The question whether what our friend Michael Perry calls the "morality of human rights" requires a theistic foundation -- which is, of course, an entirely different question from the one whether one needs to be a theist to embrace or act in accord with that morality (one does not) -- has often been discussed here at Mirror of Justice. Michael Perry has written about the issue, of course, as have others, including Nicholas Wolterstorff. In my review of the latter's relatively recent book, Justice, I wrote:
What makes it the case that a human being is the kind of thing that can be wronged in the way that justice forbids? It might be tempting to join thinkers like Richard Rorty in shrugging off the “outmoded” task of “rights foundationalism” and rely instead for the preservation of our “moral subculture of rights” on “sad and sentimental stories” that evoke “sympathy for the feelings” of others.
For Wolterstorff, this will not do; an “account of human dignity adequate for grounding rights” is required. He proposes, however, that no secular account is possible. A theistic account, however, is available: In a nutshell, the “relational property of being loved by God”—a property that has nothing to do with human capacities (which are not, after all, shared or distributed equally)—is what gives a human being great worth.
The conclusion and the heart of the argument will—as my colleague Paul Weithman has suggested—be familiar to all parents and children who have read The Velveteen Rabbit: “Natural human rights,” he concludes, “inhere in the worth bestowed on human beings by that love” and “are what respect for that worth requires.”
Finally, the “unsettling question”: If belief in what is required to ground human rights is destined to wane, then what? Our “moral subculture of rights” might well be pervasive, but it is also “frail.” If “secularization” is the expected course of things, then it is not clear how confident we can be in the future for justice. “This is,” Wolterstorff admits, a “melancholy conclusion, . . . if one believes the secularization thesis. . . . I do not believe the thesis.”
In this recent piece, "The Confidence of Jerry Coyne", Ross Douthat addresses the question, too. Here is a taste:
The point that critics make against eliminative-materialism, which Coyne seems not to grasp, is that it makes a kind of hard-and-fast moral realism logically impossible — because if the only real thing is matter in motion, and the only legitimate method of discernment the scientific method, you’ll never get to an absolute “thou shalt not murder” (or “thou shalt risk your life on behalf of your Jewish neighbor”) now matter how cleverly you think and argue. This is not necessarily a theistic objection — it’s one of the issues raised in Thomas Nagel’s controversy-generating book, which explicitly keeps religious ideas at arm’s length — and for that matter there are forms of theism that need not imply moral realism, and Euthyphro-style objections to the union of the two. But I don’t think those of us who still embrace the traditional Western idea of God are crazy to suggest that our cosmology has at least a surface compatibility with moral realism that the materialist conception of the universe’s (nonexistent) purposes seems to lack.
So if you’re going to defend both materialism and modern rights-based liberalism, you have to actually address this point head-on.
This new book, "The Great Debate: Edmund Burke, Thomas Paine, and the Birth of Right and Left," by EPPC's Yuval Levin, looks very interesting (and timely). Ramesh Ponnuru reviews it here. A bit:
Yet Levin also notes that conservatives have often sounded much like Paine themselves. President Ronald Reagan explicitly quoted Paine’s wildly unconservative line that “we have it in our power to begin the world anew.” Levin suggests that the practice of conservatism has been more Burkean than its arguments. The arguments have, however, weakened the practice. To use an example Levin does not, President George W. Bush’s confidence that Iraq was fertile soil for republican government owed more to Paine than to Burke. More generally, conservatives have sometimes been attracted to the apparent simplicity of principle rather than paying attention to the details of policy. . . .
On Wednesday of this week, January 8, 2014, we will mark the fifth anniversary of the death of Fr. Richard John Neuhaus. At the time of his death, many observed that he was irreplaceable. Certainly no one has replaced him. He was the great Christian public intellectual of the second half of the Twentieth Century. In a published tribute to him shortly after his death, I noted that he had begun his career as a liberal and was lionized by the liberal movement. But then something happened:
Abortion.
It became something it had never been before, namely, a contentious issue in American culture and politics. Neuhaus opposed abortion for the same reasons he had fought for civil rights and against the Vietnam War. At the root of his thinking was the conviction that human beings, as creatures fashioned in the image and likeness of God, possess a profound, inherent, and equal dignity. This dignity must be respected by all and protected by law. That, so far as Neuhaus was concerned, was not only a biblical mandate but also the bedrock principle of the American constitutional order. Respect for the dignity of human beings meant, among other things, not subjecting them to a system of racial oppression; not wasting their lives in futile wars; not slaughtering them in the womb.
