As many of our readers will now know, a bit over 14 hours ago, at 2.50pm Wednesday, the 15th of April, two crude bombs detonated near the finish line of the Boston Marathon. At the time of this writing, it is known that three people have perished, while 113 are wounded.
Within mere seconds of the bombs' detonations, scores, then hundreds of people rushed straight to the sites without hesitation, pulling away iron barricades, tearing at yellow police tape, all to bring aid to those felled, injured, and in some cases dismembered or killed. Along the street where this was all happening, flags from all nations flew atop poles alongside one another, representing the multitude of nations there likewise represented by a miraculously diverse array of runners. As it happens, moreover, hundreds of these runners ran not for themselves or their nations alone, but for cause after cause to which donors had agreed to contribute in proportion to miles run.
We really all are, it would seem, in this together. The fact of it came across also - along now with understated competence and no-nonsense resolve - in the words, faces, and comportments of those officials addressing the inevitable media queries. The Governor of Massachusetts, the Chief of Police, and sundry additional federal, state, and local authorities all took questions together, all knowing precisely to whom among all in each case to direct the question - as if they all constituted one orchestra with a respected conductor. A trauma surgeon at Mass General Hospital, though alone, handled questions exhaustively and with likewise quiet confidence.
Experiencing all of this, you can't help but marvel at the solidarism and Stoicism of these great people of Boston, whether they be citizens for life or citizens for a day. These are people worth not only praying for, but directly assisting as well, in any way we are able.
"No one is arguing for the legal recognition of polygamous or polyamorous relationships as marriages!"
"Recognizing same-sex partnerships does NOT open the door to changing fundamental marital norms! It will NOT change the nature of marriage as a monogamous and exclusive union--it will simply make marriage as we've always understood it available to more people."
That was then; this is now. Have a look at the article by Jillian Keenan in the perfectly mainstream on-line liberal magazine Slate.
Money quote:
"The definition of marriage is plastic. Just like heterosexual marriage is no better or worse than homosexual marriage, marriage between two consenting adults is not inherently more or less “correct” than marriage among three (or four, or six) consenting adults. Though polygamists are a minority—a tiny minority, in fact—freedom has no value unless it extends to even the smallest and most marginalized groups among us. So let’s fight for marriage equality until it extends to every same-sex couple in the United States—and then let’s keep fighting. We’re not done yet."
I will be accepting "I have to admit it: you told me so, Robby" messages at [email protected]. (See here: http://www.cnn.com/2013/03/20/opinion/george-gay-marriage. While I'm at it, I'll hazard another prediction, though I'd love to be wrong: The Slate article will not produce a single serious critique by a major scholar or activist in the SSM movement arguing that marriage is not completely plastic, and identifying a principled ground for rejecting the legal redefinition of marriage to include mjultiple-partner sexual relationionships.)
My colleague Michael Moreland just made the following very welcome announcement to the Villanova Law community:
I am pleased to announce that the 37th annual Giannella Lecture will be delivered by Susan Stabile, the Robert and Marion Short Distinguished Chair in Law at the University of St. Thomas (Minnesota) School of Law. Professor Stabile is one of the nation's leading employee benefits and pensions scholars as well as a noted author in the area of Catholic social thought and law. In addition to editing the leading casebook Pension and Employee Benefit Law, 5th ed. (Foundation Press, 2010), Professor Stabile recently published Growing in Love and Wisdom: Tibetan Buddhist Sources for Christian Meditation (Oxford University Press, 2012). Professor Stabile received her BA from Georgetown University and her JD from New York University School of Law, where she was editor-in-chief of the NYU Law Review. After graduation from law school, she was associated in New York and Hong Kong with the law firm of Cleary, Gottlieb, Steen and Hamilton, where she practiced corporate and securities law and later specialized in employee benefits and executive compensation matters. Prior to joining the St. Thomas faculty, Professor Stabile was the Dean George W. Matheson Professor of Law at St. John’s University School of Law. We look forward to welcoming Professor Stabile back to Villanova next year.
