray, one must take stock of how Murray is brought into the neuralgic issues of the day (same-sex marriage, abortion, and contraception). Second, it is crucial to comprehend all of Murray rather than just some of Murray.

All of these issues of public policy involve some dimension of law promulgated by the temporal authorities of the United States. In addition, these issues also intersect reasoned moral concerns that are addressed by the Church’s teachings. It is also patent that there is polarization in the country today over what should public policy be regarding these neuralgic issues. But it would be a mistake to suggest that the polarization that exists is solely attributable to tensions and conflicts between Church teachings and public policies. Certainly the Church is not the responsible agent for there being “red” states and “blue” states. Still, there is polarization. What might be the responses of Murray to these disagreements about public life and policy which are manifest today?

First of all, Murray would have to acknowledge that while there is not identical overlap between the moral teachings of the Church and public policy that is codified in law, there is frequent intersection. One need only look at the elements of the Decalogue dealing with right-relation between people to see these precepts duplicated in public law that address theft, killing, perjury, and elder abuse. It is not the coincidence of the Church’s moral teachings (and the moral view of religion more generally) and the civil law that is the issue that is the concern in this posting. Rather, this posting deals with the issue of religious liberty today and how far should the state and its law interfere with the moral beliefs and practices of the religious person and religious communities that include the Catholic Church?

In regard to the controversy of the present moment about religious freedom, the distinction between public and private moralities is not the issue. This is an important topic that Murray was not adverse to addressing, but it has little or no application to the current debate between religious freedom and conflict with public law.

Rather, the concerns about religious freedom involve whether public law must coerce the religious believer and religious community to exercise publicly their moral teachings at their peril. The problem is not that the Church is imposing its beliefs on the temporal world. The problem is that the temporal authorities, which have secured in law morally problematic positions, are mandating that the religious believer and the religious community must be coerced into doing that which is morally unacceptable.  Some thinkers and writers have recently argued that Murray asserted that for the law to be effective, there must be consensus about underlying premises if the law addresses moral issues intersecting people’s conduct. I am sure that most folks would agree that laws prohibiting theft are morally acceptable, but the fact that there exists a minority which does not agree indicates that there is not a consensus on this matter. Murray would did not argue that consensus about a moral issue was crucial to the viability of legislating on or for the moral issue. His concern about consensus took a different path.

He understood that the consensus that was essential to the foundation of the United States and its legal regime was also common to Catholic teaching. But this consensus that was crucial to our nation’s foundation seems to be in short supply today as is evidenced by the absence of appeal to ordered liberty—not just for believers and Catholics but for all Americans. What Murray did say about consensus was this: American institutions of the second half of the twentieth century, including the American academy, have “long since bade a quiet goodbye to the whole notion of an American consensus, as implying that there are truths that we hold in common, and a natural law that makes known to all of us the structures of the moral universe in such wise that all of us are bound by it in a common obedience.”

Obedience and law frequently go hand in hand. In the present context of concerns about religious freedom and conflicts with the liberty to have an abortion, to participate in same-sex marriage, or to use birth control it is not these latter “liberties” that are threatened; rather, it is religious freedom which is. What is emerging more clearly with the passage of time is the fact that good citizens who are also good Catholics are being forced to put aside their moral beliefs and embrace against their religious convictions the amoral, the immoral, and the morally compromised.

Murray was a firm believer in the natural law as the exercise of human intelligence comprehending the intelligible reality that surrounds us. What gave him concerns two generations ago was the rise of “the voluntarist idea of law as will” that could push aside the objective reason of human intelligence comprehending intelligible reality. He foresaw the day when the “noble many-storeyed mansion of democracy” would be dismantled and “levelled to the dimension of a flat majoritarianism, which is no mansion but a barn, perhaps even a tool shed in which the weapons of tyranny may be forged.”

I submit that Murray saw what was beginning to happen to the enterprise of the authentic American consensus and the vital role that religious freedom has to exercise within the forming of this consensus. He issued his warning founded on the inextricable nexus between the moral outlook and the laws that must be made by a society that calls itself democratic. Democracy for him would fail when the moral perspective was forced to embrace the morally problematic in the formation of laws and public policy. This is why the Catholic bishops today are exercising their teaching authority to remind all people of good will about the non-derogable nature of religious freedom. The debate about religious freedom today does not entail the imposition of Catholic moral teachings on the rest of society; rather, it involves the imposition of immoral and amoral views on all, even those who are protected by the right of religious freedom, a right that preceded the state which is now being manipulated to impose views antithetical to religious liberty.