It is important to remember that in those days it was not yet clear whether support for “abortion rights” would be a litmus test for standing as a “liberal.” After all, the early movement for abortion included many conservatives, such as James J. Kilpatrick, who viewed abortion not only as a solution for the private difficulties of a “girl in trouble,” but also as a way of dealing with the public problem of impoverished (and often unmarried) women giving birth to children who would increase welfare costs to taxpayers.
At the same time, more than a few notable liberals were outspokenly pro-life. In the early 1970s, Massachusetts Senator Edward M. Kennedy, for example, replied to constituents’ inquiries about his position on abortion by saying that it was a form of “violence” incompatible with his vision of an America generous enough to care for and protect all its children, born and unborn. Some of the most eloquent and passionate pro-life speeches of the time were given by the Rev. Jesse Jackson. In condemning abortion, Jackson never failed to note that he himself was born to an unwed mother who would likely have been tempted to abort him had abortion been legal and easily available at the time.
The liberal argument against abortion was straightforward and powerful. “We liberals believe in the inherent and equal dignity of every member of the human family. We believe that the role of government is to protect all members of the community against brutality and oppression, especially the weakest and most vulnerable. We do not believe in solving personal or social problems by means of violence. We seek a fairer, nobler, more humane way. The personal and social problems created by unwanted pregnancy should not be solved by offering women the ‘choice’ of destroying their children in utero; rather, as a society we should reach out in love and compassion to mother and child alike.”
So it was that Pastor Neuhaus and many like him saw no contradiction between their commitment to liberalism and their devotion to the pro-life cause. On the contrary, they understood their pro-life convictions to be part and parcel of what it meant to be a liberal. They were “for the little guy”—and the unborn child was “the littlest guy of all.”
In the period from 1972 to 1980, however, the liberal movement steadily embraced the cause of abortion—on demand, at any point in gestation, funded with taxpayer dollars. The conservative movement went in precisely the opposite direction. In 1973, the Supreme Court handed down its decisions in Roe v. Wade and its companion case of Doe v. Bolton, effectively wiping out state laws forbidding the killing of unborn children by abortion. Ironically, several of the justices responsible for these decisions were regarded (and regarded themselves) as conservatives. Evidently, they were conservatives in the mold of James J. Kilpatrick. But the larger conservative movement did not accept Roe and Doe. The movement rejected these decisions for two reasons: first, they represented an unconstitutional (and, indeed, anti-constitutional) usurpation by the judiciary of the powers placed or left by the Constitution in the hands of legislatures; second, they constituted a grave injustice against abortion’s tiny victims. By contrast, the liberal movement circled the wagons around Roe and Doe, celebrating these decisions as victories for women’s rights and individual liberties.
By 1980, when Ronald Reagan (who as governor of California in the 1960s had signed an abortion liberalization bill) sought the presidency as a staunchly pro-life conservative and Edward Kennedy, having switched sides on abortion, challenged the wishy-washy President Jimmy Carter in the Democratic primaries as a doctrinaire “abortion rights” liberal, things had pretty much sorted themselves out. “Pro-choice” conservatives were gradually becoming rarer, and “pro-life” liberals were nearly an endangered species. (Jesse Jackson was still hanging on to his pro-life convictions, but he too yielded to the liberal movement’s pro-abortion orthodoxy when he decided to seek the Democratic nomination for president in 1984.)
Richard Neuhaus, however, stood by his convictions and refused to yield. If the pro-life position is to be counted as the “conservative” position on the question of abortion, then fidelity to the cause of the unborn is how Neuhaus became the conservative that he was. He didn’t change. His principles didn’t change. He believed in 1984 and beyond what he had believed in 1974 and 1964. For him, justice, love, and compassion all pointed to protecting every member of the human family, however young, small, and dependent. What society owed to pregnant women in need was not the ghoulish compassion of the abortionist’s knife, but the love, moral and spiritual support, and practical assistance they needed to take care of themselves and their children. As Fr. Neuhaus’s great friend, and fellow Lutheran convert to Catholicism, Fr. Leonard Klein, put it in a beautiful tribute, “Richard’s politics changed precisely because his principles did not change.”
The complete text of the tribute (published at First Things under the title "He Threw It All Away") is available here:
Prof. Kevin Lee -- whom MOJ readers will certainly remember from his contributions to this blog -- is now blogging here, at "Occasional Writing." His most recent post is on the Windsor case and related matters. Check it out!
