I should like to thank Bob Hockett for his bringing to our attention the WashingtonPost article published earlier today on the Albany Diocese’s needle exchange program. In short, the thrust of the argument appears to be: it is a choice between the lesser of two evils. Is it really? Is there any guarantee that once the addict leaves the distribution center or centers administered by the Diocese he or she will use it once and then return it prior to the time the next “fix” is required? It is apparent that there will be no supervision by Safe Point in how the new needle is used and for how long by the addict of illegal drugs. Moreover, there appears to be no recognition that at some point, all hypodermic syringes are new—even the used one being returned for an exchange was new at one time. There is some agreement with the program as Susan’s comment to Bob’s posting suggests: she states that the Diocese has made the correct decision. I cannot endorse this view; furthermore, I am troubled that some in the Diocese believe that the United States Conference of Catholic Bishops ought to now reconsider its position against needle exchanges. Since reason is an underlying principle of the law and, therefore, legal theory—including that which employs the label Catholic—, let us test the various propositions put forth in the Post article with reason. Jonathan’s comments to Rob’s posting help us begin this task.
First of all, let us consider the contention that, while illegal drug use is bad, the spread of deadly disease is worse. Let us test the soundness of this proposition. I begin with the distinction that this statement makes that blood-borne diseases are deemed a greater evil than drug addiction and the addictions essential surrounding issues. It is false. Illegal drug use is no lesser an evil because without appropriate medical treatment, the spiral of the addict will progress downward until the day that the addict’s body can no longer sustain the chemical abuse, and he or she dies from an overdose or other complications. There is no good ending to untreated drug abuse with serious and illegal drugs that require injection by hypodermic syringes. The addict is constantly hanging over a pit of destruction started by himself or herself and then sustained, as Jonathan points out, by drug lords who have little interest in anything but more profit. By providing a needle exchange program, any institution is at a minimum turning a blind eye to the profit driven motivations that prey on human life without mercy and the destruction of life that this chemical dependency generates. Are there alternatives? Of course there are. Treatment programs, job counseling programs, and other projects that could be substituted for needle exchange programs help the addict far more than assistance that will only sustain the addict’s dependency but do nothing about it. By providing a needle exchange program, the addict’s life remains over the pit of destruction without any hope of rescue other than trying to reduce infections from blood-borne diseases. But as I have already mentioned, there is no guarantee how the new needle is used once the addict departs with it. How “public health authorities” referred to by the Post article can assert that needle exchange programs can “even lead drug abusers to treatment and recovery” makes no appeal based on reason. If the destructive habit is being sustained by “well intentioned programs,” how can the addict turn to the path of treatment and recovery? The craving that is an inevitable part of drug dependency will not vanish with new needles. I fail to see the logic in the arguments offered by the proponents of needle exchange as presented and only recognize an unsupportable claim. The addict remains enslaved to a self-destructive habit which robs him or her of human dignity and life. There is no charity or solidarity or mercy extended to this victim of chemical dependency, only abandonment is offered so that the dependency increases while the drug lords grow richer. Somehow this fact which ought to be inescapable escapes those who support needle exchange programs.
The Diocese then asserts that the Safe Point program “is based upon the church’s [sic] standard moral principles.” In theory, it may be possible to argue in the proper contexts “double effect” or “choosing the lesser of two evils” or, for some moralists, “proportionalism” or “consequentialism.” But these justifications do not apply here. [The latter two, i.e., proportionalism and consequentialism, are plagued with their own problems which I won’t go into today since they have not been raised by any of the moralists quoted in the Post article.] Why? I suggest these elements of “the church’s [sic] standard moral principles” cannot overlook the spectrum of the constitutive elements of both evils, i.e., drug addiction and infectious disease that is generated by drug abuse. In the final analysis, they are both evil in their own right, and it would be unsound to suggest that one is less problematic than the other. While they may intersect the life of the same person, one is not disproportionate to the other.
In the preparation of its article, the Post consulted with a variety of individuals in demonstrating the spectrum of views that favor and that object to needle exchange programs administered by the Church’s corporal works of mercy. I begin with the remarks attributed to Dr Edward Peters, who is both a canonist and a civil law lawyer. He has addressed the Albany Diocese exchange program at his own website, and I believe his in depth reflections need to be studied carefully because he is on to something vital regarding these issues and the debate surrounding them.