In regards to the future of the American consensus, Murray stated, “it would be for others, not Catholics, to ask themselves whether they still shared the consensus which first fashioned the American people into a body politic and determined the structures of its fundamental law.” I think Murray would be of the view that the U.S. bishops are taking a course that is consistent with his notion of religious freedom.

 

RJA sj

Why Study the West?

The new issue (Vol. 25, No. 1, March 2012) of Academic Questions, the excellent journal of the National Association of Scholars, is devoted to the study of Western civilization. It includes interesting articles by Charles Butterworth, Robin Fox, Stephen Balch, and others. It also includes an interview I gave to editor-at-large Carol Iannone.

=============

Why Study the West? An Interview with Robert George

by Carol Iannone, editor-at-large of Academic Questions

Iannone: Why is Western Civilization worth studying in your view?

George: By any standard of measure, the intellectual, moral, religious, political, economic, scientific, technological, artistic, architectural, and literary achievements of the West are extraordinary. It would be foolish not to study them, examine their roots, and explore the complex relationships among them, such as the relationship between Western religious ideas and the development of science. Our students are—as we ourselves are—inheritors of these achievements. Their culture—and, thus, their lives—have been shaped by them. They deserve to understand them. And if they are to maintain all that is worth maintaining, and reform what needs reforming, and pass along to their own children a vibrant and healthy culture, they need to understand them.

Iannone: What about Western Civilization is unique?

George: Science as we know it could not have developed outside of the West. It is a great gift of the West to the entire world. Moreover, ideas of natural law, republican government, civil rights and liberties, and the dignity, inviolability, and fundamental freedom of the individual are fundamentally Western insights. These, too, are gifts to the world. Many of these insights were hard-won. Some might yet be lost. Certainly, they have not always been honored, or fully respected, by the people of the West or their political, religious, and cultural institutions. Still, they are exceptional achievements.

Iannone: How important are Judaism and Christianity and the moral values they foster to the maintenance of Western Civilization? Are there other essential elements of Western thought that should be part of any curriculum—certain books, ideas, developments?

George: If there were no Judaism, there would be no Christianity. There is a profound sense in which Christianity is the “other” Jewish religion emerging from the transformations in Jewish faith and practice that resulted from the destruction of the second Temple in Jerusalem. If there were no Christianity, there would be no Western civilization. Most of the great achievements of the modern West were underwritten by Christian, and therefore also by Jewish religious and philosophical and moral ideas. Of course, pre-Christian Greek and Roman thought, many of the aspects of which were taken up into Christian thought, were also profoundly important. Can these achievements be maintained if Jewish and Christian faith collapses in the West? Can Western ideals and institutions flourish when utterly severed from their religious roots? Frankly, I doubt it. But it appears that we will know for sure before too long. Much of Europe today is engaged in a vast experiment that will tell us whether cultural and political achievements whose historical roots are in religion can be sustained and nurtured in a cultural and political milieu of extreme secularism.

Iannone: How do the more secular ideas of the Enlightenment fit into the foundations of the West? Is the West a balance of the two elements, religious and secular?

George: Certainly Enlightenment thinkers made important contributions to the Western tradition, particularly in the advancement of personal and political liberty. The “secularism” of the Enlightenment is, however, frequently exaggerated. First, it is worth noting that there was no single Enlightenment, but several different Enlightenments. Some Enlightenment, or proto-Enlightenment, thinkers—especially among the French—were hostile to Christianity and religion generally; others were not. Some Enlightenments were infected with anti-religious zealotry—again, the French Enlightenment especially—others, such as the Scottish Enlightenment, much less so.

Second, there were important Enlightenment figures who developed and built on the classic Christian understanding of a legitimate realm of the secular—an understanding that Christians have always found rooted in Christ’s command to render unto Caesar what is Caesar’s and unto God what is God’s. Of course, Christianity is opposed, as it should and must be opposed, to secularism, as an anti-religious ideology that seeks to drive religion from the public sphere and, in its more radical forms, to eliminate religious faith altogether. Christianity does not, however, oppose the idea of the secular or the idea of a legitimate secular domain. Indeed, Christianity can claim the lion’s share of the credit
for inventing it.