Michael Davies (and others) said it long ago: the documents of Vatican II are riddled with intended confusion. Now Walter Cardinal Kasper is saying what traditionalists knew all along. Can there be any wonder, then, that the "new spring time" of Vatican II feels so consistently wintry?
As I argue in a forthcoming paper, given last fall at a conference on the "The Liberty of the Church" sponsored by the Institute for Law and Religion at USD (thanks to Steve Smith and Larry Alexander), Dignitatis Humanae is Exhibit A for this intended confusion. While frequently celebrated for "developing doctrine," and while in parts *seeming* to do just that, Dignitatis *begins* by affirming that it "leaves untouched traditional Catholic doctrine" (integram relinquit traditionalem doctrinam Catholicam). Hence the endless debate about which "hermeneutic" to apply to the Council's documents.
Corey Brettschneider has an interesting book out, called When the State Speaks, What Should it Say? How Democracies Can Protect Expression and Promote Equality. As I hinted at in this paper, there is a lot to welcome and embrace in Brettschneider's book, but there are also a lot of places where I'd have to disagree. In any event, Paul Horwitz has a characteristically thoughtful and charitable post up, at Concurring Opinions, in which he poses a laundry list of questions about the book. Definitely check out his post, which gives voice to (and better expresses than I would have) many of my own reservations.
Here is just one (of 13!) of Paul's detailed questions:
1) Much of Brettschneider’s book argues that the state has an obligation to publicize “the justification for those rights protected by law–namely, their basis in the values of free and equal citizenship.” Elsewhere, he refers to “reasons” for rights, which seems to indicate there might be several, but the overall emphasis seems to be on the idea that there is a particular correct view of the justifications underlying rights. Is it sensible or advisable to argue on the basis that there is a single best justification for rights, and that promoting that particular justification–and arguing against viewpoints that contradict that single justification–is an obligation of the state and of individual citizens and state officials? Most people, I should think, believe (correctly) that rights are subject to a variety of overlapping justifications, including religious ones. Why are we better off starting with a monist approach to rights justifications rather than with a pluralist view that rights are subject to a variety of potential justifications, and that much of the consensus around the importance of rights stems precisely from incompletely theorized agreements about rights from a variety of perspectives? If the justifications for rights are importantly plural, would that not affect the kinds of policy recommendations Brettschneider makes, and perhaps chasten the nuanced but strong recommendations that he offers for a more active, non-viewpoint-neutral state? In particular, why should citizens who, in Brettschneider’s view, have an obligation to engage in a “persuasive response” to speech that undermines free and equal citizenship be obliged to offer what he thinks is the “correct” view of free and equal citizenship and the way in which it supports rights? Wouldn’t it be better if they advanced a variety of views about why rights are right, so to speak, and why hateful and discriminatory views are wrong?
Here is an additional wrinkle: If Michael Perry and others are right (and I think they are, about this) then the best (and maybe the only) "reason for rights" -- that is, the only reason why it is true that the claims rights-talk makes about persons are plausible -- are "religious" . . . then the modern liberal state -- if it is supposed to publicize the "reasons for rights" -- is kind of in a bind.
Paul's follow-up post -- which focuses on the implications of Brettschneider's arguments for religion and religious liberty, is also a must-read, and is available here.
Here is a review, by Patrick and John Garry, of Bruce Ledewitz's Church, State, and the Crisis in American Secularism. The abstract:
Reading a book with which one agrees on the basic assumptions and goals can be a reaffirming and educational experience. However, reading a book with which one disagrees about some of its basic assumptions and goals can be a stimulating and even enlightening experience, particularly if the book presents a logical argument, a compelling and laudable vision, and an openness to opposing views. For this reviewer, Professor Bruce Ledewitz has written just such a book.