The Post then turns to three priests, yes, all are Jesuits, and yes, I am familiar with them and their work. My comments in no way reflect a lack of fraternal concern of or respect for them; however, on the issue of supporting needle exchange programs by relying on their versions of Catholic moral principles, I must state my disagreement and explain why. Unfortunately for Fr. Bretzke, a professor of moral theology at Boston College, the Post merely states that by relying on the “lesser evil” argument, the Diocese of Albany is relying, in part, on a Thomistic principle. But as I have stated earlier, the issues involved here are much more involved than giving “safe” needles versus risking infection from blood-borne diseases and assuming that one evil is lesser than the other. Let us understand the distinction clearly: the rational agent must conclude that he or she is not simply giving an addict a clean needle so that the addict will be free from a contaminated needle. As already stated, there is no guarantee that the new needle will be used only once and only by the addict to whom it is given. No one, including the addict, can predict if this needle will not be used again by the addict or anyone else. The hope that this will not happen is misplaced. In addition, the purported “lesser evil” is a complex one with many tentacles that ensnare the unwary and the unthinking. There is no promise of treatment and cure with a needle exchange program without something more being offered to assist the addict; the inexorable potential is that the chemical dependency without further intervention will therefore be sustained indefinitely. The other thing that will be sustained is the boldness of the dealers whose desire it is to keep the addict addicted. And with their business uninterrupted, will they not look for new markets to sell their poison? These are surely elements of the “Safe Point” program that lurk in the side wings but have not been addressed by the needle exchange proponents. Fr. Bretzke further states if: “you cannot reasonably expect a person to avoid the moral evil itself [i.e., illegal drug use], you can counsel them or mitigate the potential damage of their action and can even help them in doing that.” If the concern he expresses is only mitigation through needle exchange, his conclusion is wrong. If the needle exchange program were substituted with counseling and medical treatment that assists the addict in overcoming the chemical dependency, then yes, Fr. Bretzke would be on the correct track because the addict would then be given assistance to overcome the moral evil of illegal drug dependency.
The aspiration that “Safe Point” will decrease or eliminate infections of blood-borne diseases by the addict who exchanges the needle or by other addicts is wishful thinking but little else. Blood-borne diseases of any kind are an enormous problem, and deaths caused by such diseases are avoidable. Dependency on illegal, potent drugs is also an enormous problem, and it, too, causes deaths. So, is death by drug dependency or death by blood-borne diseases any different? No. But can we as a society and Church that cares about people through our exercise of Christian charity avoid both? To borrow from a high-level public official, “yes, we can!” And we can do so if we recognize that both are evils that can be avoided and, at the same time, acknowledge that one is not the lesser evil than the other.
Rev. Fuller, a well-known Boston physician, is quoted as saying, “If we know programs are scientifically validated to save lives, then condemning them can be more scandalous than the possibility of being seen to condone drug use.” I suggest that this “if” is a pretty big one. Let us be clear about the distinction he makes: does the program that is “scientifically validated” ensure that no needle from a needle exchange program is ever used more than once? He does not mention this. I wonder if there is an assumption that no needle is used more than once. It may be that the needle is used by the exchanging addict only once, but does the “scientifically validated” program take stock of the possibility, perhaps probability, that someone else may use the needle, since it is “almost new,” before it is exchanged? I wonder. Fr. Fuller does speak about a possibility elsewhere, but it is only in the context that there is a possibility that needle exchange programs may condone the use of drug use. No, the scandal is more than “possibly condoning drug use.” The scandal is that it, at a minimum, constitutes material cooperation with a distinct, but not lesser evil. I am prepared, along with Dr. Peters, to demonstrate that a needle exchange program is, in fact, formal cooperation with evil that can be and must be avoided. A needle exchange program’s officials cannot overlook the fact that drug addicts are destroying their lives while drug dealers and distributors and manufacturers of controlled substances increase their profits and are then encouraged to look for new markets. To provide needles in an exchange program and overlook these undeniable realities of drug addiction is a scandal of enormous magnitude that is independent of scandals of denying addicts clean needles in the hope of avoiding life-threatening blood-borne illnesses.
The Post also quotes Fr. James Keenan, also another professor of moral theology at Boston College. The article mentions that he “successfully pushed...a nondenominational association of scholars, to pass a resolution in support of needle-exchange programs.” I wonder what the resolution states and the reasoning used to justify it? Did those voting in favor of it consider the points I have addressed demonstrating the problems inherent in the justifications given for the Albany Diocese’s program? I agree with Fr. Keenan that the Church and her corporal works of mercy must be about love of neighbor, the common good, human dignity, and responding to human suffering. But, as I have demonstrated, mercy, love of neighbor, the common good, human dignity, and responding to human suffering are not well served when problems are intensified rather than remedied for those addicts whom the Church is attempting to help. I must unfortunately disagree with Fr. Keenan’s assertion that the Albany Catholic Charities “just gave us the answer.” They gave no answer but have, I believe, made a serious problem worse for the intravenous illegal drug user.