My friend and former student, Carissa Mulder, has a nice piece up at Public Discourse, "Sex, Drugs, and Religious Liberty," which surfaces a number of the "big picture" issues that sit just beneath our debates about the HHS mandate and so on. A bit:
Why . . . does it seem that a growing number of Americans view religious liberty with suspicion, if not outright hostility? The problem is that many Americans are offended by the existence of an opposing view. The fact that someone, somewhere, dares to voice disapproval of their sexual behavior is, it now seems, offensive in and of itself. Studied non-judgmentalism is one of the hallmarks of contemporary American culture, with departures viewed as gauche at least or, more commonly, as an illegitimate attack on the sacrosanct individual. If you doubt this, please try telling a group of largely secular thirty-somethings that you believe cohabitation is wrong and see what response you receive. . . .
Apparently, the organization formerly known as Protestants and Other Americans United for Separation of Church and State has filed a motion seeking to intervene in "Notre Dame Lawsuit Challenging Women's Access to Birth Control." Of course, no such lawsuit exists. The lawsuit to which the organization founded by the paranoid bigot, Paul Blanshard, refers is Notre Dame's lawsuit invoking the protections of the Religious Freedom Restoration Act and seeking an exemption from a requirement that it (or, the TPA administering its insurance plan) provide employees and students with coverage for non-medically-indicated contraception and sterilization. But, in any event . . .
It is entirely understandable that AU would try to intervene in Notre Dame's case, if only because it makes for good direct-mail content and it will appeal to AU's neo-Blanshardian donors and supporters. That said: I understand (though I do not agree with) the claim that, because Notre Dame is a large employer in the area, its right to refuse to provide coverage for contraceptives (in cases where a physician has not indicated that the contraceptives are medically indicated) to employees who do not embrace the Catholic Church’s teachings on sexual morality and abortion is limited. That is, Notre Dame’s role and place in the market limits its right to say to employees “this is who we are, and if you want to work for us, you should expect that who we are will be relevant to the terms of our arrangement with you.”
With respect to students, though, it is harder for me to see why Notre Dame should not be able to say to prospective students (as Notre Dame does), “This is who we are. If you come here – and you are welcome to, but you don’t have to – you should know that our character, mission, aspirations, and values will shape the terms of our arrangement with you.” Is it the view of AU, or of others, that the Establishment Clause (or anything else) prevents the government from exempting a Catholic (or other mission-oriented) educational institution from an otherwise general rule in order to allow the institution to say (something like) this to students and the broader world – again, assuming that students who get into Notre Dame (a) have plenty of options and (b) know full well that Notre Dame aspires to a meaningfully Catholic character?
Some Catholic (and other) liberals, to their delight, and some Catholic (and other) conservatives, to their horror, seem to believe that Pope Francis is weakening or downplaying the teaching of the Catholic Church on abortion and the imperative to protect unborn children. But the Pope is firmly and, it seems to me, unambiguously advancing a teaching fully in line with his predecessors and the historic witness of the Church. For example, in August he stated that "human life must always be defended from its beginning in the womb." What is it that people don't understand about "always" and "from its beginning"? Yes, there are also other important issues, and the Pope reminds us that these cannot be neglected. But Benedict XVI and John Paul II by their words and actions taught the same thing. It is no derogation of the pro-life imperative to recognize the need to speak of and work for the entire range of human values in the cultural, economic, political, and religious domains--fighting against poverty, exploitation, human degradation, corruption, and oppression, and for the dignity of the human person. And recognizing the need to speak and work in these areas does not exempt any of us from the obligation always to defend human life "from its beginning in the womb."
Until Justice Sotomayor granted emergency injunctive relief to the Little Sisters of the Poor on New Year’s Eve, very few in the media paid attention to their case. After Justice Sotomayor acted, however, regular courtwatchers and a lot of other media began to tune in. The speed of the transformation in attention has been astounding. Unfortunately, some commentary on the case has been based on an incomplete understanding of the regulations at issue and of the litigation landscape in these cases more generally. (Perhaps it should go without saying, but sources that rely on the Government’s response without discussing either the Little Sisters’ emergency application or the Little Sisters’ reply are particularly suspect).