I've been a little uncomfortable with the uproar against the Albany teacher who assigned his students to write a persuasive essay from the Nazi perspective that Jews are evil. Yes, given our history, the particular conclusion assigned was bound to shed more heat than light no matter how noble the teacher's intentions were, with foreseeable harm to members of the community. And more broadly, any such assignment is very problematic if not done in a context where the objectives were obvious and there were an entire series of projects through which the students were asked to assume counterintuitive positions. I also have doubts as to whether such an assignment could be pulled off smoothly with such a young age group. However, I also agree with Ken Kersh's point that simply asking students to adopt a moral conclusion:
deprives students of a deep understanding of how it is that people can actually hold those views, and still go to church and sleep well at night -- to understand themselves to be doing the right thing. Besides making students shallower people where it comes to understanding history and political and social thought, it make them shallower in the understanding of themselves: only by seeing how odious and unjust ideas issue from sophisticated and powerful logics (typically in conjunction with intense emotions), can they begin to feel the necessity of continually examining themselves, asking how in their own time and place they might be following similar logics and scripts, both time-tested and new. Learning how others think –- including badly -- is a critical part of learning to think effectively themselves.
When I teach our Foundations of Justice course, I ask students to argue both sides of the abortion issue -- not because I want them to conclude that moral truth is in the eye of the beholder, but because I believe that they will be better advocates when they have put themselves in the shoes of those who oppose their views. Now assigning to high schoolers a proposition that demonizes a religious minority is a much different notion than a case law-driven exercise in advocacy for law students, and so I agree with those who question the high school teacher's prudence in selecting that particular topic, but I'm leery of any emerging tendency to equate categorically the assigned content with the pedagogical objective.
Abortionist Kermit Gosnell is facing the death penalty if he is convicted of the murders for which he is being tried in Philadelphia. Surely, the heinous acts of which he stands accused are depraved. They probably meet the criteria for capital punishment under Pennsylvania law. However, in the event that Gosnell is convicted, which seems likely, I am asking my fellow pro-lifers around the country to join me in requesting that his life be spared.
Someone might make the case for mercy by pointing out that Gosnell merely carried out the logic of the abortion license that is enshrined and protected in our law. One might note that there is no moral difference between dismembering a child inside the womb (which our jurisprudence, alas, treats as a constitutional liberty) and snipping a child's neck after he or she has emerged from the womb (potentially a capital offense). How can our legal system impose the death penalty on Gosnell, given the arbitrariness and irrationality of the underlying law?
But that is not the fundamental reason for our asking for Gosnell's life to be spared.
Kermit Gosnell, like every human being, no matter how self-degraded, depraved, and sunk in widkedness, is our brother---a precious human being made in the very image and likeness of God. Our objective should not be his destruction, but the conversion of his heart. Is that impossible for a man who has corrupted his character so thoroughly by his unspeakably evil actions? If there is a God in heaven, then the answer to that question is "no." There is no one who is beyond repentance and reform; there is no one beyond hope. We should give up on no one.
If our plea for mercy moves the heart of a man who cruelly murdered innocent babies, the angels in heaven will rejoice. But whether it produces that effect or not, we will have shown all who have eyes to see and ears to hear that our pro-life witness is truly a witness of love---love even of our enemies, even of those whose appalling crimes against innocent human beings we must oppose with all our hearts, minds, and strength. In a profoundly compelling way, we will have given testimony to our belief in the sanctity of all human life.
I do not myself believe that the death penalty is ever required or justified as a matter of retributive justice. Many reasonable people of goodwill, including many who are strongly pro-life (and whose pro-life credentials I in no way question), disagree with me about that. But even if the death penalty is justified in a case like Gosnell's, mercy is nevertheless a legitimate option, especially where our plea for mercy would itself advance the cause of respect for human life by testifying to the power of mercy and love.
I do not expect my request to be met with universal acclaim. Given the horrific nature of the acts of which Gosnell is accused, it is understandable that some, perhaps many or even most, will believe that this is not a case where mercy is appropriate. They will not want to join me. I understand.