Let me conclude this lengthy posting with a reference to Dr. Germaine Grisez’s discussion in the Post article. There is far more involved with needle exchanges that just needle exchanges. I hope to have demonstrated that. Dr. Grisez states that the Church has a care-taker role in the betterment of the human person and should not be involved in needle exchange programs. By way of illustrating my point, let us say that the Albany Diocese were not involved in a needle exchange program but a project designed to help alcoholics. If the Diocese’s Catholic Charities offered counseling and medical treatment for the alcoholics, I think most would agree that this would be a meritorious project supported by the Church’s moral teachings and social doctrine. But what if, instead, the Diocese took a different tack and set up cocktail lounges that catered to alcoholics and operated under the project name “Safe Pint.” What would be the reaction then? You would be correct in labeling this project indefensible. So, too, is the needle exchange program.
“Safe Point” is not something to celebrate. It is not something to promote. It is not something to rationalize as the lesser of two evils. It is, ultimately, something to lament because of what it is and what it does to human life. Complicating the lament that makes it a tragedy is the fact that the Diocese of Albany, through its Catholic Charities, had and still has alternatives that do not require the cooperation—formal or material—with drug dependency. Sadly, and for the time being, the Diocese has not chosen the better and moral path. Let us pray that it will be corrected, and soon because human life, human dignity, the common good, and alleviating human suffering remain at risk.
Thank you, Kevin, for your important posting on the North Carolina bishops’ request for assistance concerning the campaign to arrest the insertion into high school civics and economics textbooks that the Roe decision is one illustration of how the Supreme Court has upheld rights against “oppressive government.” I realize that this is the bishops’ phrase, but I must also point out an important question that their solicitation for assistance raises: what kind of citizens do the authors of the amendment to the textbooks think they will be educating? Another question follows: must government regulation of all citizens’ conduct be viewed as “oppressive”? Might government conduct be designed in some cases to preserve the common good by ensuring that the liberty of its citizens is ordered?
I shall offer a response to the latter questions first. If a government, state or Federal, makes it a crime to kill, maim, or injure another, it intrudes into the liberty of the feasor of these acts, but its intrusion is not oppressive. The criminal law and their attending sanctions restrict liberty so that liberty is and remains ordered and does not harm the public, and therefore, the common good. I submit that laws regulating abortion do not constitute oppressive government action. My argument, I suggest, is reinforced by the fact that the “privacy” claim that undergirds Roe has since been abandoned by abortion advocates and courts and has been substituted with alternative claims such as “equality.” Do the textbook revisers understand this? Moreover, are they willing to concede the fact that the house-of-cards foundation upon which Roe is built has already collapsed? This would be important to the education of the students who will be reading these textbooks.
This brings me to the first question I have posed: what kind of citizens do the authors want to educate? The young men and boys reading the text will be further encouraged into irresponsible acts when temptation comes their way knowing, falsely, that the “oppressive government” cannot tell them would to do in the physical expressions of their sexuality. And, young women and girls will not necessarily be informed that their protection from “oppressive government” gives them a license to destroy another human. Furthermore, if both of these constituencies of students are led to believe that there exists an unqualified “right to abortion” and protection from “oppressive government,” and all of them exercise this “right,” will there be any future citizens in North Carolina attending schools in thirty years? In fifty years? In a hundred years? And, if there will be no future citizens in these schools, who will read these textbooks then?
Thanks to Rob for bringing to our attention his recent and engaging paper entitled “Whom Should A Catholic Law School Honor?” [Rob’s post here] I am responding to his welcome for comment and input.
At the outset, I find myself in agreement with Rob on many of his thoughtful points. Thus, I do not want my following remarks to be seen simply as critique. As I have said, I agree with much of what he has to say in this characteristically thoughtful presentation. In particular, his analysis of Fr. John I. Jenkins’s distinction between Catholic and non-Catholic speakers is on target. Rob got it right, but Fr. Jenkins did not. It would be nonsensical to say that Catholic institutions are prohibited from honoring or giving platforms to Catholics who act in defiance of the Church’s teachings, including its moral teachings but are allowed to honor or give platforms to non-Catholics who defy Her teachings. An example of this is Larry Flynt’s invitation to speak at Georgetown University several years ago. The fact that the Bishops’ Statement properly noted and quoted by Rob was issued after the Flynt fiasco does not excuse Georgetown from doing the incomprehensible, i.e., inviting Flynt and awarding him a platform to do what most thoughtful people knew he would do—engage in coarse ridicule and display open contempt.