Moreover, classic Christianity is not fideistic. It holds, rather, that faith and reason are mutually supportive and equally necessary to a rich and accurate understanding of our condition as human persons. In our own time, this conviction was reaffirmed by Pope John Paul II in the opening sentence of his great encyclical on the relationship of faith and reason, Fides et Ratio. There, the late pontiff said that “faith and reason are like two wings on which the human spirit ascends to contemplation of truth.” This is entirely compatible with what is noblest and best in Enlightenment thought.

Iannone: You have written of the liberal arts as enabling the student to gain self-mastery? Why is that important?

George: Self-mastery is important because it is a basic, irreducible dimension of the well-being and fulfillment of rational creatures—and, as Aristotle taught, we human beings are just that: creatures whose nature is a rational nature. Moreover, self-mastery—the capacity to exercise rational control over one’s emotions, passions, and desires and direct them toward good and upright ends—is indispensable to the project of self-government. If we believe in republican democracy, as we should; if we believe in the ideal of free persons, who participate as equal citizens in the project of self-government, as we should; if we believe in the dignity and rights of the individual in a regime of ordered liberty, as we should; then we must dedicate ourselves to educating young people for self-mastery. A political regime of self-government can only be sustained among people who are capable of governing themselves. People incapable of self-mastery will quickly prove to be unfit for self-government.

Iannone: The idea of self-mastery seems so opposite of everything that is promulgated today—being true to ourselves, satisfying our desires, if it feels good do it. Do you think self-mastery has appeal for most of today’s students, cultivated so much to the opposite? After all, what you might call slavery to the self many call freedom and liberation.

George: Well, it is Plato and Aristotle versus Charlie Sheen and Lady Gaga, isn’t it? And the old Greeks aren’t given equal time on MTV and E! But, look, as a teacher, I have faith in our young people. They are capable of rising to meet great challenges, if only we, their elders, are willing to issue those challenges and point the way. Fundamentally, the problem is not with their generation, it is with ours. It was our generation that lost faith, not only faith in God, in any meaningful sense, but faith in man—in reason, in beauty, in truth, in moral, aesthetic, and intellectual standards of any type, in the very ideas of good and evil, right and wrong. It was ours that dubbed ourselves the “Me Generation,” and proclaimed the imbecilic doctrine of “if it feels good, do it.” We are the generation that produced widespread slavery to “recreational” drugs, a sexual revolution that has had devastating consequences for millions of children—especially in the poorest and most vulnerable sectors of our society—and the collapse of intellectual standards.

True, the result is a culture in which young people have been cultivated to identify “authenticity” with acting on one’s feelings and desires, whatever they happen to be. But that is not set in stone. We really can challenge our children and our students to have higher aspirations and to lead richer, nobler lives. Young people in every generation are naturally idealistic. They are open to prophetic voices that challenge the moral-cultural status quo. They are capable of being inspired. It’s just a matter of doing it. So I have an idea: let’s do it.

George: I believe in going forward with all cylinders firing. Expose students to the thought of the Greek philosophers and Roman jurists. Make sure they know all about the Hebrew prophets and the Christian saints. Teach them about the philosophical and theological ideas that made possible the emergence of modern science and the development of republican democracy. For heaven’s sake, introduce them to Shakespeare and Bach and let them see why Snoop Dogg and Hank Williams, much as I love him, don’t represent quite the same level of achievement.

Iannone: Do you see the freedom and self-mastery this study brings as something that goes beyond the individual to be of benefit to society, or is it mainly about the individual?

George: The last man on earth, living out his remaining days with no hope of interaction with another human being, would still do well to strive for self-mastery. His nature would remain a human nature, a rational nature. His flourishing would still require developing his own character in a way that would place reason in control of passion or desire. He would not be morally free to live the life of a brute animal. He would be a fool if he did so. But, of course, none of us is that man. All of us are members of various communities—the community of a family, the community of a faith, the community of a locality and a nation. For those communities to flourish, for them to have integrity, their members must be people who are masters of themselves. Someone who imagines that there can be well-integrated communities composed of poorly integrated individuals, imagines “what never was and never can be.” Communities pay a heavy price for the lack of self-discipline, self-control, and self-mastery among their members. This is a proposition for which ample empirical data is available, alas.

Iannone: Do you see a study of Western Civilization enabling students to realize what is at stake in upholding the West and defending it from those who would destroy it?