However, I ask everyone who reads these words to consider the matter carefully and prayerfully. In 1994, I had the honor of representing Mother Teresa of Calcutta as her Counsel of Record on an amicus curiae brief to the Supreme Court of the United States asking the justices to reverse Roe v. Wade. In connection with that project, I learned that this was not Mother's first intervention in American courts. On a number of occasions, she had asked judges to refrain from imposing the death penalty on a defendant convicted in a capital murder case. She did not question the defendants' guilt, or even the justice of the death penalty. Her plea was always a plea for mercy.
By asking for mercy for Kermit Gosnell, we defenders of human life in all stages and conditions have the opportunity to follow the example of the greatest pro-life witness of the 20th century.
That is the question Professor Dan Crane asks in a new post over at the Center for Law and Religion Forum. He offers three interesting responses (and by interesting, I mean interesting). Here's a bit from the first:
First, Jesus would likely have faulted both sides of the debate for an excessively materialist perspective. On one side, we hear that marriage is about procreation and child rearing. On the other, that it’s about love and companionship. But Jesus did not understand marriage primarily in terms of its temporal or material effects. For Jesus, marriage was a spiritual representation of divine relationships. According to Jesus, God created man and woman—male and female—in the image of God, mirroring the unity and diversity within the Godhead. Jesus and later apostolic writers referred to Jesus as a bridegroom and the Church as his bride. Jesus explained that in Heaven people would not be married to one another, since they would be in perfect union with God. Thus, the ultimate good of marriage was not that it served immediate material needs but that it celebrated the eternal nature of God.
This understanding of marriage has precious little purchase in the contemporary, hyper-materialist world. Even those who recognize marriage’s “spiritual” component usually mean that psychosomatically—marriage feeds long-term emotional and pyschological needs. We’ve lost any sense of human institutions as good because of their correspondence to divinity. Across the ideological spectrum, we’ve given in to Richard Posner’s wish of “unmasking and challenging the Platonic, traditionalist, and theological vestiges in Enlightenment thinking.” It’s safe to say that Jesus would have had a different take.
In chapter 6 of The Tragedy of Religious Freedom, I discuss Cass Sunstein's work on judicial
minimalism and focus on a particular variation--Burkean minimalism. The method that I adopt for resolution of various religious liberty disputes draws on Burkean minimalism in several respects, but also departs from it in significant ways. My differences with Professor Sunstein are summed up in the aphorism, "Less Burkeanism, More Burke," and the discussion in that chapter considers the ways in which Sunstein's views about minimalism--which are pragmatically grounded--differ from my own--which are grounded in the reality of the complexity of political affairs, the conflict of human aspirations, and the irreducibility of human interests to any overarching theory. The method that I describe and defend is motivated, in part, by these complications.
Notwithstanding my admiration for judicial minimalism--and, indeed, for minimalism as a general
guiding ethic of political life--I am not the first to suppose that Sunstein's attachment to it was always less than entirely secure. It was, as he himself acknowledged, strategic and instrumental. This is why I am somewhat disappointed, but not very surprised, to see that Sunstein has recently published Simpler: The Future of Government. Of course, the book is not about the judiciary; it describes Sunstein's time at the head of OIRA. Its overall claims seem to rest on the assertion that government has become simpler during the last four years, that it will or ought to become simpler still, and that this is a wonderful thing. I have not read the book, and will of course defer to Professor Sunstein on the question whether the government has issued fewer regulations as a numerical matter. Government during the last four years does not seem so very much simpler to me than it was before, but I'm prepared to be persuaded otherwise. But apart from these descriptive issues, I have the distinct feeling that I will resist in particularly strong terms the normative claim--which seems to be made in the book--that the simplification of government is for the best. Indeed, it seems to me that a true minimalist would press just the opposite point: we are complex, and we need a government that can account for, and accommodate, that complexity. We don't need simpler; we need more complicated.