At the beginning of his paper Rob also correctly brings to our attention the significance of “broader debates about the institutional identity and fidelity” that pertain to the question: whom should any Catholic institution—including law schools—honor? I, for one, think that the identity, and therefore the fidelity, of the institution is an unavoidable issue that must be addressed and answered prior to answering: whom can this institution honor? Therefore, I don’t consider it promising to answer Rob’s inviting question without first having established what do “Catholic identity and fidelity” mean, including the context of a law school that uses the term “Catholic” to identify itself.
Books can be and have been written in response to the issues surrounding Catholic fidelity and identity. So, my humble posting cannot get into too many important details about fidelity and identity. But this can be said about Catholic identity and fidelity. Must everyone who is associated with the institution using the modifier “Catholic” be a Catholic—one who professes the faith of the Creed, who follows the Church’s teachings, who acknowledges Peter, who knows that he or she is a sinner but nonetheless strives to live a holy and virtuous life? No. Must the institution that relies on the modifier Catholic and most of those who are in some fashion or other associated with such an institution acknowledge that that there is a profession of faith inextricably connected to the institution’s raison d’être, that there is a deposit of faith (the Church’s teachings) to which adherence is expected, that Peter exists, and that there is the need to strive for holiness in spite of the temptation of sin? Yes.
Now here’s the tricky but vital matter: does the institution which calls itself Catholic profess fidelity to the Creed; does it acknowledge and honor—not ridicule or critique—Peter; does it adhere to rather than dissent from the Church’s teachings; and, does it encourage its members to strive for holiness rather than succumb to the temptations of this world that are so often promoted by a surrounding culture, including that endorsed, promoted, or condoned by a university and its law school? If the institution, at best, pays lip service to, i.e., uses the modifier “Catholic,” but does not embrace the Creed, the Church’s teachings, Peter, or the call to holiness, it is really Catholic in spite of its claim. (Clara Peller of happy memory asked a parallel question about the competitors of the Wendy’s restaurant chain: where’s the beef? In Thomistic fashion, I ask: but where’s the Catholic?)
To borrow from an old line, would there be sufficient evidence to convict the institution claiming to be Catholic to be held so? Until this issue is addressed upfront, addressing the question “Whom Should A Catholic Law School Honor?” is and remains an interesting but theoretical pursuit.
But if we have sufficient understanding of the fundamental question dealing with both fidelity and identity, then I shall proceed to express some alternative thoughts to those presented by Rob’s reflective paper. I agree with him that ascertaining what are “proportionate reasons” for siding with someone who may be a potential candidate to receive an academic honor or platform is a challenging question. But even challenging questions cannot escape good-faith efforts that seek answers.
Let me flesh out my approach to seeking and providing an answer to this last issue. In doing so I use two of the illustrations presented by Rob, i.e., Notre Dame’s conferral of an honorary degree on President Obama and the platform from which to speak; and, Xavier’s conferral of an honorary degree on Ms. Donna Brazile and the platform from which to speak. Even if honorary degrees were not conferred, platforms to which there would be no response—and none is expected in the context of commencement speakers—were given. To be given such a platform is, in fact, an honor whether there is an honoris causa degree given. There is a subliminal message that—even without being awarded a degree honoris causa, a medal, a citation, or some other similar recognition—an honor is bestowed when the commencement podium is given to the commencement speaker. Might Notre Dame and Xavier have invited the President or Ms. Brazile to participate in a colloquium where those faithful to the Creed, Peter, the Church’s teachings, and the call to holiness are also invited participants? Of course, but would they come? Presidents typically don’t do this (they recognize the wisdom of Teddy Roosevelt’s “bully pulpit” analogy), but this would not have prevented Notre Dame from extending the invitation to the President to join in a colloquium or symposium discussion where the Church and all that she stands for would not be marginalized or forgotten. News commentators, campaign directors, and Georgetown adjunct-professors like Ms. Brazile often do receive and accept such invitations as I have just described. These are contexts vital to Rob’s contextual discussion that he presents in his paper that were not mentioned.
Here is what I contend is my fundamental disagreement with Rob. If I have misunderstood or misconstrued him, I beg his correction. He states:
A Catholic law school should never honor a person because of their actions that defy the Church’s teachings. A Catholic law school may honor a person despite their actions that defy the Church’s teachings, but only if the circumstances are such that the honor is unlikely to cause observers to question the school’s commitment to the truth of the Church’s teachings.”