George: In my experience as a teacher—and as a student myself—I find that the more deeply people understand Western civilization and its achievements, the more profoundly they appreciate them. So, it seems to me, in the face of contemporary challenges to Western ideals and institutions, there is nothing more urgent than deepening the understanding of our people of the traditions of faith, thought, and social and political life that made the West. Does this mean that we should neglect the study of non-Western traditions or denigrate their achievements? No. That would be a decidedly un-Western thing to do, since a cardinal tenet of Western philosophy is to embrace truth and value wherever they are to be found. We mustn’t fear teaching our young people about other cultures, but we should not disdain to teach them about their own.

Iannone: What would you say are outstanding flaws or shortcomings in Western thought that need corrective, perhaps from the study of other cultures or sources?

George: It is a tenet of Western thought that the whole world—indeed, the whole of reality—is to be explored, investigated, reflected about, and to the maximum possible extent understood. Furthermore, wisdom is to be cherished, no matter its source. That is why ethnocentrism and chauvinism are antithetical to the Western tradition, though there are certainly people in the West who have fallen into these errors. And so, as recent popes, among others, have taught, there is much to be gained from engagement with Islam, for example, and the great religions of the East, such as Hinduism and Buddhism. The West is truer to itself when it is open to such engagement.

Iannone: We think of American values and by extension Western values as universal. But is there a way to maintain our own cultural heritage while still being open to the entire world?

George: Well, yes, we do believe that our values are universal values. We do not suppose, for example, that the principle of the profound, inherent, and equal dignity of each and every member of the human family is true in Utica but not in Uganda. We believe it is true always and everywhere, and that all people and all peoples are bound under the moral law to honor the principle in the design of their political and social institutions and in the practices of their governments and societies. So we reject any form of “multiculturalism” that regards opposition to slavery, for example, or the reduction of women to the status of sexual objects, as mere local Western values that do not hold in non-Western societies or morally bind non-Western governments. But that does not mean that non-Western societies must be made to look just like Western ones or even that we should wish that they did. Our most basic values are universal; but many of our institutions and practices are not. There is vast room for cultural variety reflecting different histories, religious and other traditions, prudential judgments, and even preferences. Between moral relativism, which is contemptible, and chauvinism, which is appalling, there is a sensible and rationally completely defensible position that distinguishes between universal—and fundamental—principles of right and wrong, justice and injustice, and non-basic matters on which a diversity of cultural practices is to be expected, accepted, and, in many cases, celebrated.

Iannone: And what about our own culture? Do we have a right to preserve it as the means through which the universal principles are realized in our present situation? Some cultures may not be compatible with our own; Islam permits polygamy, for example, as part of the religion itself. Can our culture tolerate polygamy, whether officially or unofficially recognized? Are there times when we would have to say that theoretically the universal values hold, but not every culture is able to profess them at present to the same level as ours and that therefore their absorption into the West is problematic?

George: Yes, of course we have the right to protect the principles and institutions we believe serve the dignity of the human person and the causes of justice and the common good. If we judge, as we should, that marriage is the exclusive conjugal union of one man and one woman, and that the institution of marriage is the foundational unit of society whose role is indispensable to the transmission of core values and virtues, then we must fight off efforts to redefine marriage as something that it isn’t or weaken it in any way. We certainly should not recognize polygamous or polyamorous sexual partnerships as marriages. Does the rejection of polygamy mean that Muslims, whose religion accepts the practice, cannot be good citizens? I think not. Vast numbers of Muslims in America are already proving themselves to be good citizens—excellent citizens. As the Muslim scholar Hamza Yusuf has noted, no Muslim is required to practice polygamy or advocate laws permitting it, and Muslims are bound by Islamic teaching to respect the laws of the communities in which they dwell.

It is worth noting that there was a time not long ago when Catholics in America were held in suspicion because their religion did not profess a robust doctrine of religious freedom. This was understandable on both ends. The teachings of nineteenth-century popes included statements about not only religious freedom, but democracy itself, that made Protestant Americans very nervous about their Catholic neighbors. On the Catholic side, the Church’s understanding of the meaning of democracy and religious freedom had been shaped, not by the American experience, but by the ideology and practices of the French revolutionaries. The wonderful thing is that American Catholics—and others, including Catholics living under atheistic tyranny in Soviet puppet states—were able eventually to persuade their mainly Western European church leaders that embracing a robust conception of democracy and religious freedom would not entail accepting such French Revolutionary ideas as religious indifferentism or relativism, or the notion that religious vows don’t bind, or that it is immoral to take them, or the complete subservience of the Church to the state. Once that happened, the Church became a powerful force for democracy and religious freedom across the globe.