Probably the biggest misconception about the case is that it is much ado about nothing, because the Little Sisters and Christian Brothers can simply exempt themselves from the Mandate. In the government’s words, “with the stroke of their own pen, [the Little Sisters and Christian Brothers] can secure for themselves the relief they seek from this Court—an exemption from the requirements of the contraceptive-coverage provision—and the employer-applicants’ employees (and their family members) will not receive contraceptive coverage through the plan’s third-party administrator either.”
The government's insistence that the Little Sisters just sign the form misses the point. Signing the form is part of the problem, not a solution. That is why the New Year's Eve injunction was necessary to protect the Little Sisters' religious exercise. In the words of the Little Sisters' reply quoted by Howard Bashman's post linking to it, the temporary injunction "saved Mother Provincial Loraine Marie Maguire from the choice of violating her faith by executing the government's required form, or exposing the Little Sisters' ministry to decimation by IRS penalties."
The government's position rests on an incomplete legal characterization of the form--EBSA Form 700--that the government wants to force the Little Sisters to sign. As Lyle Denniston has observed in a recent post at SCOTUSBlog, understanding this form is necessary to understanding the dispute.
The government's incomplete characterization of the form is that it is a simple opt-out form that does nothing but signal that the organization is claiming an exemption. Under law, the form does much more than that and something different than triggering an exemption. At minimum, the form is also an authorization for the Little Sisters’ third-party administrator (or TPA) to provide the coverage that the Little Sisters religiously object to providing themselves and for the TPA to be paid by the government for providing this coverage. Beyond an authorization, the form is also a directive that triggers the imposition of legal obligations, but the way it does that is a bit detailed for this post. The authorization point is easier to see because one does not need to scrutinize the Federal Register to find the obligation-imposing regulations that the form incorporates. Under questioning from a federal judge in a similar case, Reaching Souls, Inc. v. Sebelius, the government has already conceded that the form is an authorization for the TPA to provide coverage and receive reimbursement. The government's lawyer stated: "I will concede that the TPA is eligible--once--if they receive the certification, they are eligible for reimbursement. They would not otherwise be eligible." (See p. 96 of the hearing transcript in Reaching Souls, Inc. v. Sebelius.) And the fact that the form is an authorization for the coverage is exactly why Judge Friot (W.D. Okla.) describes it as a "permission slip" in Southern Nazarene University v. Sebelius.
In a blog post that discusses the government’s response to the Little Sisters' application (but not the Little Sisters’ reply), Michael Dorf has argued that the government’s arguments about the form are “devastating.” If that is so, one wonders why every other pending case involving a church plan similar to the Little Sisters' has thus far resulted in a lower-court injunction (some preliminary, some permanent). By way of contrast with Professor Dorf’s expressed understanding (following the government’s lead), consider the conclusion of Judge Rosenthal (S.D. Tex.) in East Texas Baptist University v. Sebelius:
The act of self-certification does more than simply state the organization’s religious objection to covering or paying for its employees to get emergency contraception. The self-certification act designates the organization’s TPA [that is, third-party administrator] as the TPA for contraception coverage. The act tells the TPA or issuer that it must provide the organization’s employees coverage that gives those employees free access to emergency contractive devices and products. That act tells the TPA or issuer that it must notify the employees of that benefit. ... But the self-certification form requires the organizations to do much more than simply protest or object. The purpose of the form is to enable the provision of the very contraceptive services to the organization’s employees that the organization finds abhorrent. The form designates the organization’s chosen TPA as the administrator for such benefits and requires the organization’s chosen issuer or TPA to pay for the religiously offensive contraceptive services. The purpose and effect of the form is to accomplish what the organization finds religiously forbidden and protests.
I suggest that a careful and close reading of the regulations and the form itself (supplemented if one wishes by consideration of Reaching Souls transcript) will show Judge Rosenthal’s understanding of the scheme to be more reliable than the government’s (and Professor Dorf’s).
One of the great social-justice and civil-rights causes of our time is enhancing the ability of parents to access high-quality schools, including Catholic and other faith-based schools. (More here and here.) And, what better day to reflect on, and re-commit ourselves to, this cause than the Feast of St. Elizabeth Ann Seton! (If you are still in New York for the AALS, you can go check out her house.)
One last post to urge you to register for the Lumen Christi conference tomorrow in Manhattan, to be held at the University Club from 12:00-5:00, and which will honor the thought of the late Jean Bethke Elshtain and consider journalistic perspectives on law and religion. I hope to see you there for fellowship and discussion on a proper winter's day in the city.