Rob makes a good distinction by using “because” and “despite.” But the inquiry about context and confusion cannot rest here. Rob suggests that there might be circumstances in which observers will not be confused about the institution’s “commitment to the truth of the Church’s teachings.” I disagree. The invitee is being honored in some way—be it with an honorary degree, a podium, both, or something else constitutive of an honor. A pretext may be offered in publicity materials such as “We know our honored speaker disagrees with us as Catholics on important issues, but we agree on others.” It might be said that a certain chancellor of Germany could be commended for his plan to extract his country and her people from economic disaster; but, should he be honored knowing what else he has done, to what else he was committed? Context is not partial, it must be complete in assessing the suitability of candidates who are to be honored by an institution that claims fidelity to the modifier “Catholic.” Rob correctly brings up the important matter of the common good, an essential element of the Church’s teachings. But let us not forget that the Church has defined the meaning of this term, and Her definition is not forgetful of Her teachings. She does not and cannot rely on the explication given to this important phrase (and the ideas it represents) offered by those who disagree with the Church teachings. They may say they are for the common good, but they do not share in the meaning held and taught by the Church. It is an expansive topic that covers all vital interests, not just some.
There are ways of extending invitations, as I have mentioned, so that persons who cannot be honored can still be present and participate in a robust exchange of ideas at an institution that claims to be Catholic. This point is, I believe, concurrent with Rob’s statement about identity flourishing “more through proactive witness than through omission.” But, an honor is an honor. And, its being conferred in whatever way cannot escape the conclusion—or to use Rob’s term, confusion—that the particular person’s defiance of Church teachings is permissible. It is not. Again, there are contexts where those who stand in defiance may nonetheless be able to participate in an event sponsored by a Catholic institution. But, let us be clear on one thing, an honor by any name is still an honor. Be it conclusion or confusion, observers will be given a message that is inescapable about the true nature of the institution that has extended the honor regardless of this institution’s claim to the contrary. It is Catholic, or it is not. Honoring a person or organization who may assert that it is for the “common good” and other important issues but is opposed to the Church’s teachings on issues for which there is no compromise or ability to disagree is support for the person or organization who persists in defiance—implicit or explicit. The “Catholic” institution that extends this support betrays its claim that it is Catholic. The person who cannot be honored might still be invited given the appropriate context without the honor being extended and without the inevitable conclusion or confusion that, in spite of the institution’s claim that it is Catholic is, in fact, otherwise.
Thanks to Michael P. for offering his thoughtful commentary on the recent Supreme Court decision in Citizens United. The decision has recently been critiqued on the ground that the majority did not follow precedent and undermined stare decisis.
Readers and contributors to the Mirror of Justice may recall that I have, in the past, addressed stare decisis in previous discussions, most recently [here].
The subject of stare decisis and what it is—that is, what is its essence, what is its nature, how is it to be explained and understood—is a topic that requires a robust and extended study. Nevertheless, the recent interest in and debate about stare decisis brought about by the decision in Citizens United merits a concise thought today.
I have expressed the view in the past that what is constitutive of stare decisis often reflects the likes or the dislikes of the speaker. For example, if one likes the decision and reasoning in Bowers v. Hardwick, then Lawrence v. Texas ignored stare decisis. If one is attached to Roe v.Wade, we can imagine forthcoming criticism of a decision that abandons Roe to a footnote in judicial decision-making.
Today I would like to suggest that stare decisis cannot be a doctrine supported by personal or political preferences where the will of the majority or the will of the most influential—be it on a court or in the res puclicae—is determinative of the legal principle to which adherence is expected. Stare decisis—if it is to mean anything to the making and enforcing and interpreting of sustainable, righteous, and moral legal norms—must be coherent with the intellect and the right reasoning that promote norms that are sustainable, righteous, and moral. When stare decisis betrays this coherence, the law is what the law-maker wants it to be, not what it should and must be. Without this formula in mind, stare decisis is a mere political tool that eschews the coherence essential to the vitality of laws that distinguish between right and wrong, truth and falsehood and to the rule of law indispensable to the legal enterprise.
I, too, join those who look forward to discussing Fr. Jim Keenan’s new book, A History of Catholic Moral Theology in the Twentieth Century—From Confessing Sins to Liberating Consciences. Perhaps we at the Mirror of Justice may discuss his book after we have discussed Sister Margaret Farley’s Just Love. I am confident that the Keenan book will provide an abundance of grist for our dialogue as we consider his thoughts on moral theology. I am not sure that I would agree with the promotional material’s statement that moral theology has been replaced by the term “theological ethics” especially when one considers the continuing impact and vitality of Veritatis Splendor. After all, the teachings of the Second Vatican Council, which specifically exhorted Catholic scholars to exert special care to renew moral theology, cannot be misplaced, forgotten, or abandoned as John Paul II reminded us.