Iannone: As a follow-up, could there be a difference between those who have fallen into ethnocentrism and chauvinism, as you say above, and those who conscientiously believe we can’t be so open as to allow our principles and the culture that transmits them to be overtaken by those who think and practice very differently, who can use our openness to undermine us?

George: Absolutely. But that means vigilance not only against those who would undermine our principles and institutions in the name of religion, but also against those who would undermine them in the name of secularist, including liberal secularist, beliefs.

Friday, March 9, 2012

Notre Dame's Journal of Law, Ethics, and Public Policy soliciting papers

            The Notre Dame Journal of Law, Ethics and Public Policy is currently soliciting articles for publication in our upcoming Spring 2013 issue. The issue will focus on the legal, ethical and policy considerations on a variety of important public policy issues currently facing the country. The Journal is unique among legal periodicals because it examines public policy questions within the framework of the Judeo-Christian intellectual and moral tradition. The Journal seeks to create a dialogue of ethical issues that is inclusive of diverse perspectives.  The Journal has a national audience of persons actively involved in the formulation of public policy, and often includes timely pieces from a broad spectrum of prominent scholars and officials.  Past contributors include Presidents George W. Bush and Ronald Reagan, Justice William J. Brennan, Secretary-General Kofi Annan, Judges Richard Posner and Diarmuid O’Scannlain, Senators Bill Bradley and Orrin Hatch, Governor Mario Cuomo, Mayor Rudolph Giuliani, Father Richard John Neuhaus, and Michael Novak, among others. The Journal’s unique focus is widely recognized, as demonstrated in citations to the Journal by various state and federal courts, including the United States Supreme Court. 

            If you are interested in submitting a piece for publication, please contact me directly at (505) 280-8334, or via e-mail at [email protected].  Should you wish to examine a prior issue, the Journal would be pleased to provide you with a copy.  On behalf of myself, the Journal, and the University of Notre Dame, thank you for your kind consideration.

Sincerely,

Breanna Houghton ([email protected])
Solicitation Editor
Notre Dame Journal of Law, Ethics and Public Policy

FFRF urges liberals to "consider quitting" the Catholic Church

NOTE:  I deleted the content of the original post, because it became clear to me -- as it probably should have before -- that there was no good reason to call additional attention to the Freedom from Religion Foundation's mean-spirited and ignorant advertisement, and no real point to noting the double-standard reflected in its publication.  "Blogging while really irritated" is, I know (even if I sometimes forget), generally to be avoided.

As for "quitting" the Church:   God works in mysterious ways, and maybe -- during Lent -- the FFRA's crude challenge can provide an occasion for reflecting on the fact that it is certainly not because I deserve it that Christ called me to and sustains me in His Church.

"A new journal for the New Evangelization"

Go here, to read about (and subscribe to) a new journal, Church Life:  A Journal for the New Evangelization, being published by Notre Dame's Institute for Church Life.

Stoner, "Common-Law Liberty"

One of the books that I've learned most from in the last few years is James R. Stoner's terrific Common-Law Liberty: Rethinking American Constitutionalism (2003).  Stoner's thesis is not only that American constitutional law cannot be understood well without reference to the common law tradition, but that "the common law is a key guide to understanding the fundamental principles of our Constitution and a guide for deciding contemporary constitutional cases."  Common-law constitutionalism has been taken in different directions in recent years (see, e.g., David Strauss' interesting work).  But it is in Stoner that, in my view, one sees the purest and most convincing expression of common-law constitutionalism.

Here is a particularly insightful passage from the book (at 59) dealing with common-law constitutionalism with respect to the religion clauses.

To attend to the common-law moment in exploring the law of free exercise is, in other words, to examine as a source of law the American experience of religious liberty, as it can be collected from constitutions and statutes, and even from the laws and traditions of particular churches.  Obviously, these various sources of law will not weigh equally in a court's determination of a particular dispute before it, but it is characteristic of common law to determine the applicability of rules in the context of the facts of the instant case, not to seek a single rule or theory to encompass all imaginable cases.  It is, for example, not irrelevant to such a consideration that common law itself arose in a particular religious context . . . . Nor is it irrelevant to such a consideration that American circumstances with regard to religion, at the time of the Founding and perhaps still today, are unique, and that those circumstances vary markedly from state to state.  To recommend a common-law perspective, then, is to suggest avenues of inquiry rather than to propose a ready theory.  Yet it does suppose a certain openness to experience, both in its deference to the wisdom collected in tradition and in its willingness to entertain the possibility of a genuinely new and unanticipated case.