And what is this moral theology? We might consider as a beginning to answering the question that it is the consideration by the human person through the gift of right reason of the path (1) to pursue in one’s life toward the absolute truth who is God and (2) to perfect one’s life in accord with His desires for each person. The study of moral theology is, therefore, the avenue travelled by those who claim to be true in discipleship to Jesus Christ. It is the individual and communal reflective examination and appropriation of the moral teachings constitutive of the deposit of faith—the doctrine that guides us in living in right relation with God and with our neighbor, whoever the latter may be. It is, moreover, a proper exercise of authentic human freedom to be open to and cherish the wisdom of God which is essential for discerning right from wrong, truth from falsehood and for charting that course to do what is in accord with teachings that help us to do good and to avoid sin and sinful tendencies.
In this enterprise of moral theology it is vital to recall that not all interpretations of the morality permeating the deposit of faith are sound moral teachings. This becomes evident as the problems with consequentialism and proportionalism surface. So, in order to avoid such problems, it is typically useful to consider how does one exercise right reason to go about charting the course of doing that which is good and avoiding that which is sinful? Again we might return to the Second Vatican Council and one of the fundamental questions it raised: quid est homo? (What is man, what is the human person?) By entertaining this question we encounter another one: what is the meaning of human life including its destiny? Well, for Catholics, it is union with God, but to achieve this union, seeking and living the moral life that essential to the dignity and nature of the human person are essential. But here we must take stock of the fact that the Church’s moral teachings remind us that if we consciously persist in our sins without seeking reconciliation with God and neighbor, the quest for the moral life will fail not because of God’s desire but because of the human will.
Of course, human freedom and the exercise of the well-formed conscience are also vital to the salvation promised to those who pursue the moral life and the truth about human existence who is God. Here it must be recalled that freedom is not the absolute, subjective desire which the individual wishes but the freedom to choose consciously what God asks, i.e., union with Him. This line of thought seems to be absent from the Keenan book’s promotional statement, but it may well be in the book. Looking at some of the chapter headings, I do wonder if the sense of truth who is God is replaced with the contemporary substitute for truth which often manifests itself in a phrase such as “contemporary standards”? If contemporary standards are the touchstone for defining what is moral or ethical, then the truth about our human nature and destiny may well be displaced by a subjective conscience who knows not God but only the self. If this be the case, we ought to ponder the counsel of John Paul II that “this individualism leads to a denial of the very idea of human nature.” Christian freedom cannot be based on the autonomy of the isolated self; rather, it must incorporate the other who is God. Therefore, the Christian moralist must eschew the ethical order that has its sole base in human origin and the views endorsed by the surrounding or popular culture and endorse the one that is committed to the path of salvation—the path which surely begins but does not end in this world.
The final point for this posting follows: the Christian moralist, like any Christian, must be a person of prayer. What prayer might be appropriate to the Christian as he or she engages in the dialogue about Fr. Keenan’s book? Perhaps this one: Lord have mercy on me, a sinner. It is a prayer that reminds the person who he or she is and where he or she is going as one travels the road to God.
A reader of the Mirror of Justice has posed three questions to me regarding the challenge to California’s Proposition 8 that is currently being challenged in Federal District Court in San Francisco. The three questions are these:
1. Is there a right to marriage? (Loving v. Virginia recognized a civil right to marriage, but is there a difference between a civil right and a natural right to anything?),
2. Is there such thing as marriage equality?, and
3. How are we supposed to understand equality, and the Equal Protection Clause of the 14th Amendment of the US Constitution?
I have discussed the relationship between Loving v. Virginia and the claims seeking the recognition of same-sex marriage here at MoJ and elsewhere. My efforts in discussing this pressing issue are based on the view that Catholic legal theory has something to say on the matter and that its perspective is applicable to the general public, Catholic or not, in furtherance of the common good. Here are some preliminary responses to our reader’s questions on the general issue of same-sex marriage and a few particulars about the Perry case.
1. In Loving the Supreme Court of the United States held that the laws of the Commonwealth of Virginia prohibiting marriage between a man and a woman of difference races violated the Constitutional rights of interracial couples consisting of one man and one woman. Does this mean that all prohibitions against marriage between two people come under the purview of Loving? I think that common sense, biological facts, general Constitutional doctrine, and Catholic legal theory would say no to this question: not all prohibitions against marriage infringe on the rights conferred by Loving on interracial couples. By way of illustration: polygamous groups, couples where one or both persons is or are young minors, and couples who are closely related by blood cannot claim the right conferred by the Loving doctrine. I contend that Catholic legal theory supports the argument that same-sex couples are in the same boat as polygamous groups, minors, and closely related blood relatives. Why? The claims made by an interracial couple are substantively different from those made by a same-sex couple—just as they are different from those of polygamous groups, young minors, and close blood relatives. I further contend that civil and natural rights must have some basis in facts that permit some distinctions but not others between or among people. This is why Catholic social thought relies on the distinction between “discrimination” and “unjust discrimination.”
2. The question “is there such a thing as marriage equality?” is too broad for a prudent answer without examining contexts of application. As my response to the first question suggests, there are some important facts that can justify distinctions that need to be considered regarding claims to “marriage equality.” Having read the Complaint in Perry v. Schwarzenneger, I acknowledge that the claim to equality is vital to the case which the plaintiffs present. But, are they in fact truly equal to opposite-sex couples? Let me pose a hypothetical to which I think both the civil law and Catholic theory would have the same response regarding the Complaint’s allegations about equality: two planets capable of sustaining human life are colonized by human beings from earth. To the first planet only opposite-sex couples who are “married” are sent. To the second planet, only same-sex couples who are “married” are sent. Let us assume that there are no sexual relations in either grouping outside of the partnership established by the “marriage” and that neither planet has the capacity for technology-assisted births. Assuming no further contact with the planet Earth and its inhabitants, in one hundred years which planet will likely still have human life? The answer should be clear. It is easy to declare something equal with something else, but in fact it may well be not.
3. I submit at this point that my responses to the first two questions shed some light on how the third is and must be addressed. However, I will offer this thought here: the law restricting marriage to opposite-sex couples applies equally to all people regardless of their sexual orientation. Any man can marry any woman—taking into consideration such factors as age and blood relation—and, any woman can marry any man taking stock of the same considerations just mentioned. This norm applies across the board equally. This is an important point that the Complaint does not choose to acknowledge. It insists, however, that “gay and lesbian individuals are therefore unable to marry the person of their choice.” Yet the same prescription applies to close relatives and to persons below a certain age who are also denied marrying “the person of their choice.” The further claim that California law “treats similarly-situated people differently” is false because opposite-sex and same-sex couples are not and never will be similarly-situated notwithstanding claims to the contrary. In this regard, all share the same rights and face the same prohibitions. This is equality pure.
Those who may wish to provide material relief to our sisters and brothers in Haiti can contribute to the Jesuit Refugee Service, USA. The JRS's website that facilitates donations is here.
In addition to financial aid, I am sure that the victims of the devastation and relief workers would also be grateful for our continuing prayers.
I recently read the address given by Pope Benedict to the alumni, rector, and students of the Pontifical North American College in Rome this past weekend. [address HERE] The College was celebrating its one hundred and fiftieth anniversary. In his remarks to those in attendance, the Holy Father noted that the College has the mission of educating and producing “wise and generous pastors capable of transmitting the Catholic faith in its integrity, bringing Christ’s infinite mercy to the weak and the lost.” But the Pope also noted that the mission of these pastors-in-formation is to “enabl[e] America’s Catholics to be a leaven of the Gospel in the social, political and cultural life of their nation.”
I paused to consider whether this last element—to enable America’s Catholics to be a leaven of the Gospel in the social, political, and cultural life or our nation—represents an important component of what we here at the Mirror of Justice are attempting to do in our formation of Catholic legal theory? My answer to this question is: yes!
As educators, we prepare younger men and women for careers in the legal profession and other fields where legal training is or may be relevant to their vocation. Regardless of where our students find themselves later in life, they will have a significant influence on forming the social, political, and cultural institutions of the United States and beyond. Hence, it may prove worthwhile to commence each day with a series of related questions: Where is Christ in my life? How will I present Him to those whom I encounter? Will the Gospel inspire my work this day? Will the deposit of faith accessible through the Church’s teachings influence the questions I raise and the issues I address with those whom I deal? Will the Catholic intellectual tradition that has permeated the transmission of our faith be an essential element of what I do, what I say, how I conduct myself, and how I think?
It strikes me that Pope Benedict’s message to present and future pastors, in fact, has the potential to mold positively the discipleship of a much wider group of individuals including those who attempt each day to contribute to the development of Catholic legal theory.
Fr. Araujo rightly observes the tension between the types of rationality that dominate contemporary legal reasoning and the types of reasoning that Catholics see as harmonious with faith. His question for us points deeper into the nature and structure of legal reasoning and the values that it advances.
John Paul II was particularly aware of the tensions between scientific rationality and the faithful Catholic life. In Fides et Ratio, he wrote that Mary, the Seat of Wisdom, is the “sure haven for all who devote their lives to the pursuit of wisdom.” (108) The encyclical interprets her “unqualified yes to Gabriel’s message as a leap of faith that made possible the salvation of all persons.” It is this parable of Mary that illustrates the proper relation of faith and reason that Catholic philosophers should seek to emulate. Just as she put aside her worldly concerns so that “the Word might take on flesh and become one of us,” so too should the faithful Catholic philosopher offer natural reason in the service of the divine. The encyclical notes that the “ancients” saw Mary as the “table of intellectual faith. In her they saw a suitable image of true philosophy and realized that they must be philosophizing with Mary.” Taken in this light, Catholic thought is engaged in the pursuit of true wisdom when it thinks like Mary thought.
Imagine the full human range of reason and emotion that Mary would have experienced. The feelings of joy, fear, confidence, self-doubt, pride, humility, triumph, wonder, awe, and mystery. What were Mary’s self-understandings? Surely, her heart and mind were united in her affirmation of her role in God’s plan. Mary knew what the modern world has only recently begun to re-discover, that rationality and affectivity are inseparable (see for example, Antonio Damasio’s Descartes' Error).
The reduction of the fullness of human reason to the dispassionate discursive rationality of scientific inquiry is particularly troublesome for lawyers. In her interesting book, The Language of Law School, the linguistic anthropologist, Elizabeth Mertz, suggests that legal education, particularly in the first year, promotes objective, dispassionate modes of legal analyses, which denude the student of moral intuitions and empathetic emotion. What’s more, this sort of disengagement from moral feeling may be necessary for the professional formation of the contemporary America lawyer. Nonetheless, when legal education and legal reasoning obscure the fullness of human wisdom in favor of instrumentalism, consumerism, and fanciful conceptions of autonomy, we should rightly be aghast, because as St. Augustine taught, the emotional detachment of the Stoic is fundamentally incompatible with a faithful Christian life.
Over the past several days the Mirror of Justice has hosted a spirited debate on a variety of themes that have offered perspectives of colleagues and friends on matters that are important to the law and, therefore, Catholic Legal Theory.
One of themes addressed in recent postings has been the role of reason. Reason and how it is utilized has a definite bearing on the law and how the law addresses or should address issues including homosexuality, same-sex marriage, sexual/reproductive autonomy, and abortion.
As has been observed by other members of the Mirror of Justice family, reason is crucial to the law and, therefore, Catholic Legal Theory. Of course the natural law tradition, so much a part of the Catholic understanding of legal matters, places an emphasis on right reason in this endeavor. But as Time Magazine in its essay on John Courtney Murray rhetorically asked almost fifty years ago, whose reason is right? What makes reason right? What is vital to its method?
Let me offer a few suggestions in this regard.
The first would be this: I consider that most people have the ability to exercise right reason. They are born and equipped with the intellectual capacity to think about issues, events, happenings, etc. in such a way as to see more clearly what is at stake and what is involved. Of course, this task requires patience: patience with one’s self and patience with what is being considered and studied. The exercise of right reason does not require the distinctive and super-human acumen of Professor Ronald Dworkin’s Judge Hercules. It does require, however, fidelity to a thoughtful and objective process, and patience is a virtue needed to facilitate this process.
A second matter deals with how a person conducts one’s self in the intellectual enterprise of reasoning that brings together observation, consideration, and evaluation (both normative and moral). Initially, we all see and think about the universe that surrounds us from a personal perspective. Hence we begin our reasoning from a subjective point, but this does not mean that we should stay there throughout the entire process in which we exercise reason. Our subjective perspective must sooner or later be tempered by objectivity. I know some of my Mirror of Justice friends are likely to challenge me on this because they have done so in the past. Let me present the point once again: objectivity is that ingredient that enables the individual who exercises reason to transcend the familiar, the desirable and get closer to the truth.
Ah, yes, the truth. This is the third matter which I wish to raise today in what may well be but an installment in the project of our ongoing discussion and possible debate. Is there truth about anything? One may insist that he or she knows the truth, but in fact confuses the familiar that is comfortable to or desired by this person with what is beyond the known, the familiar, the desirable. For the Catholic, be he or she legal theorist or otherwise, there is one Truth, who is God. The closer we become to God, the closer we become to the truth that enables us to see what is right and what is wrong with the positions we hold and assert. As we acknowledge that some positions are right and some are wrong, our reasoning is more inclined to be associated with the modifier right. As one long-involved with the process called legal reasoning, I don’t often see the case made for including in it the Truth who is God. So be it. But if one professes or asserts that his or her legal reasoning is a part of the Catholic world, then God as Truth is indispensable to his or her participation in the process of legal reasoning.
Indeed, rigorous thought and exhaustive evidence gathering are a part of the process of legal reasoning, too. For many but not all, compassion, mercy, and forgiveness are also essential elements. But so is the ability to hone those skills necessary to distinguishing right from wrong, truth from falsehood.
I look forward to what my friends here at the Mirror of Justice might have to say about these thoughts.
In the meantime, a blessed New Year to you all! May God who is mercy and truth be with us, and may Mary, Seat of Wisdom and Mirror of Justice, pray for us. Amen.
